Post-Conviction Relief for Immigrants

(B)  Evidence Issues.  The court may often decide a motion without hearing live testimony.[234]  The prosecution cannot exclude from evidence the declaration of a witness who is not a party (such as immigration counsel) in support of a motion.  The court should not exclude the declaration of the defendant from evidence unless the defendant refuses to answer material questions on cross-examination.[235]  If the court does not hear live testimony then the defendant does not refuse to answer material questions on cross-examination, and there is no basis on which to exclude his or her declaration from evidence.[236]

[234] People v. Superior Court (Zamudio), 23 Cal.4th 183 (2000).

[235] Id. at p. 21, distinguishing People v. Williams, 30 Cal.App.3d 502, 510 (1973).

[236] Id. at 21.