Criminal Law

Refusal to Testify = Being Accessory After the Fact

An interesting 2018 California case I just came across.


In People v. Partee (Cal. Ct. App. 2018), defendant was convicted not just of misdemeanor contempt but also of being accessory after the fact to murder for refusing to testify against family members in a gang killing case; defendant said that

She feared retaliation by the gang (she had experienced retaliation in the past); she feared for her safety and that of her daughter; she did not want to alienate her family; all four of the accused were family to her, and she did not want them to go to prison for the rest of their lives because of her testimony. Defendant further acknowledged that when she refused to testify in 2015 she knew her failure to appear as a witness in 2008 had led to the murder case being dismissed. But she denied she was helping her brother avoid trial. She testified: "Well, you guys are saying that I am helping my brother avoid trial. I believe you guys still have a case without me." She added that when her family members discovered she had spoken with Detective Skaggs, they told her not to testify because "[f]amily is first."

California law defines an accessory after the fact as

Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof ….

The offense could be punished as either a misdemeanor or a felony; here, defendant was sentenced to 365 days in jail and three years of probation for refusing to testify against family members. Defendant argued that her refusal to testify could only be punished as criminal contempt, and not on accessory-to-murder theory (which might in theory carry a much heavier penalty). The majority disagreed:

[D]espite being held in custody as a material witness and offered immunity and relocation, defendant's refusal to testify was motivated in part by the desire to ensure that her brother, cousin, and lifelong friends were not convicted and incarcerated. As a result, four accused murderers avoided trial and possible conviction. The prosecution, having tried in vain to compel defendant's testimony [including through a grant of immunity and offer of relocation], and no doubt desiring to discourage similar behavior by other witnesses, particularly in gang-related cases, resorted to the present prosecution. We find no legal authority precluding it….

Defendant claims she cannot be guilty as an accessory after the fact because her silence — refusing to testify — is not an affirmative act…. [But though t]he failure to act is not an `overt or affirmative' act unless there is a duty to act[,] … [a] witness who has been subpoenaed and given immunity that is co-extensive with the scope of her Fifth Amendment privilege has a duty to testify." Under these circumstances, defendant's "silence" was an overt or affirmative act falling within the terms of section 32 because she had a duty to testify at defendants' preliminary hearing.

Judge Lamar Baker, dissenting in relevant part, disagreed:

For 82 years, Penal Code section 32 has proscribed "harbor[ing], conceal[ing] or aid[ing] a principal" in his or her commission of a prior felony. Today, the majority affirms convictions under this statute that are, so far as the Attorney General is aware, literally unprecedented in its 82-year history. No California case has ever sanctioned use of Penal Code section 32, the accessory statute, to mete out felony punishment for a witness who merely opts to remain silent (as distinguished from a witness who affirmatively tells some falsehood in a police interview or while on the witness stand to throw the police or the jury off track). Indeed, while I cannot claim to have conducted a fully exhaustive survey, I have discovered no court in any jurisdiction nationwide that has ever sanctioned this sort of an accessory after the fact prosecution.

The oddity of today's decision is no accident, nor is it a manifestation of the old adage that there must be a first time for everything. It is rather a product of well-intentioned but flawed legal reasoning that courts have heretofore avoided: Believing the statutorily authorized criminal penalty for refusing to testify (six months in jail) is too light a punishment for refusing to testify against defendants charged with murder, the majority blesses the invocation of Penal Code section 32, which imposes a higher penalty. As I shall discuss, however, authority dating back at least 50 years explains that resort for what might be viewed as overly light penalties for contumacious witnesses must be to the legislative process. A prosecuting office's decision to type up felony charges using a statute ill suited to the task is no adequate substitute, and the majority errs by refusing to say so.

These are just brief excerpts; if you're interested, you can read the full opinions.

UPDATE: Prof. Charles Weisselberg notes that the California Supreme Court has agreed to rehear the case; thanks, and sorry I didn't notice that originally.

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  1. This shows, in my opinion, that the legal system’s definition of “beyond a reasonable doubt” is not the same as a common-sense person’s definition.

    A judge – a putative reasonable person – says that the defendant was not an accessory after the fact, yet because this judge is outvoted by the other judges, the defendant’s conviction is sustained. From the standpoint of the legal system, the defendant has been shown guilty beyond a reasonable doubt even though there was a divided vote among these presumably-reasonable judges over the basic question of whether what the defendant did was a crime in the first place!

    1. Under the legal system’s theory of the case, a unanimous jury verdict can’t help here because the jury isn’t supposed to decide whether what the defendant did was a crime or not – jurors were only supposed to decide such factual questions as the presiding judge submitted to them.

    2. Well, defendants are supposed to be acquitted unless there is proof beyond a reasonable doubt of the facts. But that standard has never applied to the underlying legal question of how the law should be interpreted — so, yes, if five Justices say the law covers X and four say it doesn’t, then a defendant who factually did X would remain guilty, even though there’s reasonable disagreement about the law.

      1. Indeed, I acknowledge the system uses this definition, I was disagreeing.

        1. Your argument is doubly misplaced. It’s wrong for the reason Prof. Volokh says, and for ignoring the fact that a jury found her guilty of this beyond a reasonable doubt.

          1. Really? A jury looked at the law and found beyond a reasonable doubt that the behavior of the defendant was covered by the statute?

            I thought juries were simply supposed to follow the instructions of the trial judge about what the law is, and confine itself to factual issues – i. e., did the defendant refuse to answer such and such questions after getting immunity.

            You’re basically asserting that the jury took upon itself to interpret the law. But your reflexive defense of the system blinds you to your own illogic.

            1. I hesitate to disagree with Prof. Volokh, but the jury is supposed to determine whether the state has proven beyond a reasonable doubt that the facts show the defendant committed all the elements of an offense.

              Do the facts in this case show her actions constituted “harbor[ing], conceal[ing] or aid[ing] a principal” in the commission of a prior felony?

            2. Really? A jury looked at the law and found beyond a reasonable doubt that the behavior of the defendant was covered by the statute?

              If they followed the instructions, yes. They would have been told that they had to find each element of the offense beyond a reasonable doubt.

              1. You’re really going to die on this hill, aren’t you?

                The jury, according the the established system we have, decides facts only.

                Therefore, their verdict had nothing to do with the issue – whether as a matter of legal interpretation the accessory statute covered the defendant’s behavior.

                That part was decided by the judges – not unanimously, because a putatively reasonable judge said the facts did not constitute a crime under the accessory statute.

                And you want us to believe that this is what a common-sense person would interpret as “beyond a reasonable doubt”?

                Which brings me back to my point which you have gone out of your way to ignore – that the system’s definition of beyond a reasonable doubt is not the definition of a common-sense person.

                1. I think we’ve conclusively established that you’re not able to discuss what common-sense people think.

                  1. No, we’ve established that your sneezes and your farts come from the same place.

                2. You are essentially asking that all criminal statutes be upheld by a unanimous judicial vote.

                  It’s not irrational, but it’s not how the system was set up.

                  1. “it’s not how the system was set up”

                    Really? It’s not as if I’ve been pointing out that precise point in several posts, indicating why I think the system is wrong.

      2. That distinction is certainly true. But it ignores (a) the rule of lenity and (b) the Due Process right to have a clear notice of what the criminal law proscribes.

        If a court is divided 5 to 4, that means that four learned justices believe that the statute at issue does NOT cover the charged activity. So I find it difficult to then conclude that the defendant had fair notice that the statute proscribed that very activity.

        A particularly egregious example of this I remember as a young associate was United States v. O’Hagan, 521 U.S. 642 (1997), where the Supreme Court affirmed the conviction for securities fraud under what is known as the “misappropriation” theory. That theory had been the subject of a major Circuit split, AND in a prior Supreme Court opinion, the justices had split 4-4 on whether it was valid. (Justice Powell had left and his seat was not filled). The issue ended up again at the SCOTUS, and it ruled over several dissents that the theory was valid. It frankly esacpes me how one could say the defendant had fair notice that the statute criminalizes his conduct when the highest court in the land was evenly split on that very question.

      3. If we required that the law someone is being charged under was being interpreted beyond a reasonable doubt then nobody would ever be convicted of anything. Just look at the varying interpretations of a “crime of violence” that are pinging around the federal courts.

        1. Just because laws are being pushed into areas where they don’t really apply, does not mean that most everyday law is ambiguous. Laws of the “don’t assault, rape, murder, steal” sort will almost always be applied in cases that aren’t questionable, even if they’re also being applied in questionable cases.

      4. “But that standard has never applied to the underlying legal question of how the law should be interpreted ”

        Actually, it has, historically. If you go back to all the classic triumphs of the jury system, such as the William Penn case, that’s exactly what the juries were doing.

        The current trend to restrict the jury to decided factual questions submitted to them by the judge isn’t the historic role of the jury, it’s the legal system’s effort to minimize the role of the jury as much as possible.

  2. Wouldn’t Ohio v. Reiner overturn this ruling?

    1. Why? She was granted immunity from prosecution for the underlying offense, and yet she refused to testify despite that — I don’t think she has a privilege against self-incrimination at that point. See Kastigar v. U.S. (1972).

      1. Eugene is correct. Otherwise, Grant’s of immunity would be meaningless. Statutes permitting prosecutors to obtain immunity for witnesses would be futilities.

        1. I was wondering exactly this, given the discussion some time back of a bizarre case where someone refused a presidential pardon because they didn’t want to be forced to testify.

    2. How so? She wasn’t asserting her Fifth Amendment right to remain silent. Further she was offered immunity anyway.

  3. It is uniformly settled, as least as a matter of federal law, that the crime of harboring or assisting a fugitive requires an affirmative act and that refusing to cooperate with the police is not such an act. I would not characterize refusing to testify as an affirmative act. Rather, the defendant simply chose to do nothing in response to a subpoena. I would argue that even though she had a legal obligation to testify, her refusal was still doing nothing.

  4. “I have no recollection of those events as you have described them, officer”.
    Repeat as necessary.

  5. A quick look at the statute cited seems to suggest that the statutory duty doesn’t arise until the witness formally invokes the privilege against _self_-incrimination, and the prosecution makes a subsequent written demand. Arguably, there’s a state interest in regulating post-invocation goings-on which is distinct from the interest in compelling testimony generally. Simply being mute of malice wouldn’t seem to offend.

  6. “We find no legal authority precluding [prosecution of the defendant as an accessory for refusal to testify]….” No legal authority precludes it? Hard case making bad law; hopefully reversible.

    1. That’s the problem with the decision right there. People have a constitutional right not to be prosecuted for a crime unless there is explicit positive authority to prosecute them for it. Putting the question in the reverse – saying people can be prosecuted unless there is legal authority not to – turns the constitution on its head.

  7. The behavior has been around for a very long time in many jurisdictions. The law has been around for a very long time in many jurisdictions. But the law has never before been thought applicable to the behavior. This fact alone, the existence of commonly-accepted settled law, ought to subject prosecutorial creativity to scrutiny, both as a matter of state-law stare decisis and rule of lenity, and as a matter of constitutional vagueness and ex post facto.

    If the legislature thinks existing law is too lenient for the behavior, it can pass new law by statute. But the people have a right to have such a grave matter as whether particular behavior should constitute a crime warranting putting them in prison for a long period of time decided in advance of their doing it and by their elected representatives in the legislature, not by the judiciary ex post facto.

    1. There’s a Scalia opinion, the cite for which escapes me, in which he states that it is a Due Process violation to have the crime for which you are prosecuted be defined for the first time on your appeal from your conviction.

  8. The essence, the core, of Due Process is no deprivation of liberty without notice and an opportunity to be heard. To abandon the notice requirement is to abandon the very heart of Due Process.

  9. The reasoning very obviously falls apart in key paragraph quote above:

    “[But though t]he failure to act is not an `overt or affirmative’ act unless there is a duty to act[,] … [a] witness who has been subpoenaed and given immunity that is co-extensive with the scope of her Fifth Amendment privilege has a duty to testify.” Under these circumstances, defendant’s “silence” was an overt or affirmative act falling within the terms of section 32 because she had a duty to testify at defendants’ preliminary hearing.”

    That there is a duty to do something does not transform inaction into action. Sometimes an overt act is not required in order to be culpable – for instance where a duty to testify arises. It seems that some kind of overt act is required to “aid” a felon. Otherwise, the court should just say that this aids the felon, over or not.

    Another potential issue is the applicability of double jeopardy. She was apparently punished for contempt and aiding a felon, and the “aiding,” is ostensibly based on the same qualifying facts for her contempt (“subpoenaed and given immunity that is co-extensive with the scope of her Fifth Amendment privilege”). I think the court’s logic here makes a double jeopardy claim stronger than it would have been.

  10. The defendant should get qualified immunity since it wasn’t clearly established that her behavior was unconstitutional.

    She should contact her union representative.

    1. I know you’re not joking, but this is funny.

  11. Finally, this very theory – that silence constitutes an affirmative act – is the theory used to convict Sir Thomas More of treason in a proceeding that has since been widely reviled as a tyrranical miscarriage of justice, the sort of infamous proceeding that the framers of the constitution had firmly in mind and wrote the Bill of Rights for the express purpose of preventing.

    No American court has any business condoning such a theory, let alone endorsing it.

    More: Not so. Not so Master Secretary. The maxim is qui tacet comsentire. The maxim is “Silence is consent.” If therefore, you wish to construe what my silence betokened, you must construe that I consented, not that I denied.
    Cromwell: Is that in fact what the world construes from it? Do you pretend that is what you wish the world to construe from it?
    More: The world must construe according to its wits. This court must construe according to the law.

    And so must the courts of California, however devilish they think the evil they might want to cut a road through the law to get after. For their own safety’s sake.

    “The law is not a light for you or any man to see by. The law is not an instrument of any kind. The law is a causeway upon which, so long as he keeps to it, a citizen may walk safely.”

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