Code Section Group

Penal Code - PEN


  ( Part 2 enacted 1872. )


  ( Title 10 enacted 1872. )

CHAPTER 5. Examination of Witnesses on Commission [1349 - 1362]
  ( Chapter 5 enacted 1872. )


When an issue of fact is joined upon an indictment or information, the defendant may have any material witness, residing out of the state, examined in his behalf, as prescribed in this chapter, and not otherwise.

(Amended by Stats. 1980, Ch. 676, Sec. 253.)


When a material witness for the defendant resides out of the State, the defendant may apply for an order that the witness be examined on a commission.

(Enacted 1872.)


A commission is a process issued under the seal of the Court and the signature of the Clerk, directed to some person designated as Commissioner, authorizing him to examine the witness upon oath on interrogatories annexed thereto, to take and certify the deposition of the witness, and to return it according to the directions given with the commission.

(Enacted 1872.)


The application must be made upon affidavit, stating:

1. The nature of the offense charged;

2. The state of the proceedings in the action, and that an issue of fact has been joined therein;

3. The name of the witness, and that his testimony is material to the defense of the action;

4. That the witness resides out of the State.

(Enacted 1872.)


The application may be made to the Court, or a Judge thereof, and must be upon three days’ notice to the District Attorney.

(Amended by Code Amendments 1880, Ch. 25.)


If the Court to whom the application is made is satisfied of the truth of the facts stated, and that the examination of the witness is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony; and the Court may insert in the order a direction that the trial be stayed for a specified time, reasonably sufficient for the execution and return of the commission.

(Amended by Code Amendments 1880, Ch. 47.)


When the commission is ordered, the defendant must serve upon the District Attorney, without delay, a copy of the interrogatories to be annexed thereto, with two days’ notice of the time at which they will be presented to the Court or Judge. The District Attorney may in like manner serve upon the defendant or his counsel cross-interrogatories, to be annexed to the commission, with the like notice. In the interrogatories either party may insert any questions pertinent to the issue. When the interrogatories and cross-interrogatories are presented to the Court or Judge, according to the notice given, the Court or Judge must modify the questions so as to conform them to the rules of evidence, and must indorse upon them his allowance and annex them to the commission.

(Enacted 1872.)


Unless the parties otherwise consent, by an indorsement upon the commission, the Court or Judge must indorse thereon a direction as to the manner in which it must be returned, and may, in his discretion, direct that it be returned by mail or otherwise, addressed to the Clerk of the Court in which the action is pending, designating his name and the place where his office is kept.

(Enacted 1872.)


The commissioner, unless otherwise specially directed, may execute the commission in the following order:

(a) He or she shall publicly administer an oath to the witness that his or her answers given to the interrogatories shall be the truth, the whole truth, and nothing but the truth.

(b) He or she shall cause the examination of the witness to be reduced to writing and subscribed by the witness.

(c) He or she shall write the answers of the witness as near as possible in the language in which he or she gives them, and read to the witness each answer as it is taken down, and correct or add to it until it conforms to what he or she declares is the truth.

(d) If the witness declines to answer a question, that fact, with the reason assigned by him or her for declining, shall be stated.

(e) If any papers or documents are produced before him or her and proved by the witness, they, or copies of them, shall be annexed to the deposition subscribed by the witness and certified by the commissioner.

(f) The commissioner shall subscribe his or her name to each sheet of the deposition, and annex the deposition, with the papers and documents proved by the witness, or copies thereof, to the commission, and shall close it up under seal, and address it as directed by the indorsement thereon.

(g) If there is a direction on the commission to return it by mail, the commissioner shall immediately deposit it in the nearest post office. If any other direction is made by the written consent of the parties, or by the court or judge, on the commission, as to its return, the commissioner shall comply with the direction.

A copy of this section shall be annexed to the commission.

(Amended by Stats. 1989, Ch. 1360, Sec. 115.)


If the commission and return be delivered by the Commissioner to an agent, he must deliver the same to the Clerk to whom it is directed, or to the Judge of the Court in which the action is pending, by whom it may be received and opened, upon the agent making affidavit that he received it from the hands of the Commissioner, and that it has not been opened or altered since he received it.

(Amended by Code Amendments 1880, Ch. 47.)


If the agent is dead, or from sickness or other casualty unable personally to deliver the commission and return, as prescribed in the last section, it may be received by the Clerk or Judge from any other person, upon his making an affidavit that he received it from the agent; that the agent is dead, or from sickness or other casualty unable to deliver it; that it has not been opened or altered since the person making the affidavit received it; and that he believes it has not been opened or altered since it came from the hands of the Commissioner.

(Enacted 1872.)


The clerk or judge receiving and opening the commission and return shall immediately file it, with the affidavit mentioned in Sections 1358 and 1359, in the office of the clerk of the court in which the indictment is pending. If the commission and return is transmitted by mail, the clerk to whom it is addressed shall receive it from the post office, and open and file it in his or her office, where it must remain, unless otherwise directed by the court or judge.

(Amended by Stats. 1987, Ch. 828, Sec. 89.)


The commission and return must at all times be open to the inspection of the parties, who must be furnished by the Clerk with copies of the same or of any part thereof, on payment of his fees.

(Enacted 1872.)


The depositions taken under the commission may be read in evidence by either party on the trial if the court finds that the witness is unavailable as a witness within the meaning of Section 240 of the Evidence Code. The same objections may be taken to a question in the interrogatories or to an answer in the deposition as if the witness had been examined orally in court.

(Amended by Stats. 1965, Ch. 299.)

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