By Sofia Hosseinzadeh
MODESTO, CA – During a preliminary hearing here in Stanislaus County Superior Court Wednesday, a witness, who is also the alleged victim in the case, expressed her desire to not testify against the accused.
Judge Kellee Westbrook would not allow the witness to refuse to testify unless the witness formally invoked the Fifth Amendment, but ultimately referred the witness to attend counseling before testifying again.
The court was informed on Nov. 10 the accused jumped over the backyard fence of the witness’ home and entered the property to grab his belongings. The accused allegedly had a physical altercation with the witness, leaving her with a bruise on her arm.
Later, the accused and witness had another argument, allegedly resulting in the witness being hit on the face and in the lower abdomen leaving bruises on both parts of her body.
Before the witness’ testimony, Judge Westbrook noted Deputy District Attorney Zynal Azis’ suggestion to possibly have the witness go to counseling with Haven, for domestic assault survivors, before testifying. But the DDA proceeded to allow the witness to testify.
After being asked a question about what she witnessed on the day of the altercations, the witness refused to answer. “I don’t want to testify,” she responded.
“At this point we would like her to be referred to Haven,” DDA Zynal said in response to the witness’ statement,
“You’re refusing to answer any questions about this event?” Judge Westbrook asked the witness.
After the witness expressed her preference to not discuss the day of the crime, Judge Westbrook allowed DDA Zynal to continue questioning, and DDA Zynal asked the witness once again to tell the court what she saw on the day of the crime.
“I don’t wanna answer that,” the witness answered.
“I have to order her to answer,” Judge Westbrook responded, arguing the witness cannot refuse to testify unless she invokes the Fifth Amendment.
“She hasn’t indicated that she’s asserting the 5th Amendment privilege,” asserted Judge Westbrook, “At this point if she’s just outright refusing to testify I’m going to refer her to Haven,” explaining the witness either needed to explicitly express her desire to invoke the 5th or receive counseling before attempting to testify again.
After Judge Westbrook and DDA Zynal asked the witness why she feels uncomfortable testifying, Alternate Public Defender Amy Kennedy interjected, “I don’t think that’s relevant to these purposes” before the witness could explain her reasoning for not wanting to testify.
While APD Kennedy attempted to explain her reasoning why Judge Westbrook and DDA Zynal cannot question the witness over her refusal to testify, Judge Westbrook interrupted with her explanation.
“Well I think if she’s asserting 5th Amendment rights to remain silent then the prosecutor has the ability to grant her immunity and not have her testify,” Judge Westbrook argued, “If she’s just outright refusing because she doesn’t want to, I’ll say that I’ll order her to, but I can’t force her after she goes to Haven.”
APD Kennedy responded, “Your honor, there’s been no conversation to invoke…My client is also quite young and I think unfamiliar with all of this, so I think it’s somewhat tricking her into answering questions because she’s never been in a situation like this before.”
Kennedy argued Judge Westbrook’s requirement for an explicit plea to the “Fifth” may be an unfair demand for the witness because of her young age.
The case will be continued until Dec 13.
