Defense Expert as Investigating officer
PI’s at defense table
While a witness is under examination, the magistrate shall, upon motion of either party, exclude all potential and actual witness who have not been examined.
The magistrate shall also order the witnesses not to converse with each other until they are all examined. The magistrate may also order, where feasible, that the witnesses be kept separated from each other until they are all examined.
This section does not apply to the investigating officer or the investigator for the defendant, nor does it apply to officers having custody of persons brought before the magistrate.
Either party may challenge the exclusion of any person under this section. Upon motion of either party, the magistrate shall hold a hearing, on the record, to determine if the person sought to be excluded is, in fact, a person excludable under this section.
Also, this language is in PC 1538.5 (c) 4. PC 867 expressly excludes investigators, including defense investigators, from those laws requiring judges to exclude witnesses during criminal proceedings. Additionally, investigators can stay in the court room while others testify EVEN IF the investigator is expected to be a future witness. We note there is no comparable statutory provision in the code covering civil trials.
Reference:
David D. Queen, Esq., “The CA Private Investigators Legal Manual,” 3rd Ed., which includes a section on this very issue, and I quote (p. 15):
Case law suggests that civil trial judges have the inherent power to exclude witnesses from the court room until they testify. The standard of review is whether the trial judge abused his or her discretion in doing so. Isaman v. Steinberg B198503 (Cal App. 2d, February, 2009).
If the PI has performed any case review, interviews, etc., they have de facto become a defense investigator. Then, the defense attorney designates the P.I. as a defense investigator in court, and it’s a done deal.
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From: Ralph Nosek pi@sfbaysleuth.com Date: Mon, Nov 13, 2017 2:22 am
867 pc apply to exclusions but a good place to start. Some judges will argue that it applies to hearings only. The judge can not bring the motion. Must be brought by the prosecution or the defense. If the defense investigator put the case together, it can be argued by the defense that exclusions against the defense investigator have no basis for a reasonable exclusion.
You might want to check out the Equal protection clause, as I know that argument has been used as well. I don’t have specific references but I know 14th amendment issues have bene raised during trials and hearings that I have participated in.
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From: “Brian Holmes” <b.holmes@safetek.com> Date: Sun, Nov 12, 2017 11:39 pm
To: <ron@rlainvestigations.com> Greetings Ron –
An attorney can simply state, “Under 867 I am designating Mr. X as my investigator in this matter, and therefore he is not excluded as a witness.” That should be all it takes. To clarify, CAPC 867 allows an Investigator to stay in the courtroom (i.e. not be excluded as a witness), however, it’s up to the judge to determine if the investigator can sit with counsel (at the table/desk) or not. Personally, I’ve never been excluded from sitting with counsel, even on an occasion when the D.A. (Orange County) repeatedly objected.
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