Refuse to Testify and Become an Accessory to Murder? Maybe in California.

It’s 2006. Starletta, an LA woman rents a car and lets her brother – a gang member – borrow it one evening so he can meet up with a girl. But the meeting never happens. Instead, the next morning Starletta gets a call from a family friend, Clark (another gangster), who tells her that she should report the car as stolen and pick up the brother, Clark and two others (surprise, surprise – both gangsters) at a motel.

Starletta arrives, and the trigger-happy quartet promptly spills the beans. Instead of finding a girl, they found a rival gang. Shots started flying. A rival fell dead, and the four men abandoned the rental car before fleeing to the motel. They tell Starletta that the police would never find the guns.

Notwithstanding the gangsters’ prophecy, the police find enough to interview Starletta, who explains her story in detail. The four men are promptly arrested and charged with murder. Fast forward to 2008. The case is on trial. But Starletta – and her story – have disappeared. Without their key witness, the State dismisses the case and the men walk free.

For seven years Starletta flies under the proverbial radar until, in 2015, she pops back up. She is promptly subpoenaed and, this time, the State takes no chances. They hold Starletta in custody to assure that she will have some free time to testify in the (now re-filed) case against our band of gangsters. To satisfy any fifth amendment concerns, the State gives her immunity. But, the always-loyal Starletta nonetheless refuses to say a word. The judge holds her in contempt, but Starletta, unfazed, remains steadfast in her refusals.

The State then takes the extraordinary step of charging Starletta with four felony counts of aiding and abetting (along with misdemeanor criminal contempt). At her own trial, Starletta finally starts talking. She tells the jury that she feared retaliation from the gangs and did not want to alienate her friends and family. But she also says that she did not want to see her brother and the other gangsters go to prison because of her testimony. A big mistake – one which led to a conviction and a sentence of 365 days in jail.

Why? The State’s theory was that, by refusing to testify, Starletta was helping people that she knew had been charged with a felony avoid punishment. This lines up nicely with the elements of the after-the-fact accessory statute in California:

(1) someone other than the accused, that is, a principal, must have committed a specific, completed felony;

(2) the accused must have harbored, concealed, or aided the principal;

(3) with knowledge that the principal committed the felony or has been charged or convicted of the felony; and

(4) with the intent that the principal avoid or escape from arrest, trial, conviction, or punishment.

Starletta is someone other than the accused (element 1), who has knowledge that the accused have been charged with a crime (element 3), and who admits that she won’t testify – at least in part – because she wants her brother and company to stay out of jail (element 4).

The only question, then, is whether simply refusing to testify falls within the scope of “harbored, concealed, or aided.” Clearly, Starletta did not “harbor” or “conceal” anyone, so the questions is – what does “aided” mean? On the one hand, courts in California typically read this word require an affirmative act in aid of the accused. This could be, for instance, a false statement to the police that throws them off the trial.1 But it doesn’t include simply not talking to the police about a crime, even if you know who committed that crime.

In contrast to affirmative falsehoods, the mere passive failure to reveal a crime, the refusal to give information, or the denial of knowledge motivated by self-interest does not constitute the crime of accessory.

Thus, a person generally does not have an obligation to volunteer information to police or to speak with police about a crime. If the person speaks, however, he or she may not affirmatively misrepresent facts concerning the crime, with knowledge the principal committed the crime and with the intent that the principal avoid or escape from arrest, trial, conviction, or punishment.

So, lying to the police is a criminal “act” in aid of the accused, but not simply clamming up – that is merely a passive non-act, and thus non-criminal. But if that is the case, why can the State charge Starletta with a felony (or four) for essentially the same thing – simply not speaking when called upon?

The answer, according to a 2-to-1 decision from the California Court of Appeals, is that a witness who (like Starletta) has been granted immunity has a legal duty to testify when subpoenaed. She has no option to refuse. Thus, by not testifying Starletta is affirmatively ignoring her legal obligations, bringing her within the scope of the accessory statute:

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.

If you think this reasoning may be a bit strained, you’re in good company with Judge Baker, the lone dissenter on the appellate panel. In Judge Baker’s view, aiding an accused requires something more than simply refusing to aid his accusers:

While it might fairly be said defendant refused to aid the prosecution, that does not mean she also thereby aided her brother and the other accused men.

As for the theory that ignoring a legal duty is tantamount to an affirmative action? Judge Baker is not impressed. In his view, there is a remedy for such failures to act – criminal contempt.

It is of course true that criminal liability for failure to act can only attach where there is a duty to act, but that does not resolve the key question, namely, what criminal liability? Defendant refused to testify when properly compelled, and there is a remedy for that: criminal contempt. The majority's argument therefore at most proves that defendant was properly convicted of some criminal offense and offers nothing persuasive to specifically establish that a conviction for "aiding" her brother and the other men.

The case is now on appeal at the California Supreme Court.

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