Can I Be Prosecuted as an Accessory if I Refuse to Testify?
Accessory v. Accomplice
This is an interesting question and, at the outset, let’s differentiate an “accessory” from an “accomplice.” Generally, an accessory is someone 
who helps someone escape arrest, trial, or conviction, but is not involved in the crime themselves; whereas an accomplice is a person who aide in the commission of the crime itself. This distinction is important to understand.
The question of what is an accessory came up in the recent California Supreme Court case of People v. Partee. In that case, the defendant received a subpoena in a gang killing case in Los Angeles and refused to testify, even though the prosecutor offered her immunity and also offered to put her in a witness relocation program to protect her. She refused and was charged with being an accessory to a felony, which itself is a California felony crime.
The California Supreme Court began by discussing the elements of being an accessory, which is described in Penal Code section 32. Those are:
- Someone other than the alleged accessory committed a felony;
- The accused harbored, concealed, or aided the felon;
- The accused knew that the person committed a felony or was charged or convicted of the felony; and
- The accused intended that the felon escape arrest, trial, conviction, or punishment.
People v. Partee
The Court discussed whether Partee’s act, i.e., refusing to testify at trial, was an act to “aid” the defendants in the gang case. The Court noted that, in a vacuum, one can “aid” another through inaction, the law has not been understood in this manner. That is, the word “aids” in Penal Code section 32 always was understood in the law to mean taking some sort of affirmative step or action. The Court noted that one could not be convicted of being an accessory for remaining silent in the face of police questioning. The Court ruled here that Partee’s actions, i.e., remaining silent in the face of the prosecutor’s questions, could not give rise to an accessory charge and the fact that she was offered immunity and witness protection and was under subpoena did not change as she was accused of from inaction to an “act.”
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