Under what conditions may the prosecutor ask a judge to examine a witness before the first trial hearing, and what must the judge do for the accused?
General information · Not legal advice
Material to check
In a practice file we read the prosecutor's written application and the reasons stated in it, the record showing that the named person refused to appear or testify, and the date of the first trial hearing, since the application is limited to the time before it. We also look for the notice sent to the accused, the suspect or defence counsel setting the examination date, and any attendance note from that examination.
These are types of material to look for, not evidence already verified by PRO SE.
Where readings differ
A person clearly found to know facts indispensable to a crime investigation, who has refused to appear or testify, may be named in a prosecutor's application to a judge, but only before the first trial hearing. The application must be in writing with its reasons shown, the judge who receives it has the same authority over the examination as the court or presiding judge, and when the judge fixes an examination date the accused, the suspect or defence counsel must be notified so that they can take part in it.
Another reading stresses the limits: only a person who has refused to appear or testify falls within the application, and only before the first trial hearing, so a request after that hearing has begun has no basis in this provision. The provision also says the judge sends the documents on examination to the prosecutor promptly, but leaves open what participation in the examination means in practice, since it sets no duty to serve those documents on the accused or defence.
Your judgment
If defence counsel attended the examination, how could the file show which questions served the accused's defence rather than only the prosecution's case?
PRO SE does not make this decision or keep a case record on this public site.When to reconsider
We look at this again if the provision is amended to change the time window, the notice duty or the accused's participation rights, or if a court decision rules on whether the examination documents may be used as evidence at trial.