Q: when an affiant gives oral affidavit for warrant to magistrate is it transcribed at all with probable cause statement
for the defendant to be able to see what the grounds were for approving it?
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- California
- (916) 704-3009
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- Answered
A:
Under California law, when an officer provides an oral affidavit to a magistrate to obtain a warrant, the statement must be recorded and transcribed to create a record of the probable cause that was provided.
Specifically, California Penal Code Section 1526(b) states:
"In lieu of the written affidavit required in subdivision (a), the magistrate may take an oral statement under oath under one of the following conditions:
(1) The oath shall be made under penalty of perjury and recorded and transcribed. The transcribed statement shall be deemed to be an affidavit for the purposes of this chapter."
This transcribed oral statement then serves as the affidavit supporting probable cause for the warrant. The defendant and their counsel have a right to access and review this transcript to understand the basis upon which the warrant was granted.
So in summary, yes - when an officer provides oral testimony to a magistrate in California to secure a warrant, that statement must be recorded, transcribed, and made available to the defendant. This ensures transparency and allows the defendant to challenge the probable cause determination if warranted.
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