Witness Unavailable for Trial California - Landmark Cases

Under the state and federal Constitutions, a criminal defendant has the right to confront the prosecution's witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. I, 15; People v. Herrera (2010) 49 Cal.4th 613, 620 110 Cal. Rptr. 3d 729, 232 P.3d 710 (Herrera).) "Although important, the constitutional right of confrontation is not absolute. " (Id. at p. 621; accord, People v. Thomas (2011) 51 Cal.4th 449, 499 121 Cal. Rptr. 3d 521, 247 P.3d 886.) An exception exists when a witness is unavailable, the witness testified against the defendant at a prior proceeding, and the witness was subjected to cross-examination. (Evid. Code, 1291, subd. (a)(2); Herrera, supra, 49 Cal.4th at p. 621.) A witness is unavailable if the prosecution "has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process." (Evid. Code, 240, subd. (a)(5).) On appeal, "we review the trial court's resolution of disputed factual issues under the deferential substantial evidence standard , and independently review whether the facts demonstrate prosecutorial good faith and due diligence ." (Herrera, supra, 49 Cal.4th at p. 623.) "A witness who is absent from a trial is not 'unavailable' in the constitutional sense unless the prosecution has made a 'good faith effort' to obtain the witness's presence at the trial. The United States Supreme Court has described the good faith requirement this way: 'The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness' intervening death), "good faith" demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. ... The lengths to which the prosecution must go to produce a witness ... is a question of reasonableness. The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness.' " (Herrera, supra, 49 Cal.4th at p. 622.) This good faith obligation is reflected in the language of Evidence Code section 240, subdivision (a)(5), which states that a witness is unavailable when he or she is "'absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process.' The term 'reasonable diligence, often called "due diligence" in case law, "'connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.'"' " (Herrera, supra, 49 Cal.4th at p. 622.) The due diligence requirement imposed by California law is essentially the same as the federal constitutional good faith requirement. (Ibid.) "Considerations relevant to the due diligence inquiry 'include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness's possible location were competently explored.' " (Herrera, supra, 49 Cal.4th at p. 622; People v. Valencia (2008) 43 Cal.4th 268, 292 74 Cal.Rptr.3d 605, 180 P.3d 351.) As long as "'substantial good faith'" efforts are undertaken to locate a witness, the fact that "'additional efforts might have been made or other lines of inquiry pursued ...'" does not indicate lack of diligence because "'the law requires only reasonable efforts, not prescient perfection.' " (People v. Diaz (2002) 95 Cal.App.4th 695, 706 115 Cal. Rptr. 2d 799.)