What is the burden of good faith and due diligence applied by the prosecution in a sexual assault case?
California, United States of America
The following excerpt is from People v. Cunningham, D065699 (Cal. App. 2015):
We review the resolution of disputed facts under the substantial evidence standard, and independently review whether the facts demonstrate prosecutorial good faith and due diligence; no deference is given to the trial court's determination. (Herrera, supra, 49 Cal.4th at p. 623; People v. Cromer, supra, 24 Cal.4th at pp. 900-901.)
In People v. Lopez (1998) 64 Cal.App.4th 1122, the court found the People had exercised due diligence in trying to secure a witness's presence at trial despite not having communicated with the witness more than one month before trial. (Id. at p. 1128.) The witness, who had been beaten by her boyfriend of five years, was declared unavailable after the prosecution established they met their burden of due diligence. (Id. at p. 1125.) The court reasoned the prosecution had subpoenaed her in advance of trial, she testified at the preliminary hearing, and the prosecution had "no reason to believe she would not
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