What is the burden of proving due diligence in the prosecution's search for a witness?

MultiRegion, United States of America

The following excerpt is from Allen v. CDCR, No. 2:20-cv-00997 KJM GGH P (E.D. Cal. 2021):

"Evidence Code section 1291, subdivision(a)(2), provides that former testimony is not rendered inadmissible as hearsay if the declarant is 'unavailable as a witness,' and '[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.' In turn, Evidence Code section 240, subdivision(a)(5), states a declarant is 'unavailable as a witness' if the declarant is '[a]bsent 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." (People v. Wilson, supra, 36 Cal.4th at p. 341.)

The courts have not divined a mechanical definition for reasonable or due diligence. It does connote " 'preserving application, untiring efforts in good earnest, efforts of a substantial character.' " (People v. Cromer (2001) 24 Cal.4th 889, 904.) "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.' " (People v. Herrera (2010) 49 Cal.4th 613, 622.) The prosecution bears the burden of proving due diligence in attempting to secure a witness's attendance at trial. (People v. Roldan (2012) 205 Cal.App.4th 969, 979.)

Other Questions


Does the prosecution have a burden of proving its case against the defense in the context of the prosecution's argument that the defense had framed the prosecution on behalf of the defence? (MultiRegion, United States of America)
What is the burden of proof for a plaintiff to prove that a police officer violated their right to search and search in search and seizure? (MultiRegion, United States of America)
What is the test for determining whether a search conducted during a search of a vehicle by a search warrant has exceeded the permissible scope of a search? (MultiRegion, United States of America)
What is the test for a search warrant to search a suitcase, and what is the scope of the search? (MultiRegion, United States of America)
What is the initial burden of proving that Defendant substantially burdened the exercise of his religious beliefs? (MultiRegion, United States of America)
Does the failure of a prosecutor to make at least a so-called eight agency search 1 for possible electronic surveillance of a witness be a result of uneasiness about what the search might uncover? (MultiRegion, United States of America)
What is the test for establishing that a search conducted during search procedures during search and seizure was an intervening and superseding cause of criminal conviction? (MultiRegion, United States of America)
When a warrant is issued for a search in the night is silent on the issue of night searches, can the issuing officer be persuaded to authorize a nighttime search? (MultiRegion, United States of America)
What is the test for qualified immunity in the context of a search of a home during which a police search resulted in a search warrant being issued for a drug dealer's home? (MultiRegion, United States of America)
What is the burden of proving that a search warrant was issued on less than probable cause? (MultiRegion, United States of America)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.