California, United States of America
The following excerpt is from People v. Foster, A137621 (Cal. App. 2014):
"When a continuance is sought to secure the attendance of a witness, the defendant must establish 'he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.' [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) Appellant has satisfied each of these requirements.
It is undisputed appellant exercised due diligence to secure the witness's attendance at trial, having subpoenaed her in a timely manner. It has been said that "[o]ur judicial system is grounded on the sanctity of compulsory process, and it operates on the assumption that a subpoenaed witnesswhether a police officer or the President of the United Stateswill either obey an order to appear in court or present his excuses sufficiently in advance of the appearance date . . . ." (Gaines v. Municipal Court (1980) 101 Cal.App.3d 556, 560.) In this case, there is not even a hint of defense complicity or neglect regarding this witness' failure to appear at trial.
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