CALIFORNIA EVIDENCE: CIVIL AND CRIMINAL
...Hearsay Except. Requiring Unavail
......Unavailability Defined: Due Diligence
.........Due Diligence Shown
 13 Cards On This Topic:
  • Proper to admit unavailable W's prelim. hearing testimony where the DA exercised due diligence in trying to find her after her release on another matter, having reasonably believed she would appear given her history of cooperation.
  • DA used reasonable diligence to secure presence of out-of-state sex assault V at trial-DA not required to use PC 1334 custody-and-delivery provision where it would not be a reasonable means of securing V's presence.
  • No error in finding DA exercised due diligence in seeking alcoholic transient witness, in finding him unavailable and in admitting his prior testimony at second trial.
  • Trial court properly admitted at penalty phase the prelim. hrg testimony of unavailable victim of prior similar robbery for which D charged; due diligence established and testimony reliable.
  • Attempts to find W and serve body attachment warrant beginning over a year before testimony needed, and many stops by officers at W's home, establish due diligence and unavailability.
  • Proper to allow audio/video tape of W's preliminary hearing testimony after due diligence finding based on exhaustive search for W by DA investigator and case agent.
  • Trial court's refusal to permit unavailable W's highly relevant depo testimony on key factual dispute was prejudicial, warranting new trial.
  • DA used reasonable diligence in attempting to obtain presence of witness who had applied for asylum in Canada, and trial ct. did not err in finding him unavailable and admitting his prelim. hearing testimony.
  • Reasonableness of efforts to procure attendance of a witness depends upon analysis of practical human experience and contemporary community standards.
  • Prelim testimony properly used at trial where DA made reasonable efforts to locate W; DA had no duty to keep track of W as he was not known flight risk.
  • Mail subpoena and on-call procedure sufficient to establish due diligence for unavailability finding and admission of prior testimony.
  • Example of police investigative efforts sufficient to establish due diligence.
  • D's attempts after trial started to subpoena co-D who had settled held diligent. D had no knowledge co-D would not be present until trial started.


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