California, United States of America
The following excerpt is from Cordova v. Superior Court, 148 Cal.App.3d 177, 195 Cal.Rptr. 758 (Cal. App. 1983):
2 Mejia held that the material witness had been unavailable through state action even though the act of deportation was accomplished by the federal authorities (People v. Mejia, supra, 57 Cal.App.3d at p. 582, 129 Cal.Rptr. 192.). That holding is not challenged here.
3 People v. Newsome, supra, 136 Cal.App.3d 992, 186 Cal.Rptr. 676, relied upon by real party in interest, is inapposite. There, a semen sample in a rape prosecution was preserved by the prosecutor for about six months and then allowed to deteriorate. The defense had been timely notified of the existence and availability of the specimen for testing. The defendant took no action to conduct tests. The court held that the unavailability of the sample due to passage of time could not be attributed to the prosecution. There, the specimen in fact was available to the defendant for testing, and the unavailability was due to the passage of time, not to an affirmative act of destruction by the prosecution.