When a witness at the preliminary hearing is unable to testify at trial, can the former witness be used at trial?

California, United States of America

The following excerpt is from People v. Sandoval, 105 Cal.Rptr.2d 504, 87 Cal.App.4th 1425 (Cal. App. 2001):

When a witness who testified at the preliminary hearing is unavailable to testify at trial, it is statutorily and constitutionally acceptable for the former testimony to be used at trial. (See Evid. Code, 1291; Ohio v. Roberts (1980) 448 U.S. 56 [65 L.Ed.2d 597].) This case presents the question whether the prosecution, to establish the unavailability of a crucial witness who is a Mexican citizen currently residing in Mexico, must show it made a reasonable, good-faith effort to obtain the attendance of the witness at trial. We conclude the defendants' right of confrontation requires such a showing. Since no such showing was made here, we reverse the defendants' convictions for murder and related crimes.

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