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Name: Hardy v. Cross
Case #: Nov-74
Court: US Supreme Court
District USSup
Opinion Date: 12/12/2011
Subsequent History: 132 S.Ct. 490; 181 L.Ed.2d 468

Federal court erred when it overturned the state court’s finding regarding witness unavailability. After a mistrial, Cross was retried for kidnaping and sexual assault. At retrial the prosecution informed the court the victim could not be located and explained what efforts were made to secure her presence at trial. The trial court found the witness unavailable and admitted her testimony from the first trial. Cross was convicted of several counts of sexual assault. The Illinois Court of Appeal upheld the state court’s finding of unavailability. Cross filed a federal writ petition which was denied by the District Court. The Seventh Circuit reversed, holding that the state court was unreasonable in finding the prosecutor had made sufficient efforts to secure the complainant’s presence at trial. The U.S. Supreme Court reversed. The Illinois state court finding that the prosecutor made a good-faith search for the witness was not an unreasonable application of U.S. Supreme Court Confrontation Clause precedent. “[T]he Sixth Amendment does not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising.” The deferential standard provided by AEDPA (28 U. S. § 2254(d)) does not permit a federal court to overturn a state court’s finding of unavailability simply because the federal court identifies additional steps which could have been taken to locate the witness.