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Name: People v. Cromer
Case #: S076444
Court: CA Supreme Court
Opinion Date: 01/22/2001
Subsequent History: None

Where prior recorded testimony is admissible, its use does not violate the confrontation clause of the federal and state constitutions if the witness is unavailable and the prosecution has shown that it made a “good-faith effort” to obtain the presence of the witness at trial. Where the trial court has made a finding of due diligence, a reviewing court must apply the independent de novo standard of review test, and not the more deferential abuse of discretion test. Here, the Court of Appeal had applied the independent review test, and reversed the defendant’s conviction. It found the prosecution had failed to use due diligence to locate the victim, whose testimony constituted the sole evidence against the defendant on one count. The California Supreme Court agreed, finding that the undisputed facts did not demonstrate the prosecution exercised reasonable diligence to secure the victim’s attendance at trial. The prosecution lost track of the victim in June of 1997, and did not attempt to locate her until December of 1997. The trial had been set for January 12, 1998. Even after receiving promising information as to her whereabouts, the prosecution waited two days to check out the information, and did not follow up with the victim’s mother, who would have been available the day following the prosecution’s attempt to locate the victim. This holding reverses the following cases, which held that the abuse of discretion standard of review applies to mixed questions of law and fact: People v. Lepe (1997) 57 Cal.App.4th 977, 986-987; People v. Walton (1996) 42 Cal.App.4th 1004, 1010; People v. Saucedo (1995) 33 Cal.App.4th 1230, 1236; People v. Guiterrez (1991) 232 Cal.App.3d 1624, 1641; People v. Robinson (1991) 226 Cal.App.3d 1581, 1585; People v. Wright (1990) 222 Cal.App.3d 1002, 1006; People v. Turner (1990) 219 Cal.App.3d 1207, 1214; People v. McElroy (1989) 208 Cal.App.3d 1415, 1425-1426). The opinion implicitly approves People v. Lopez (1998) 64 Cal.App.4th 1122, 1127 and People v. Watson (1989) 213 Cal.App.3d 446, 452, in which the independent standard of review was adopted.