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Name: People v. Herrera
Case #: S171895
Court: CA Supreme Court
District CalSup
Opinion Date: 07/01/2010

If a witness is out of the country and is immune from the court’s process because he is in a country for which no treaty exists for the production of witnesses for trials in the United States, the prosecution has “fulfilled its obligations of good faith and due diligence” in demonstrating witness unavailability. A witness testified at the preliminary hearing in appellant’s murder case that appellant confessed to the crime. The prosecution could not call the witness for trial because the Department of Homeland Security deported him to El Salvador after he pled to an unrelated charge and was sentenced. The trial court granted the prosecutor’s motion to introduce the witness’s preliminary hearing testimony at trial based on unavailability. The appellate court held this was a violation of the right to confrontation because it found that, by waiting until the day before trial to find the witness, the prosecutor did not act with good faith and due diligence in securing the witness. The Supreme Court reversed. Further efforts to locate the witness would have been futile in light of the fact the witness was immune from the court’s process. There was no treaty between the United States and El Salvador which could have been invoked to return the witness to this country to testify at appellant’s trial. If the state is powerless to obtain the witness’s attendance, the prosecution is not required to show anything else to establish witness unavailability.