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Name: People v. Kons
Case #: C039657
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 05/05/2003
Subsequent History: None

The attempted murder victim in this case made two statements to police officers about who shot him. The first identified “Mad Ball” as the shooter; the second was a statement picking appellant out of a photo lineup. Only the second statement was introduced at appellant’s trial, pursuant to Evidence Code section 1370. Here, the appellate court reversed the conviction, holding that admission of the second statement violated appellant’s right to confront witnesses against him. The statement did not contain the requisite particularized guarantees of trustworthiness to overcome presumed unreliability. It was not a spontaneous declaration; it was made at least a day after the shooting and after the victim had talked to friends. The absence of evidence of any motive to lie is not sufficient. Cross examination was critical to determine the victim’s credibility.