People v. Foy: 1st District holds that the 6th Amendment’s confrontation clause violated

On March 1, 2016, the first district court of appeal held in People v. Foy that the 6th Amendment’s confrontation clause was violated when a videotaped conditional examination was admitted at trial without a sufficient showing that the witness was available.  The conditional examination testimony was admitted in a first trial without objection, as the witness was subject to cross-examination at the conditional examination.   When the prosecution attempted to admit it in a second trial, after the first one hung, the defense objected, and the issue became whether the government had exercised due diligence in attempting to procure her attendance for the second trial.  The government found her, she stated she couldn’t make it due to work and school obligations (shocking), but they did not utilize the existing procedures to subpoena an out of state witness.  The court of appeal held that the government had therefore not carried its burden, and therefore the witness was not unavailable and her testimony should not have been admitted.

The full text of the decision can be read here: http://law.justia.com/cases/california/court-of-appeal/2016/a141073.html