Cogswell

A witness’s preliminary hearing testimony is admissible at trial if the witness is “unavailable” despite the exercise of “reasonable diligence” by the party seeking the witness’s attendance. (Evid. Code, § 1291.) At issue is whether, to show “reasonable diligence” in obtaining the presence at trial of a sexual assault victim living outside California, the prosecution in this case had to ask a court to order the victim taken into custody and transported to California to testify at defendant’s trial.

On a visit to California, a Colorado woman was sexually attacked. At the preliminary hearing, she testified against defendant Henry Ivan Cogswell, her attacker, but thereafter she refused to return to California to testify at his trial. The prosecution then sought to compel her attendance at trial through a law that has been adopted in all 50 states and is known as the Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Cases. (Uniform Act; Pen. Code, § 1334 et seq.) Under the Uniform Act, as adopted in California, a party in a criminal case can ask a court in the state where an out-of-state material witness is located to subpoena the witness…