Cromer

The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution's witnesses. (U.S. Const., 6th Amend.; Cal. Const, art. I, § 15.) That right is not absolute, however. An exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination. Under federal constitutional law, such testimony is admissible if the prosecution shows it made "a good-faith effort" to obtain the presence of the witness at trial. ( Barber v. Page (1968) 390 U.S. 719, 725 , 88 S.Ct. 1318 , 20 L.Ed.2d 255 ; accord, Ohio v. Roberts (1980) 448 U.S. 56, 74 , 100 S.Ct. 2531, 2543 , 65 L.Ed.2d 597 .) California allows introduction of the witness's prior recorded testimony if the prosecution has used "reasonable diligence" (often referred to as due diligence) in its unsuccessful efforts to locate the missing witness. (Evid.Code, § 240, subd. (a)(5); all further statutory references are to the Evidence Code unless otherwise indicated.)

The issue here is this: What standard of review must an appellate court apply when evaluating a…