Actual evidence means Actual evidence

Heather Cessna won in State v. Houston, Appeal No. 93,771 (Kan. App. March 31, 2006)(unpublished), overturning a second-degree intentional murder conviction from Wyandotte County. The main issue was the admission of preliminary hearing testimony of a state's witness. The prosecutor had stated that the witness had moved to Utah, had run away, and could not be located--as a result the state asked that she be declared unavailable and admitting her preliminary hearing testimony. The COA followed its precedent (from another of Heather's cases, by the way) that "Before a witness may be declared unavailable, the State must present actual evidence of its efforts demonstrating the exercise of due diligence and good faith to produce the witness at trial." State v. Larraco, 32 Kan. App. 2d 996, 93 P.3d 725 (2004). Because the state did not present any actual evidence--just argument, the COA held the preliminary hearing testimony improperly admitted and reversed.

[Update: the state filed a really bad motion for rehearing, which was quickly denied; the state did not file a petition for review and the mandate in this case issued on May 22, 2006.]