Use of affidavit at preliminary examination: When permitted; notice by district attorney; circumstances under which district attorney must produce person who signed affidavit; continuances.
1. If a witness resides outside this State or more than 100 miles from the place of a preliminary examination, his affidavit may be used at the preliminary examination if it is necessary for the district attorney to establish as an element of any offense that:
(a) The witness was the owner, possessor or occupant of real or personal property; and
(b) The defendant did not have the permission of the witness to enter, occupy, possess or control the real or personal property of the witness.
2. If a financial institution does not maintain any principal or branch office within this State or if a financial institution that maintains a principal or branch office within this State does not maintain any such office within 100 miles of the place of a preliminary examination, the affidavit of a custodian of the records of the financial institution or the affidavit of any other qualified person of the financial institution may be used at the preliminary examination if it is necessary for the district attorney to establish as an element of any offense that:
(a) When a check or draft naming the financial institution as drawee was drawn or passed, the account or purported account upon which the check or draft was drawn did not exist, was closed or held insufficient money, property or credit to pay the check or draft in full upon its presentation; or
(b) When a check or draft naming the financial institution as drawee was presented for payment to the financial institution, the account or purported account upon which the check or draft was drawn did not exist, was closed or held insufficient money, property or credit to pay the check or draft in full.
3. The district attorney shall provide either written or oral notice to the defendant, not less than 10 days before the scheduled preliminary examination, that he intends to use an affidavit described in this section at the preliminary examination.
4. If, at or before the time of the preliminary examination, the defendant establishes that:
(a) There is a substantial and bona fide dispute as to the facts in an affidavit described in this section; and
(b) It is in the best interests of justice that the person who signed the affidavit be cross-examined,
Ê the magistrate may order the district attorney to produce the person who signed the affidavit and may continue the examination for any time it deems reasonably necessary in order to receive such testimony.
Last modified: February 25, 2006