400
Kennedy, J., dissenting
basic assumption—that the purposes of a particular state procedure can be served by use of a rather different one— ignores the realities of trial. The Court here sweeps aside as unnecessary a rule that would have produced the very predicate the trial court needed to grant the motion: an assurance that the defense witnesses were still prepared to offer material testimony.
The majority contends that Lee compensated for any inadequacies in his motion, even if through inadvertence, by various remarks and observations made during earlier parts of the trial. To reach this conclusion, the Court must construe counsel's statements with a pronounced liberality. Even if we could assume, however, that Lee and his lawyer provided all the required information at some point, we could not conclude that "th[e] purpose of the . . . rule" was "substantially served," Henry v. Mississippi, 379 U. S., at 448, or, in the terms used by today's majority, that "[t]he Rule's essential requirements . . . were substantially met," ante, at 385. The most critical information the Rule requires— "What particular facts the affiant believes the witness will prove"—was revealed not at the time of the motion, but at earlier stages: voir dire, opening statements, and perhaps, the majority speculates, the charge conference. Ante, at 383-384. To say the essential requirements of Rule 24.10 were met, then, is to assume the requirement that representations be made at the time of the motion is not central to the Rule or its objectives.
This assumption ignores the State's interest in placing all relevant information before the trial court when the motion is made, rather than asking the judge to rely upon his or her memory of earlier statements. Cf. Ungar v. Sarafite, 376 U. S. 575, 589 (1964) (test for determining whether denial of continuance violated due process considers "particularly . . . the reasons presented to the trial judge at the time the request is denied"). The assumption looks past the State's
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