(concurring). The prosecution failed to show due diligence in producing the principal res gestae witnesses. The trial court abused its discretion in its finding of due diligence and in allowing the prosecution to use the previous trial testimony of the principal witnesses. The defendant was denied the opportunity to confront and cross-examine the witnesses. I would, therefore, reverse the decisions of the Court of Appeals and *84the trial court and remand the case for a new trial.
i
The defendant, Paul Dye, was charged with a double murder committed in August, 1982, at the headquarters of the Forbidden Wheels Motorcycle Club. Evidence adduced at trial established that four members of the Forbidden Wheels, Bruce Seidel, Stephen Stever, James Dawson, and the defendant, were in the building at the time two women were killed inside the club.
It was established that when the murders occurred, the defendant and Seidel were in the room with the victims while Dawson and Stever were in an upstairs room. During the trial, the defendant and Seidel each accused the other of shooting and killing the victims. Seidel testified that after witnessing the shootings, he went upstairs and informed Stever and Dawson. Stever and Dawson testified that Seidel did tell them that the defendant had shot two people but, because they were not eyewitnesses, they could not verify either version of the shooting itself.
All four testified that they assisted in cleaning up the room where the shooting occurred. Seidel testified that he and the defendant disposed of the bodies by dumping them in a vacant lot. Although it was undisputed that all four had participated in covering up the crime, only the defendant was charged with murder. Seidel, Stever, and Dawson were not charged in exchange for their testimony.
The jury was required to evaluate the credibility of the witnesses on the basis of their demeanor and the factual and logical consistency of their testimony. The jury failed to reach a unanimous verdict. A mistrial was declared. It was later *85learned that the jury voted eleven to one in favor of acquittal.
The prosecution requested a second trial of the defendant. Unlike the first trial, the three principal witnesses were not housed in a secure place at a hidden location. No material witness bonds were requested, nor were addresses required from Stever, Dawson, or Seidel, although it was known that all three of the men planned to leave the state. On May 13, 1983, a new trial date of August 22,1983, was set.
Several weeks later, in June, 1983, the police began sporadic, unsuccessful attempts to locate Seidel. No attempt was made to locate Dawson until July, and it was not until August, approximately three weeks before trial, that attempts were made to serve Stever with a subpoena.
In attempting to locate Seidel, the police contacted his mother in Mason City, Iowa, who said he was working out of town. There is no indication in the record that they asked her to specify where he was. In the case of Dawson, the prosecutor had learned earlier that he might seek to avoid further involvement with the trial. Yet he waited until after he got further confirmation that Dawson was going to avoid the second trial and subsequently found Dawson’s phone disconnected when he contacted the police for assistance in locating Dawson. The attempt to locate Stever was even less diligent. The first attempt was an inquiry of Dawson’s mother. Dawson’s mother could not tell the police where her son was, so it was highly unlikely that she could help the police locate Stever.
The prosecutor waited until seventeen days before the trial to attempt to locate the witnesses using the uniform act to secure the attendance of witnesses from without a state in criminal proceedings, MCL 767.91 et seq.; MSA 28.1023(191) et *86seq.* 1 2The first time that the prosecutor indicated that there were some witnesses that had yet to be served with subpoenas was at a hearing on the defense counsel’s motion to adjourn. The defense counsel was newly engaged, however, and therefore unfamiliar with the importance of the missing *87witnesses. It was not until August 16, 1983, six days before the trial, that the prosecutor sent pictures of the three men to the respective states in which they were being sought. The prosecutor did not inform the defense counsel which witnesses were unavailable until the day the trial was to begin. The prosecution sought to introduce transcripts of their prior testimony to be read into evidence under MCL 768.26; MSA 28.1049 and MRE 804(b)(1).2
A hearing was conducted to determine whether due diligence was exercised in attempts to locate these crucial witnesses for the second trial. The trial court ruled that the prosecution exercised due diligence and permitted the use of the trial transcript from the first trial.
The defendant was found guilty as charged. He appealed in the Court of Appeals, which affirmed on the basis of defense counsel’s failure to seek an adjournment.
ii
The statute under which the prior testimony was admitted into evidence, MCL 768.26; MSA 28.1049, states:
Testimony taken at an examination, preliminary *88hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial, or whenever the witness has, since giving such testimony become insane or otherwise mentally incapacitated to testify.
Use of prior recorded testimony in place of live testimony of endorsed res gestae witnesses is subject to the defendant’s fundamental right to confront witnesses under the Michigan Constitution as well as the Constitution of the United States. Barber v Page, 390 US 719; 88 S Ct 1318; 20 L Ed 2d 255 (1968); People v McIntosh, 389 Mich 82; 204 NW2d 135 (1973). In Barber, the United States Supreme Court held that this confrontation right requires the prosecution to produce such endorsed witnesses and that an exception to this requirement is not available "unless the prosecutorial authorities have made a good-faith effort to obtain [the witness’] presence at trial.” Barber, supra at 725.
Justice Marshall, writing for the majority in Barber at 721, stated:
Many years ago this [United States Supreme] Court stated that "[t]he primary object of the [Confrontation Clause of the Sixth Amendment] . . . was to prevent depositions or ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy *89of belief.” Mattox v United States, 156 US 237, 242-243 [15 S Ct 337; 39 L Ed 409] (1895). More recently, in holding the Sixth Amendment right of confrontation applicable to the States through the Fourteenth Amendment, this Court said, "There are few subjects, perhaps, upon which this [United States Supreme] Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.” Pointer v Texas, 380 US 400, 405 [85 S Ct 1065; 13 L Ed 2d 923] (1965).
Michigan courts have, until now, fully embraced this doctrine and have therefore required that prosecutors exercise "due diligence” in attempts to secure the presence of witnesses before prior testimony is admissible. In People v McIntosh, supra at 86, this Court cited Barber, stating that "the prosecution must show due diligence in their efforts to produce [endorsed res gestae] witnesses.” Indeed, even prior to its recognition that the Sixth Amendment was incorporated into the Fourteenth Amendment and thus applicable to the states, this Court had held that the prosecution was required to exercise due diligence to produce material witnesses at trial. See, e.g., People v Zabijak, 285 Mich 164; 280 NW 149 (1938); People v Vick, 235 Mich 475; 209 NW 584 (1926).
hi
The diligence due in a given case necessarily varies with the circumstances. Law enforcement authorities must not be unduly burdened with a duty to locate witnesses whose testimony would merely relate to preliminary or unimportant matters. At the other extreme, however, are cases *90where eyewitness testimony relating to an ultimate fact such as the identity of the perpetrator of a felony must be tested in the presence of the jury for credibility and consistency in order to satisfy the requirements of due process.
In the instant matter, it is obvious that the first mistrial resulted from the jury’s inability to give credence to the testimony of Seidel, Stever, and Dawson. The inability of the jury at the second trial to view the demeanor of these witnesses therefore greatly reduced the validity and reliability of its evaluation of the witnesses’ credibility. In fact, over the objection of the defense counsel, the individuals reading the prior testimony in the second trial were allowed to embellish the written words with dramatic effects.3 As a result, the *91defendant’s right to a fair trial was greatly hampered, thus violating his right to due process of law.
This due process violation cannot be excused on the basis of any exception to the defendant’s right to confront witnesses. Although the defense counsel apparently conceded the good faith of the prosecutor, it is clear that the efforts of the police and the prosecutor to locate the witnesses fell short of the due diligence requirement recognized in People v McIntosh, supra.
The failure to inquire as to the specific whereabouts of Seidel precludes reliance on contacts with Seidel’s mother as evidence of due diligence. Similarly, the sporadic attempts to locate Dawson and Stever were clearly less than adequate. This would seem to be the "cursory or pretextual investigation” referred to by the opinion for affirmance, post, p 101, n 6, as inadequate evidence of due diligence. The uniform act to secure the attendance of witnesses from without a state in criminal proceedings may not be relied on to establish due diligence. This statute, originally promulgated by *92the National Conference of Commissioners on Uniform State Laws, was designed merely to codify a procedure whereby each state would have a standard for honoring a request by another state for assistance in securing a witness for a criminal trial. There is no indication that this statute was intended to set a standard for due diligence. Such an intent would surely mandate the inclusion of a time frame for use of the statute to ensure that authorities in a state receiving a request would have adequate time to locate the witness sought. In the instant case, the prosecutor waited until seventeen days before trial to invoke the act. It was not until August 16, six days before the trial, that the prosecutor sent pictures of the three men to the respective states in which they were being sought.
Finally, the prosecutor’s delay in informing the defense counsel of the absence of the witnesses resulted in an unfair eleventh-hour surprise. As early as March, 1983, there were indications that the witnesses might be unavailable for a second trial. Surely it was clear by August 5, when the uniform witness act packets were sent, that the witnesses would be difficult to locate. The Court of Appeals affirmance was based in part on defense counsel’s failure to seek an adjournment. However, the newly engaged defense counsel’s unfamiliarity with the case precluded him from recognizing the importance of the missing witnesses. In any event, it may have appeared to be futile to request an adjournment in that the trial judge had refused an earlier request to adjourn so that the new defense counsel could adequately prepare for trial.
IV
Barber v Page and People v McIntosh, supra, *93recognized that a defendant’s Sixth Amendment confrontation right cannot be overcome without a clear showing that good-faith, diligent efforts were made to produce material witnesses. In this case, due diligence has not been shown by the prosecution; therefore, the trial court abused its discretion. I would reverse the decisions of the Court of Appeals and the trial court and remand the case for a new trial.
v
I do not agree with the analysis of the opinion for affirmance and the result in the second issue. I disagree with the application of Jenkins v Anderson, 447 US 231; 100 S Ct 2124; 65 L Ed 2d 86 (1980), and the extension of People v Collier, 426 Mich 23; 393 NW2d 346 (1986). See Collier, pp 40-45. I do not address this disagreement with specificity because of my finding of a lack of due diligence which would reverse the decisions of the Court of Appeals and trial court resulting in a remand for a new trial.
CONCLUSION
I would reverse the decisions of the Court of Appeals and the trial court and remand the case for a new trial.
The relevant sections of the uniform act, MCL 767.91 et seq.; MSA 28.1023(191) et seq., read as follows:
(a) "Witness” includes a person whose testimony is desired in any proceeding or investigation by a grand jury or in a criminal action, prosecution or proceeding. [MCL 767.91(a); MSA 28.1023(191)(a).]
(1) If a person in a state, which by law provides for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence, in this state, is a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of the court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.
(2) If the witness is summoned to attend and testify in this state he shall be tendered the sum of 10 cents for each mile of the ordinary traveled route to and from the court where the prosecution or investigation is being held and $5.00 for each day that he is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state longer than the period stated in the certificate, unless otherwise ordered by the court. If the witness, after coming into this state, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state. [MCL 767.93; MSA 28.1023(193).]
Sections 91 to 95 constitute the uniform act to secure the attendance of witnesses from without a state in criminal proceedings and shall be so interpreted and construed as to effectuate their general purposes to make uniform the law of the states which enact them. [MCL 767.95; MSA 28.1023(195).]
MRE 804(b)(1) states:
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
The following colloquy took place between the defense counsel and the court:
Mr. Morrow: Just one thing I’d like to put on the record. As the witness was testifying, I noticed that there were certain hand motions or whatever and I don’t know, necessarily, if they were appropriate or if they had any prejudicial effect on the jury. Making those — I don’t think he was present at the first trial — so I don’t know if they could actually be deemed accurate. I’d just like to put that on the evidence for possible prejudice.
[The Court] See you at 3 o’clock.
(Whereupon this case was in recess at 12:44 p.m.)
(Whereupon at 4:45 p.m., the jury was excused and the following proceedings held outside the presence of the jury.)
The Court: Per discussion in chambers, I think there is an objection or two, if not more, to what the jury just heard or did not hear, Mr. Morrow?
Mr. Morrow: Thank you, your Honor. In terms — let me just talk generally about the reading of witness of Steve Stevers. It was my impression this was going to be a neutral reading. I’d just have to put on the record that the witness that read the part of Stephen Stevers was into dramatic art. I mean, certainly his facial expressions, his attempts to add inflections when there might have not been any, I just don’t think it was any way neutral, and as a result, I think it was very prejudicial to Mr. Dye. I would ask that the . . .
*91The Court: The record is also clear there was no objection during the reading.
Mr. Morrow: It was my understanding that we were going to add the objections later. I don’t know if I should.
The Court: I think that’s [sic] if that’s a valid objections [sic]. That’s certainly the kind of objection you would clearly bring up while it was going on.
Mr. Morrow: I’d like to ask the Court, then, for the next person that is going to be the reader of Bruce Seidel, that if there’s any way possible that the voice just be heard by the jury, as opposed to facial expressions, because I’m sure that that’s going to have me jumping up, now that I know that that’s the way the Court wishes it. It would have me jumping up all the time.
The Court: No. I would state that Mr. Bernacki read with perhaps more inflection in his voice than did Mr. Hutting, and if counsel had approached the bench we would have informed Mr. Bernacki to simply read it in a natural manner. Counsel did not choose to do so and, thus, the Court was not going to take it upon itself to tell Mr. Bernacki how to read.