It had no idea whether Dr. Buck would appear for trial. Here, the prosecution's failure to use the Act or to take other reasonable measures precludes a finding of due diligence. We do not hold that failure to use the Uniform Act will automatically result in a finding of lack of due diligence in every instance. Rather, the court must look to the circumstances of each case to determine whether use of the Act would have been the reasonable means to secure the witness's attendance. Because due diligence was not used in attempting to produce Dr. Buck, the trial court must assess, at a postremand hearing, whether defendant was prejudiced by his absence.
Defendant is presumed prejudiced until the contrary is established.
Cummings , supra at 584. The prosecution shall have thirty days after release of this opinion to seek relief in a postremand hearing to determine whether defendant was prejudiced by the nonproduction of the witness. The trial court shall conduct the evidentiary hearing within fifty-six days after the prosecution seeks relief. If the prosecution fails to seek a postremand hearing, the conviction shall be deemed vacated and a new trial ordered. We do not retain jurisdiction.