Facts
- Hershel Roberts was prosecuted in Ohio for forgery of a check and possession of stolen credit cards belonging to Bernard Isaacs and his wife.
- At a preliminary hearing, the defense called the Isaacs’ daughter, Anita Isaacs, who testified under oath about Roberts’ use of her apartment and denied giving him the checks and credit cards with permission to use them.
- Defense counsel did not request that Anita be treated as hostile and did not conduct formal cross-examination, but questioned her extensively in an effort to support the defense theory.
- At trial, Roberts testified that Anita had given him her parents’ checkbook and credit cards with an understanding that he could use them.
- Anita did not appear at trial despite the State issuing multiple subpoenas to her parents’ residence.
- In a voir dire, Anita’s mother testified that Anita left home after the preliminary hearing, had later contact through a California social worker about a welfare application, and had recently called indicating she was traveling outside Ohio without providing a location.
- The trial court admitted the preliminary-hearing transcript under an Ohio statute permitting use of such testimony when a witness cannot be produced, and Roberts was convicted.
- Ohio appellate courts reversed, concluding that admitting the transcript violated the Sixth Amendment Confrontation Clause.
Issues
- Whether the Confrontation Clause permits admission of a witness’s preliminary-hearing testimony when the witness is unavailable at trial and was not subjected to classic cross-examination.
- What showing the prosecution must make to establish the witness’s unavailability for Confrontation Clause purposes.
- What reliability showing is required before admitting hearsay from an unavailable declarant against a criminal defendant.
Decision
- The Supreme Court reversed the Ohio Supreme Court.
- The Court held that when a hearsay declarant is absent from trial, the Confrontation Clause generally requires a showing of unavailability and permits admission only if the statement has adequate indicia of reliability.
- The Court found Anita Isaacs unavailable because the State made a good-faith effort to secure her presence and further efforts would likely have been futile on this record.
- The Court found sufficient reliability because the testimony was given under oath in a judicial proceeding, with the defendant and counsel present, and the defense had an opportunity to question the witness at the preliminary hearing.
Legal Principles
- When a declarant is not present at trial, the Confrontation Clause ordinarily requires the prosecution to demonstrate the declarant’s unavailability.
- Even if the declarant is unavailable, the out-of-court statement is admissible only if it bears adequate indicia of reliability.
- Reliability may be inferred when the evidence falls within a firmly rooted hearsay exception; otherwise, reliability must be shown by particularized guarantees of trustworthiness.
- Unavailability turns on whether the prosecution made a good-faith effort to obtain the witness’s presence, measured by the facts of the case; the Constitution does not require futile acts.
- The Confrontation Clause secures an opportunity for effective cross-examination; it does not guarantee cross-examination as effective as the defense might prefer.
Conclusion
The Court held that admitting an unavailable witness’s preliminary-hearing testimony did not violate the Confrontation Clause where the State made a good-faith effort to produce the witness and the prior testimony was sufficiently reliable, including because the defense had an opportunity to question the witness under oath in a prior judicial proceeding.