Ohio v. Roberts

Mr. Justice BLACKMUN delivered the opinion of the Court.

This case presents issues concerning the constitutional propriety of the introduction in evidence of the preliminary hearing testimony of a witness not produced at the defendant's subsequent state criminal trial.

I

Herschel Roberts . . . was charged with forgery of a check in the name of Bernard Isaacs, and with possession of stolen credit cards belonging to Isaacs and his wife Amy.

A preliminary hearing was held. The prosecution called several witnesses, including Mr. Isaacs. Respondent's appointed counsel had seen the Isaacs' daughter, Anita, in the courthouse hallway, and called her as the defense's only witness. Anita Isaacs testified that she knew respondent, and that she had permitted him to use her apartment for several days while she was away. Defense counsel questioned Anita at some length and attempted to elicit from her an admission that she had given respondent checks and the credit cards without informing him that she did not have permission to use them. Anita, however, denied this. Respondent's attorney did not ask to have the witness declared hostile and did not request permission to place her on cross-examination. The prosecutor did not question Anita.

A county grand jury subsequently indicted respondent for forgery, for receiving stolen property. . .

Between November 1975 and March 1976, five subpoenas for four different trial dates were issued to Anita at her parents' Ohio residence. . . She was not at the residence when these were executed. She did not telephone and she did not appear at trial.

[At trial] [r]espondent took the stand and testified that Anita Isaacs had given him her parents' checkbook and credit cards with the understanding that he could use them. Relying on Ohio Rev.Code Ann. § 2945.49 (1975), which permits the use of preliminary examination testimony of a witness who “cannot for any reason be produced at the trial,” the State, on rebuttal, offered the transcript of Anita's testimony.

Asserting a violation of the Confrontation Clause and indeed, the unconstitutionality thereunder of § 2945.49, the defense objected to the use of the transcript. The trial court conducted a voir dire hearing as to its admissibility. Tr. 194-199. Amy Isaacs, the sole witness at voir dire, was questioned by both the prosecutor and defense counsel concerning her daughter's whereabouts. Anita, according to her mother, left home for Tucson, Ariz., soon after the preliminary hearing. About a year before the trial, a San Francisco social worker was in communication with the Isaacs about a welfare application Anita had filed there. Through the social worker, the Isaacs reached their daughter once by telephone. Since then, however, Anita had called her parents only one other time and had not been in touch with her two sisters. When Anita called, some seven or eight months before trial, she told her parents that she “was traveling” outside Ohio, but did not reveal the place from which she called. Mrs. Isaacs stated that she knew of no way to reach Anita in case of an emergency. Nor did she “know of anybody who knows where she is.” The trial court admitted the transcript into evidence. Respondent was convicted on all counts.

The Supreme Court of Ohio. . . held that the transcript was inadmissible. Reasoning that normally there is little incentive to cross-examine a witness at a preliminary hearing, where the “ultimate issue” is only probable cause, and citing the dissenting opinion in California v. Green, 399 U.S. 149, (1970), the court held that the mere opportunity to cross-examine at a preliminary hearing did not afford constitutional confrontation for purposes of trial. The court distinguished Green, where this Court had ruled admissible the preliminary hearing testimony of a declarant who was present at trial, but claimed forgetfulness. The Ohio court perceived a “dictum” in Green that suggested that the mere opportunity to cross-examine renders preliminary hearing testimony admissible. . .But the court concluded that Green “goes no further than to suggest that cross-examination actually conducted at preliminary hearing may afford adequate confrontation for purposes of a later trial.” 55 Ohio St.2d, at 199, 378 N.E.2d, at 497 (emphasis in original). Since Anita had not been cross-examined at the preliminary hearing and was absent at trial, the introduction of the transcript of her testimony was held to have violated respondent's confrontation right. The three dissenting justices would have ruled that
“ ‘the test is the opportunity for full and complete cross-examination rather than the use which is made of that opportunity.’ ”

We granted certiorari to consider these important issues under the Confrontation Clause. 441 U.S. 904, 99 S.Ct. 1990, 60 L.Ed.2d 372 (1979).

II

The Court here is called upon to consider once again the relationship between the Confrontation Clause and the hearsay rule with its many exceptions. The basic rule against hearsay, of course, is riddled with exceptions developed over three centuries. These exceptions vary among jurisdictions as to number, nature, and detail. But every set of exceptions seems to fit an apt description offered more than 40 years ago: “an old-fashioned crazy quilt made of patches cut from a group of paintings by cubists, futurists and surrealists.”

The Sixth Amendment's Confrontation Clause, made applicable to the States through the Fourteenth Amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” If one were to read this language literally, it would require, on objection, the exclusion of any statement made by a declarant not present at trial. But, if thus applied, the Clause would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme.

The historical evidence leaves little doubt, however, that the Clause was intended to exclude some hearsay. . .

The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. [Footnote 7]

=====FOOTNOTE 7=====

A demonstration of unavailability, however, is not always required. In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), for example, the Court found the utility of trial confrontation so remote that it did not require the prosecution to produce a seemingly available witness.

=====Footnote End=====

The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that “there is no material departure from the reason of the general rule.” . . . The principle recently was formulated in Mancusi v. Stubbs :

“The focus of the Court's concern has been to insure that there ‘are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant,’ Dutton v. Evans, supra, at 89, 91 S.Ct., at 220 and to ‘afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement,’ California v. Green, supra, 399 U.S., at 161, 90 S.Ct., at 1936. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these ‘indicia of reliability.’ ”

The Court has applied this “indicia of reliability” requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the “substance of the constitutional protection.” This reflects the truism that “hearsay rules and the Confrontation Clause are generally designed to protect similar values,” California v. Green, and “stem from the same roots,” . . . It also responds to the need for certainty in the workaday world of conducting criminal trials.
In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

III

We turn first to that aspect of confrontation analysis deemed dispositive by the Supreme Court of Ohio, and answered by it in the negative-whether Anita Isaacs' prior testimony at the preliminary hearing bore sufficient “indicia of reliability.” Resolution of this issue requires a careful comparison of this case to California v. Green, supra.

A

In Green, at the preliminary hearing, a youth named Porter identified Green as a drug supplier. When called to the stand at Green's trial, however, Porter professed a lapse of memory. Frustrated in its attempt to adduce live testimony, the prosecution offered Porter's prior statements. The trial judge ruled the evidence admissible, and substantial portions of the preliminary hearing transcript were read to the jury. This Court found no error. Citing the established rule that prior trial testimony is admissible upon retrial if the declarant becomes unavailable . . .recent dicta suggesting the admissibility of preliminary hearing testimony under proper circumstances, the Court rejected Green's Confrontation Clause attack. It reasoned:

“Porter's statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial. Porter was under oath; respondent was represented by counsel-the same counsel in fact who later represented him at the trial; respondent had every opportunity to cross-examine Porter as to his statement; and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings.”

These factors, the Court concluded, provided all that the Sixth Amendment demands: “substantial compliance with the purposes behind the confrontation requirement.”

This passage and others in the Green opinion suggest that the opportunity to cross-examine at the preliminary hearing-even absent actual cross-examination-satisfies the Confrontation Clause. Yet the record showed, and the Court recognized, that defense counsel in fact had cross-examined Porter at the earlier proceeding.

We need not decide whether the Supreme Court of Ohio correctly dismissed statements in Green suggesting that the mere opportunity to cross-examine rendered the prior testimony admissible. . . Nor need we decide whether de minimis questioning is sufficient, for defense counsel in this case tested Anita's testimony with the equivalent of significant cross-examination.

B

Counsel's questioning clearly partook of cross-examination as a matter of form. His presentation was replete with leading questions, the principal tool and hallmark of cross-examination. In addition, counsel's questioning comported with the principal purpose of cross-examination: to challenge “whether the declarant was sincerely telling what he believed to be the truth, whether the declarant accurately perceived and remembered the matter he related, and whether the declarant's intended meaning is adequately conveyed by the language he employed.” Anita's unwillingness to shift the blame away from respondent became discernible early in her testimony. Yet counsel continued to explore the underlying events in detail. He attempted, for example, to establish that Anita and respondent were sharing an apartment, an assertion that was critical to respondent's defense at trial and that might have suggested ulterior personal reasons for unfairly casting blame on respondent. At another point, he directly challenged Anita's veracity by seeking to have her admit that she had given the credit cards to respondent to obtain a television. When Anita denied this, defense counsel elicited the fact that the only television she owned was a “Twenty Dollar . . . old model.” . . .

Respondent argues that, because defense counsel never asked the court to declare Anita hostile, his questioning necessarily occurred on direct examination. But however state law might formally characterize the questioning of Anita, it afforded “substantial compliance with the purposes behind the confrontation requirement,” no less so than classic cross-examination. Although Ohio law may have authorized objection by the prosecutor or intervention by the court, this did not happen. As in Green, respondent's counsel was not “significantly limited in any way in the scope or nature of his cross-examination.”

We are also unpersuaded that Green is distinguishable on the ground that Anita Isaacs-unlike the declarant Porter in Green -was not personally available for questioning at trial. This argument ignores the language and logic of Green :

“Porter's statement would, we think, have been admissible at trial even in Porter's absence if Porter had been actually unavailable . . . . That being the case, we do not think a different result should follow where the witness is actually produced.”

Nor does it matter that, unlike Green, respondent had a different lawyer at trial from the one at the preliminary hearing. Although one might strain one's reading of Green to assign this factor some significance, respondent advances no reason of substance supporting the distinction. Indeed, if we were to accept this suggestion, Green would carry the seeds of its own demise; under a “same attorney” rule, a defendant could nullify the effect of Green by obtaining new counsel after the preliminary hearing was concluded.

Finally, we reject respondent's attempt to fall back on general principles of confrontation, and his argument that this case falls among those in which the Court must undertake a particularized search for “indicia of reliability.” Under this theory, the factors previously cited-absence of face-to-face contact at trial, presence of a new attorney, and the lack of classic cross-examination-combine with considerations uniquely tied to Anita to mandate exclusion of her statements. Anita, respondent says, had every reason to lie to avoid prosecution or parental reprobation. Her unknown whereabouts is explicable as an effort to avoid punishment, perjury, or self-incrimination. Given these facts, her prior testimony falls on the unreliable side, and should have been excluded.

In making this argument, respondent in effect asks us to disassociate preliminary hearing testimony previously subjected to cross-examination from previously cross-examined prior-trial testimony, which the Court has deemed generally immune from subsequent confrontation attack. Precedent requires us to decline this invitation. In Green the Court found guarantees of trustworthiness in the accouterments of the preliminary hearing itself; there was no mention of the inherent reliability or unreliability of Porter and his story.

In sum, we perceive no reason to resolve the reliability issue differently here than the Court did in Green. “Since there was an adequate opportunity to cross-examine [the witness], and counsel . . . availed himself of that opportunity, the transcript . . . bore sufficient ‘indicia of reliability’ and afforded ‘ “the trier of fact a satisfactory basis for evaluating the truth of the prior statement.” ’ ” [Footnote 12]


=====FOOTNOTE 12=====

We need not consider whether defense counsel's questioning at the preliminary hearing surmounts some inevitably nebulous threshold of “effectiveness.” In Mancusi, to be sure, the Court explored to some extent the adequacy of counsel's cross-examination at the earlier proceeding. See 408 U.S., at 214-215, 92 S.Ct., at 2313-2314. That discussion, however, must be read in light of the fact that the defendant's representation at the earlier proceeding, provided by counsel who had been appointed only four days prior thereto, already had been held to be ineffective. See id., at 209, 92 S.Ct., at 2311. Under those unusual circumstances, it was necessary to explore the character of the actual cross-examination to ensure that an adequate opportunity for full cross-examination had been afforded to the defendant. Cf. Pointer v. Texas, 380 U.S., at 407, 85 S.Ct., at 1069. We hold that in all but such extraordinary cases, no inquiry into “effectiveness” is required. A holding that every case involving prior testimony requires such an inquiry would frustrate the principal objective of generally validating the prior-testimony exception in the first place-increasing certainty and consistency in the application of the Confrontation Clause.The statement in Mancusi quoted in the text indicates the propriety of this approach. To the same effect is Mattox v. United States, 156 U.S., at 244, 15 S.Ct., at 340. (“The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross-examination”).

=====Footnote End=====

. . . We conclude that the prosecution carried its burden of demonstrating that Anita was constitutionally unavailable for purposes of respondent's trial.

The judgment of the Supreme Court of Ohio is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.