Petitioner and one Woods were jointly charged with armed
robbery. During the preliminary hearing, Woods waived his privilege
against self-incrimination and testified, incriminating petitioner.
Petitioner's counsel did not cross-examine Woods. When petitioner
was tried in Oklahoma seven months later, Woods was in a federal
prison in Texas. The State of Oklahoma made no effort to obtain
Woods' presence at trial, but introduced, over petitioner's
objection on the ground of deprivation of his right to be
confronted with the witnesses against him, the transcript of Woods'
testimony at the preliminary hearing on the basis that he was out
of the State, and thus unavailable to testify. Petitioner was
convicted. He sought federal habeas corpus, claiming deprivation of
his right of confrontation, but his contention was rejected by the
District Court, and the Court of Appeals affirmed.
1. While there is a traditional exception to the confrontation
requirement where a witness is unavailable and has given testimony
at previous judicial proceedings against the same defendant which
was subject to cross-examination by that defendant, the witness is
not "unavailable" for the purposes of that exception unless the
prosecutorial authorities have made a good faith effort to obtain
his presence at trial. Pp.
390 U. S. 722
2. Petitioner's failure to cross-examine at the preliminary
hearing did not constitute a waiver of the right of confrontation
at the subsequent trial, and even if petitioner had cross-examined
the witness at the hearing, he would not have waived his right of
confrontation, since it is basically a trial right, and includes
both the opportunity to cross-examine and the occasion for the jury
to weigh the demeanor of the witness. P. 390 U. S.
381 F.2d 479, reversed and remanded.
Page 390 U. S. 720
MR. JUSTICE MARSHALL delivered the opinion of the Court.
The question presented is whether petitioner was deprived of his
Sixth and Fourteenth Amendment right to be confronted with the
witnesses against him at his trial in Oklahoma for armed robbery,
at which the principal evidence against him consisted of the
reading of a transcript of the preliminary hearing testimony of a
witness who, at the time of trial, was incarcerated in a federal
prison in Texas.
Petitioner and one Woods were jointly charged with the robbery,
and at the preliminary hearing were represented by the same
retained counsel, a Mr. Parks. During the course of the hearing,
Woods agreed to waive his privilege against self-incrimination.
Parks then withdrew as Woods' attorney, but continued to represent
petitioner. Thereupon Woods proceeded to give testimony that
incriminated petitioner. Parks did not cross-examine Woods,
although an attorney for another codefendant did.
By the time petitioner was brought to trial some seven months
later, Woods was incarcerated in a federal penitentiary in
Texarkana, Texas, about 225 miles from the trial court in Oklahoma.
The State proposed to introduce against petitioner the transcript
of Woods' testimony at the preliminary hearing on the ground that
Woods was unavailable to testify because he was outside the
jurisdiction. Petitioner objected to that course on the ground that
it would deprive him of his right to be confronted with the
witnesses against him. His objection was overruled, and the
transcript was admitted and read to the jury, which found him
guilty. On appeal,
Page 390 U. S. 721
the Oklahoma Court of Criminal Appeals affirmed his conviction.
Barber v. State, 388
Petitioner then sought federal habeas corpus, claiming that the
use of the transcript of Woods' testimony in his state trial
deprived him of his federal constitutional right to confrontation
in violation of the Sixth and Fourteenth Amendments. His contention
was rejected by the District Court and on appeal the Court of
Appeals for the Tenth Circuit, one judge dissenting, affirmed. 381
F.2d 479 (1966). We granted certiorari, 389 U.S. 819 (1967), to
consider petitioner's denial of confrontation claim, and we
Many years ago, this 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 of belief."
Mattox v. United States, 156 U.
, 156 U. S.
-243 (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 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
Pointer v. Texas, 380 U. S. 400
380 U. S. 405
(1965). See also Douglas v. Alabama, 380 U.
Page 390 U. S. 722
It is true that there has traditionally been an exception to the
confrontation requirement where a witness is unavailable and has
given testimony at previous judicial proceedings against the same
defendant which was subject to cross-examination by that defendant.
E.g., Mattox v. United States, supra,
testified in original trial died prior to the second trial). This
exception has been explained as arising from necessity and has been
justified on the ground that the right of cross-examination
initially afforded provides substantial compliance with the
purposes behind the confrontation requirement. See
Wigmore, Evidence § § 1395-1396, 1402 (3d ed.1940); C. McCormick,
Evidence §§ 231, 234 (1954).
Here, the State argues that the introduction of the transcript
is within that exception on the grounds that Woods was outside the
jurisdiction, and therefore "unavailable" at the time of trial, and
that the right of cross-examination was afforded petitioner at the
preliminary hearing, although not utilized then by him. For the
purpose of this decision we shall assume that petitioner made a
valid waiver of his right to cross-examine Woods at the preliminary
hearing, although such an assumption seems open to considerable
question under the circumstances. [Footnote 1
Page 390 U. S. 723
We start with the fact that the State made absolutely no effort
to obtain the presence of Woods at trial other than to ascertain
that he was in a federal prison outside Oklahoma. It must be
acknowledged that various courts [Footnote 2
] and commentators [Footnote 3
] have heretofore assumed that the mere absence
of a witness from the jurisdiction was sufficient ground for
dispensing with confrontation on the theory that
"it is impossible to compel his attendance, because the process
of the trial Court is of no force without the jurisdiction, and the
party desiring his testimony is therefore helpless."
5 Wigmore, Evidence § 1404 (3d ed.1940).
Whatever may have been the accuracy of that theory at one time,
it is clear that, at the present time, increased cooperation
between the States themselves and between the States and the
Federal Government has largely deprived it of any continuing
validity in the criminal law. [Footnote 4
Page 390 U. S. 724
For example, in the case of a prospective witness currently in
federal custody, 28 U.S.C. § 2241(c)(5) gives federal courts the
power to issue writs of habeas corpus ad testificandum
the request of state prosecutorial authorities. See Gilmore v.
129 F.2d 199, 202 (C.A. 10th Cir.1942);
United States v. McGaha, 205 F.
(D.C.E.D.Tenn.1962). In addition, it is the policy of
the United States Bureau of Prisons to permit federal prisoners to
testify in state court criminal proceedings pursuant to writs of
habeas corpus ad testificandum
issued out of state courts.
] Cf. Lawrence
373 F.2d 731 (C.A. 10th Cir.1967) (habeas
corpus ad prosequendum
In this case, the state authorities made no effort to avail
themselves of either of the above alternative means of seeking to
secure Woods' presence at petitioner's trial. The Court of Appeals
majority appears to have reasoned that, because the State would
have had to request an exercise of discretion on the part of
federal authorities, it was under no obligation to make any such
request. Yet, as Judge Aldrich, sitting by designation, pointed out
in dissent below, "the possibility of a refusal is not the
equivalent of asking and receiving a rebuff." 381 F.2d at 481. In
short, a witness is not "unavailable" for purposes of the foregoing
exception to the confrontation
Page 390 U. S. 725
requirement unless the prosecutorial authorities have made a
good faith effort to obtain his presence at trial. The State made
no such effort here, and, so far as this record reveals, the sole
reason why Woods was not present to testify in person was because
the State did not attempt to seek his presence. The right of
confrontation may not be dispensed with so lightly.
The State argues that petitioner waived his right to confront
Woods at trial by not cross-examining him at the preliminary
hearing. That contention is untenable. Not only was petitioner
unaware that Woods would be in a federal prison at the time of his
trial, but he was also unaware that, even assuming Woods'
incarceration, the State would make no effort to produce Woods at
trial. To suggest that failure to cross-examine in such
circumstances constitutes a waiver of the right of confrontation at
a subsequent trial hardly comports with this Court's definition of
a waiver as "an intentional relinquishment or abandonment of a
known right or privilege." Johnson v. Zerbst, 304 U.
, 304 U. S. 464
(1938); Brookhart v. Janis, 384 U. S.
, 384 U. S. 4
Moreover, we would reach the same result on the facts of this
case had petitioner's counsel actually cross-examined Woods at the
preliminary hearing. See Motes v. United States,
178 U. S. 458
(1900). The right to confrontation is basically a trial right. It
includes both the opportunity to cross-examine and the occasion for
the jury to weigh the demeanor of the witness. A preliminary
hearing is ordinarily a much less searching exploration into the
merits of a case than a trial, simply because its function is the
more limited one of determining whether probable cause exists to
hold the accused for trial. While there may be some justification
for holding that the opportunity for cross-examination of a witness
at a preliminary hearing satisfies the demands of the confrontation
clause where the witness is shown
Page 390 U. S. 726
to be actually unavailable, this is not, as we have pointed out,
such a case. [Footnote 6
The judgment of the Court of Appeals for the Tenth Circuit is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Since Woods and his attorney Parks presumably discussed Woods'
connection with the crime before the preliminary hearing, it would
seem highly probable that effective cross-examination by Parks of
Woods would have necessitated covering material about which Woods
had made confidential communications to Parks. While the State may
be correct in asserting that Woods had waived, under Oklahoma law,
his right to assert the attorney-client privilege as to those
matters by testifying, at the very least, serious ethical questions
would seem to be presented to Parks under those circumstances. And,
in fact, the cases cited by the State in support of its contention
that the attorney-client privilege would not have barred
cross-examination by Parks involved situations where the client had
testified about the existence and nature of the communications
between himself and his attorney prior to the introduction of the
attorney's testimony by way of rebuttal. E.g., Brown v.
9 Okla.Crim. 382, 132 P. 359 (1913); Boring v.
Harber, 130 Okla. 251
267 P. 252 (1927). As far as the record reveals, Woods did not
testify about any communications between himself and Parks, and
hence the applicability of the foregoing cases is questionable.
cases collected in 5 Wigmore, Evidence § 1404, n. 5
(3d ed., 1964 Supp.).
C. McCormick, Evidence § 234 (1954).
For witnesses not in prison, the Uniform Act To Secure the
Attendance of Witnesses from Without a State in Criminal
Proceedings provides a means by which prosecuting authorities from
one State can obtain an order from a court in the State where the
witness is found directing the witness to appear in court in the
first State to testify. The State seeking his appearance must pay
the witness a specified sum as a travel allowance and compensation
for his time. As of 1967, the Uniform Act was in force in 45
States, the District of Columbia, the Canal Zone, Puerto Rico, and
the Virgin Islands. See
9 Uniform Laws Ann. 50 (196,
Supp.). For witnesses in prison, quite probably many state courts
would utilize the common law writ of habeas corpus ad
at the request of prosecutorial authorities of a
sister State upon a showing that adequate safeguards to keep the
prisoner in custody would be maintained.
Department of Justice, United States Marshals Manual §§
Brief for the United States as
Amicus Curiae, Smith v. Hooey,
No. 495, Misc., October
Term, 1967 (habeas corpus ad prosequendum
from state court
normally honored by Bureau of Prisons).
Cf. Holman v. Washington,
364 F.2d 618 (C.A. 5th
Cir.1966); Government of the Virgin Islands v. Aquino,
F.2d 540 (C.A.3d Cir.1967).
MR. JUSTICE HARLAN, concurring.
I agree that the State's failure to attempt to obtain the
presence of the witness denied petitioner due process, and I
therefore concur in the opinion of the Court on the premises of my
opinion in Pointer v. Texas, 380 U.
, 380 U. S.