At respondent's preliminary hearing in an Ohio state court on
charges of forgery of a check in the name of one Bernard Isaacs and
of possession of stolen credit cards belonging to Isaacs and his
wife, respondent's counsel called as a witness the Isaacs'
daughter, who testified that she had permitted respondent to use
her apartment for several days while she was away. However, she
refused to admit that she had given respondent checks and the
credit cards without informing him that she did not have permission
to use them. Respondent's counsel did not ask to have the witness
declared hostile or to place her on cross-examination. At
respondent's subsequent criminal trial, he testified that the
daughter had given him her parents' checkbook and credit cards with
the understanding that he could use them. When the daughter failed
to appear at the trial despite the State's having issued five
separate subpoenas to her at her parents' residence, the State
offered in rebuttal the transcript of her preliminary hearing
testimony, relying on an Ohio statute which permits the use of such
testimony when the witness "cannot for any reason be produced at
the trial." At a
voir dire hearing on admissibility,
conducted after the defense objected to the use of the transcript
as violative of the Sixth Amendment's Confrontation Clause, the
mother, as the sole witness, testified that the daughter had left
home soon after the preliminary hearing; that, about a year before
the trial, a San Francisco social worker had communicated with the
parents about the daughter's welfare application filed there; that
the last time the daughter telephoned, some seven or eight months
before trial, she told her parents that she "was traveling" outside
Ohio, but did not reveal where she was; that the mother knew of no
way to reach the daughter in case of an emergency; and that she did
not know of anybody who knew where the daughter was. The trial
court admitted the transcript into evidence, and respondent was
convicted. Affirming the Ohio Court of Appeals' reversal of the
conviction, the Ohio Supreme Court held that the transcript was
inadmissible because the daughter had not been actually
cross-examined at the preliminary hearing and was absent at trial,
the admission of the transcript thus having violated respondent's
confrontation right.
Held: The introduction in evidence at respondent's
trial of the daughter's
Page 448 U. S. 57
preliminary hearing testimony was constitutionally permissible.
Pp.
448 U. S.
62-77
(a) 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.
Cf. Mancusi v.
Stubbs, 408 U. S. 204. Pp.
448 U. S.
62-66.
(b) The daughter's prior testimony at the preliminary hearing
bore sufficient "indicia of reliability."
Cf. California v.
Green, 399 U. S. 149. It
need not be decided whether, under
Green, the mere
opportunity to cross-examine satisfies the Confrontation Clause,
for defense counsel tested the daughter's testimony with the
equivalent of significant cross-examination. His questioning, which
was replete with leading questions, clearly partook of
cross-examination as a matter of form, and comported with the
principal purpose of cross-examination by challenging the
daughter's veracity. Regardless of how state law might formally
characterize the questioning, it afforded substantial compliance
with the purposes behind the confrontation requirement. Nor can
this case be distinguished from
Green merely because the
daughter was not personally available for questioning at trial or
because respondent had a different lawyer at trial from the one at
the preliminary hearing. Moreover, this case does not fall among
those in which a particularized search for "indicia of reliability"
must be made. Pp.
448 U. S.
67-73.
(c) On the facts presented, the trial court and the Ohio Supreme
Court correctly concluded that the daughter's unavailability to
appear at the trial, in the constitutional sense, was established.
Pp.
448 U. S.
74-77.
55 Ohio St.2d 191, 378 N.E.2d 492, reversed and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, POWELL, and REHNQUIST, JJ.,
joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL
and STEVENS, JJ., joined,
post, p.
448 U. S.
77.
Page 448 U. S. 58
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
Local police arrested respondent, Herschel Roberts, on January
7, 1975, in Lake County, Ohio. 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 in Municipal Court on January 10.
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 (including the credit
cards), and for possession of heroin. The attorney who represented
respondent at the preliminary hearing withdrew upon
Page 448 U. S. 59
becoming a Municipal Court Judge, and new counsel was appointed
for Roberts.
Between November, 1975, and March, 1976, five subpoenas for four
different trial dates [
Footnote
1] were issued to Anita at her parents' Ohio residence. The
last three carried a written instruction that Anita should "call
before appearing." She was not at the residence when these were
executed. She did not telephone, and she did not appear at
trial.
In March, 1976, the case went to trial before a jury in the
Court of Common Pleas. Respondent 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. Tr. 231-232. Relying
on Ohio Rev.Code Ann. § 2945.49 (1975), [
Footnote 2] 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. Tr. 273-274.
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
Page 448 U. S. 60
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. App. 9. Nor did she "know of
anybody who knows where she is."
Id. at 11. The trial
court admitted the transcript into evidence. Respondent was
convicted on all counts.
The Court of Appeals of Ohio reversed. After reviewing the
voir dire, that court concluded that the prosecution had
failed to make a showing of a "good faith effort" to secure the
absent witness' attendance, as required by
Barber v. Page,
390 U. S. 719,
390 U. S.
722-725 (1968). The court noted that
"we have no witness from the prosecution to testify . . . that
no one on behalf of the State could determine Anita's whereabouts,
[or] that anyone had exhausted contact with the San Francisco
social worker."
App. 5. Unavailability would have been established, the court
said,
"[h]ad the State demonstrated that its subpoenas were never
actually served on the witness and that they were unable to make
contact in any way with the witness. . . . Until the Isaacs'
voir dire, requested by the defense, the State had done
nothing, absolutely nothing, to show the Court that Anita would be
absent because of unavailability, and they showed no effort having
been made to seek out her whereabouts for purpose of trial."
Ibid.
The Supreme Court of Ohio, by a 4-3 vote, affirmed, but did so
on other grounds. 55 Ohio St.2d 191, 378 N.E.2d 492 (1978). It
first held that the Court of Appeals had erred in concluding that
Anita was not unavailable.
Barber v. Page was
distinguished as a case in which "the government knew where
Page 448 U. S. 61
the absent witness was," whereas Anita's "whereabouts were
entirely unknown." 55 Ohio St.2d at 194, 378 N.E.2d at 495.
"[T]he trial judge could reasonably have concluded from Mrs.
Isaacs'
voir dire testimony that due diligence could not
have procured the attendance of Anita Isaacs;"
he "could reasonably infer that Anita had left San Francisco";
and he "could properly hold that the witness was unavailable to
testify in person."
Id. at 195, 378 N.E.2d at 495-496.
The court, nonetheless, 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,
id. at 196, 378
N.E.2d at 496, and citing the dissenting opinion in
California
v. Green, 399 U. S. 149,
399 U. S. 189
(1970), the court held that the mere opportunity to cross-examine
at a preliminary hearing did not afford constitutional
confrontation for purposes of trial.
See 55 Ohio St.2d at
191, 378 N.E.2d at 493 (court syllabus). [
Footnote 3] 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. 55
Ohio St.2d at 198, and n. 2, 378 N.E.2d at 497, and n. 2, citing
399 U.S. at
399 U. S.
165-166. 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
Page 448 U. S. 62
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'" (citing United States v. Allen, 409 F.2d
611, 613 (CA10 1969)). 55 Ohio St.2d at 200, 378 N.E.2d at
498.
We granted certiorari to consider these important issues under
the Confrontation Clause. 441 U.S. 904 (1979).
II
A
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.
See E. Cleary, McCormick on Evidence § 244 (2d ed.1972)
(McCormick) (history of rule);
id. §§ 252-324
(exceptions). [
Footnote 4]
These exceptions vary among jurisdictions as to number, nature, and
detail.
See, e.g., Fed.Rules Evid. 803, 804 (over 20
specified exceptions). 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." Morgan & Maguire, Looking
Backward and Forward at Evidence, 50 Harv.L.Rev. 909, 921
(1937).
The Sixth Amendment's Confrontation Clause, made applicable to
the States through the Fourteenth Amendment,
Pointer v.
Texas, 380 U. S. 400,
380 U. S.
403-405 (1965);
Davis v. Alaska, 415 U.
S. 308,
415 U. S. 315
(1974), provides: "In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted
Page 448 U. S. 63
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.
See
Mattox v. United States, 156 U. S. 237,
156 U. S. 243
(1895) ("[T]here could be nothing more directly contrary to the
letter of the provision in question than the admission of dying
declarations"). 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.
See California v.
Green, 399 U.S. at
399 U. S.
156-157, and nn. 9 and 10;
see also McCormick §
252, p. 606. Moreover, underlying policies support the same
conclusion. The Court has emphasized that the Confrontation Clause
reflects a preference for face-to-face confrontation at trial,
[
Footnote 5] and that "a
primary interest secured by [the provision] is the right of
cross-examination."
Douglas v. Alabama, 380 U.
S. 415,
380 U. S. 418
(1965). [
Footnote 6] In short,
the Clause envisions
"a personal examination an cross-examination of the
Page 448 U. S. 64
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.S. at
156 U. S.
242-243. These means of testing accuracy are so
important that the absence of proper confrontation at trial "calls
into question the ultimate
integrity of the factfinding
process.'" Chambers v. Mississippi, 410 U.
S. 284, 410 U. S. 295
(1973), quoting Berger v. California, 393 U.
S. 314, 393 U. S. 315
(1969).
The Court, however, has recognized that competing interests, if
"closely examined,"
Chambers v. Mississippi, 410 U.S. at
410 U. S. 295,
may warrant dispensing with confrontation at trial.
See Mattox
v. United States, 156 U.S. at
156 U. S. 243
("general rules of law of this kind, however beneficent in their
operation and valuable to the accused, must occasionally give way
to considerations of public policy and the necessities of the
case"). Significantly, every jurisdiction has a strong interest in
effective law enforcement, and in the development and precise
formulation of the rules of evidence applicable in criminal
proceedings.
See Snyder v. Massachusetts, 291 U. S.
97,
291 U. S. 107
(1934);
California v. Green, 399 U.S. at
399 U. S.
171-172 (concurring opinion).
This Court, in a series of cases, has sought to accommodate
these competing interests. True to the common law tradition, the
process has been gradual, building on past decisions, drawing on
new experience, and responding to changing conditions. The Court
has not sought to "map out a theory of the Confrontation Clause
that would determine the validity
Page 448 U. S. 65
of all . . . hearsay
exceptions.'" California v.
Green, 399 U.S. at 399 U. S. 162.
But a general approach to the problem is discernible.
B
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.
See Mancusi v. Stubbs, 408 U.
S. 204 (1972);
Barber v. Page, 390 U.
S. 719 (1968).
See also Motes v. United States,
178 U. S. 458
(1900);
California v. Green, 399 U.S. at
399 U. S.
161-162,
399 U. S. 165,
399 U. S. 167,
n. 16. [
Footnote 7]
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."
Snyder v.
Massachusetts, 291 U.S. at
291 U. S. 107.
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
400 U. S.
89, and to 'afford the trier of fact a satisfactory
basis for evaluating
Page 448 U. S. 66
the truth of the prior statement,'
California v. Green,
supra, at
399 U. S. 161. 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.'"
408 U.S. at
408 U. S.
213.
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."
Mattox v. United States, 156 U.S. at
156 U. S. 244.
[
Footnote 8] This reflects the
truism that "hearsay rules and the Confrontation Clause are
generally designed to protect similar values,"
California v.
Green, 399 U.S. at
399 U. S. 155,
and "stem from the same roots,"
Dutton v. Evans,
400 U. S. 74,
400 U. S. 86
(1970). 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. [
Footnote 9]
Page 448 U. S. 67
III
We turn first to that aspect of confrontation analysis deemed
dispositive by the Supreme Court of Ohio, and
Page 448 U. S. 68
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 professes 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,
Mattox v. United States, 156 U.
S. 237 (1895);
Mancusi v. Stubbs, 408 U.
S. 204 (1972), and recent dicta suggesting the
admissibility of preliminary hearing testimony under proper
circumstances,
Barber v. Page, 390 U.S. at
390 U. S.
725-726;
Page 448 U. S. 69
Pointer v. Texas, 380 U.S. at
380 U. S. 407,
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."
399 U.S. at
399 U. S. 165.
These factors, the Court concluded, provided all that the Sixth
Amendment demands: "substantial compliance with the purposes behind
the confrontation requirement."
Id. at
399 U. S. 166.
[
Footnote 10]
Page 448 U. S. 70
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.
Id. at
399 U. S. 151.
Thus, MR. JUSTICE BRENNAN, writing in dissent, could conclude only
that "[p]erhaps" "the mere opportunity for face-to-face encounter
[is] sufficient."
Id. at
399 U. S. 200,
n. 8.
See Note, 52 Texas L.Rev. 1167, 1170 (1974).
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.
See Westen, The Future of Confrontation, 77
Mich.L.Rev. 115, 1211 (1979) (issue is "truly difficult to resolve
under conventional theories of confrontation"). 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, [
Footnote 11] the
principal tool and hallmark of cross-examination.
Page 448 U. S. 71
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."
Davenport, The Confrontation Clause and the Co-Conspirator
Exception in Criminal Prosecutions: A Functional Analysis, 85
Harv.L.Rev. 1378 (1972). 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." App. 21.
Cf. Davis v.
Alaska, 415 U. S. 308,
415 U. S.
316-317 (1974).
Respondent argues that, because defense counsel never asked the
court to declare Anita hostile, his questioning necessarily
occurred on direct examination.
See State v. Minneker, 27
Ohio St.2d 155, 271 N.E.2d 821 (1971). But however state law might
formally characterize the questioning of Anita, it afforded
"substantial compliance with the purposes behind the confrontation
requirement,"
Green, 399 U.S. at
399 U. S. 166,
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."
Ibid.
Page 448 U. S. 72
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."
Id. at
399 U. S.
165.
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
Page 448 U. S. 73
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.
See also
Mancusi v. Stubbs, 408 U.S. at
408 U. S.
216.
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.'""
408 U.S. at
408 U. S. 216.
[
Footnote 12]
Page 448 U. S. 74
IV
Our holding that the Supreme Court of Ohio erred in its "indicia
of reliability" analysis does not fully dispose of the case, for
respondent would defend the judgment on an alternative ground. The
State, he contends, failed to lay a proper predicate for admission
of the preliminary hearing transcript by its failure to demonstrate
that Anita Isaacs was not available to testify in person at, the
trial. All the justices of the Supreme Court of Ohio rejected this
argument. 55 Ohio St.2d at 195 and 199, 378 N.E.2d at 495 and
497.
A
The basic litmus of Sixth Amendment unavailability is
established:
"[A] witness is not 'unavailable' for purposes of . . . the
exception to the confrontation requirement unless the prosecutorial
authorities have made a
good faith effort to obtain his
presence at trial."
Barber v. Page, 390 U.S. at
390 U. S.
724-725 (emphasis added).
Accord, Mancusi v. Stubbs,
supra; California v. Green, 399 U.S. at
399 U. S.
161-162,
399 U. S. 165,
399 U. S. 167,
n. 16;
Berger v. California, 393 U.
S. 314 (1969).
Although it might be said that the Court's prior cases provide
no further refinement of this statement of the rule, certain
general propositions safely emerge. The law does not require the
doing of a futile act. Thus, if no possibility of procuring the
witness exists (as, for example, the witness' intervening death),
"good faith" demands nothing of the prosecution. But if there is a
possibility, albeit remote, that affirmative measures might produce
the declarant, the obligation of good faith may demand their
effectuation. "The lengths to which the prosecution must go to
produce a witness . . . is a question of reasonableness."
California v. Green, 399 U.S. at
399 U. S. 189,
n. 22 (concurring opinion, citing
Barber v. Page, supra).
The ultimate question is whether the witness is unavailable despite
good faith efforts undertaken prior to trial to locate and present
that witness. As with other evidentiary
Page 448 U. S. 75
proponents, the prosecution bears the burden of establishing
this predicate.
B
On the facts presented, we hold that the trial court and the
Supreme Court of Ohio correctly concluded that Anita's
unavailability, in the constitutional sense, was established.
At the
voir dire hearing, called for by the defense, it
was shown that, some four months prior to the trial, the prosecutor
was in touch with Amy Isaacs and discussed with her Anita's
whereabouts. It may appropriately be inferred that Mrs. Isaacs told
the prosecutor essentially the same facts to which she testified at
voir dire: that the Isaacs had last heard from Anita
during the preceding summer; that she was not then in San
Francisco, but was traveling outside Ohio; and that the Isaacs and
their other children knew of no way to reach Anita even in an
emergency. This last fact takes on added significance when it is
recalled that Anita's parents earlier had undertaken affirmative
efforts to reach their daughter when the social worker's inquiry
came in from San Francisco. This is not a case of parents
abandoning all interest in an absent daughter.
The evidence of record demonstrates that the prosecutor issued a
subpoena to Anita at her parents' home, not only once, but on five
separate occasions over a period of several months. In addition, at
the
voir dire argument, the prosecutor stated to the court
that respondent
"witnessed that I have attempted to locate, I have subpoenaed,
there has been a
voir dire of the witness' parents, and
they have not been able to locate her for over a year."
App. 12.
Given these facts, the prosecution did not breach its duty of
good faith effort. To be sure, the prosecutor might have tried to
locate by telephone the San Francisco social worker with whom Mrs.
Isaacs had spoken many months before, and might have undertaken
other steps in an effort to find Anita. One, in hindsight, may
always think of other things. Nevertheless,
Page 448 U. S. 76
the great improbability that such efforts would have resulted in
locating the witness, and would have led to her production at
trial, neutralizes any intimation that a concept of reasonableness
required their execution. We accept as a general rule, of course,
the proposition that "the possibility of a refusal is not the
equivalent of asking and receiving a rebuff."
Barber v.
Page, 390 U.S. at
390 U. S. 724,
quoting from the dissenting opinion in that case in the Court of
Appeals (381 F.2d 479, 481 (CA10 1966)). But the service and
ineffectiveness of the five subpoenas and the conversation with
Anita's mother were far more than mere reluctance to face the
possibility of a refusal. It was investigation at the last-known
real address, and it was conversation with a parent who was
concerned about her daughter's whereabouts.
Barber and
Mancusi v. Stubbs, supra, are the
cases in which this Court has explored the issue of constitutional
unavailability. Although each is factually distinguishable from
this case,
Mancusi provides significant support for a
conclusion of good faith effort here, [
Footnote 13] and
Barber has no contrary
significance. Insofar as this record discloses no basis for
concluding that Anita was abroad, the case is factually weaker than
Mancusi; but it is stronger than
Mancusi in the
sense that the Ohio prosecutor, unlike the prosecutor in
Mancusi, had no clear indication, if any at all, of
Anita's whereabouts. In
Barber, the Court found an absence
of good faith effort where
Page 448 U. S. 77
the prosecution made no attempt to secure the presence of a
declarant incarcerated in a federal penitentiary in a neighboring
State. There, the prosecution knew where the witness was,
procedures existed whereby the witness could be brought to the
trial, and the witness was not in a position to frustrate efforts
to secure his production. Here, Anita's whereabouts were not known,
and there was no assurance that she would be found in a place from
which she could be forced to return to Ohio.
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.
[
Footnote 1]
A number of continuances were granted for reasons unrelated to
Anita's absence.
[
Footnote 2]
The statute reads:
"Testimony taken at an examination or a preliminary hearing at
which the defendant is present, or at a former trial of the cause,
or taken by deposition at the instance of the defendant or the
state, may be used whenever the witness giving such testimony dies,
or cannot for any reason be produced at the trial, or whenever the
witness has, since giving such testimony, become incapacitated to
testify. If such former testimony is contained within a bill of
exceptions, or authenticated transcript of such testimony, it shall
be proven by the bill of exceptions, or transcript, otherwise by
other testimony."
[
Footnote 3]
The Ohio "syllabus rule" is stated in
Baltimore & Ohio
R. Co. v. Baillie, 112 Ohio St. 567, 570, 148 N.E. 233, 234
(1925).
See Zacchini v. Scripps-Howard Broadcasting Co.,
433 U. S. 562,
433 U. S. 565
(1977).
[
Footnote 4]
With the caveat, "[s]implification has a measure of
falsification," McCormick defines hearsay evidence as
"testimony in court, or written evidence, of a statement made
out of court, the statement being offered as an assertion to show
the truth of matters asserted therein, and thus resting for its
value upon the credibility of the out-of-court asserter."
§ 246, p. 584.
[
Footnote 5]
See California v. Green, 399 U.
S. 149,
399 U. S. 157
(1970) ("it is this literal right to
confront' the witness at
the time of the trial that forms the core of the values furthered
by the Confrontation Clause"); id. at 399 U. S.
172-189 (concurring opinion); Barber v. Page,
390 U. S. 719,
390 U. S. 725
(1968); Dowdell v. United States, 221 U.
S. 325, 221 U. S. 330
(1911).
[
Footnote 6]
See also Davis v. Alaska, 415 U.
S. 308,
415 U. S. 315
(1974);
Bruton v. United States, 391 U.
S. 123,
391 U. S. 126
(1968);
Pointer v. Texas, 380 U.
S. 400,
380 U. S.
406-407 (1965);
California v. Green, 399 U.S.
at
399 U. S. 158
(cross-examination is the "
greatest legal engine ever invented
for the discovery of truth,'" quoting 5 J. Wigmore, Evidence §1367
(3d ed.1940)). Of course, these purposes are interrelated, since
one critical goal of cross-examination is to draw out discrediting
demeanor to be viewed by the factfinder. See Government of
Virgin Islands v. Aquino, 378 F.2d 540, 548 (CA3
1967).
Confrontation at trial also operates to ensure reliability in
other ways. First,
"[t]he requirement of personal presence . . . undoubtedly makes
it more difficult to lie against someone, particularly if that
person is an accused and present at trial."
4 J. Weinstein & M. Berger, Weinstein's Evidence � 800[01],
p. 800-10 (1979).
See also Note, 54 Iowa L.Rev. 360, 365
(1968). Second, it
"insures that the witness will give his state ments under oath
-- thus impressing him with the seriousness of the matter and
guarding against the lie by the possibility of a penalty for
perjury."
California v. Green, 399 U.S. at
399 U. S.
158.
[
Footnote 7]
A demonstration of unavailability, however, is not always
required. In
Dutton v. Evans, 400 U. S.
74 (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.
Cf.
Read, The New Confrontation -- Hearsay Dilemma, 45 S.Cal.L.Rev. 1,
43, 49 (1972); The Supreme Court, 1970 Term, 85 Harv.L.Rev. 3,
194-195, 197-198 (1971).
[
Footnote 8]
See, e.g., Pointer v. Texas, 380 U.S. at
380 U. S. 407
(dying declarations);
Mattox v. United States, 156 U.S. at
156 U. S.
243-244 (same);
Mancusi v. Stubbs, 408 U.
S. 204,
408 U. S.
213-216 (1972) (cross-examined prior-trial testimony);
Comment, 30 La.L.Rev. 651, 668 (1970) ("Properly administered, the
business and public records exceptions would seem to be among the
safest of the hearsay exceptions").
[
Footnote 9]
The complexity of reconciling the Confrontation Clause and the
hearsay rules has triggered an outpouring of scholarly commentary.
Few observers have commented without proposing, roughly or in
detail, a basic approach. Some have advanced theories that would
shift the general mode of analysis in favor of the criminal
defendant.
See F. Heller, The Sixth Amendment 105 (1951);
Seidelson, Hearsay Exceptions and the Sixth Amendment, 40
Geo.Wash.L.Rev. 76, 91-92 (1971) (all hearsay should be excluded
except, perhaps, when prosecution shows absolute necessity, high
degree of trustworthiness, and "total absence" of motive to
falsify); The Supreme Court, 1967 Term, 82 Harv.L.Rev. 63, 237
(1968); Note, 31 Vand.L.Rev. 682, 694 (1978).
Others have advanced theories that would relax constitutional
restrictions on the use of hearsay by the prosecutor.
See
5 J. Wigmore, Evidence §1397, p. 159 (J. Chadbourn rev.1974); Note,
The Confrontation Test for Hearsay Exceptions: An Uncertain
Standard, 59 Calif.L.Rev. 580, 594 (1971) ("fixed procedural
definition of the confrontation clause makes the actual protection
afforded depend upon the particular evidence rules in force in each
state"); Younger, Confrontation and Hearsay: A Look Backward, A
Peek Forward, 1 Hofstra L.Rev. 32 (1973); Westen, The Future of
Confrontation, 77 Mich.L.Rev. 1185 (1979); Graham, The
Confrontation Clause, the Hearsay Rule, and the Forgetful Witness,
56 Texas L.Rev. 151 (1978); Note, 75 Yale L.J. 1434 (1966).
See
California v. Green, 399 U.S. at
399 U. S.
172-189 (Harlan, J., concurring) (Confrontation Clause
requires only that prosecution produce available witnesses; Due
Process Clause bars conviction "where the critical issues at trial
were supported only by
ex parte testimony not subjected to
cross-examination, and not found to be reliable by the trial
judge,"
id. at
399 U. S. 186,
n. 21).
Still others have proposed theories that might either help or
hurt the accused.
See Graham, The Right of Confrontation
and the Hearsay Rule: Sir Walter Raleigh Loses Another One, 8
Crim.L.Bull. 99, 129 (1972); Baker, The Right to Confrontation, the
Hearsay Rules, and Due Process, 6 Conn.L.Rev. 529 (1974); Comment,
13 UCLA L.Rev. 366, 376-377 (1966) (advocating sliding-scale
"probative value-need quotient"); Comment, 52 Texas L.Rev. 1167,
1190-1191 (1974).
Finally, a number of commentators, while sometimes criticizing
particular results or language in past decisions, have generally
agreed with the Court's present approach.
See Davenport,
The Confrontation Clause and The Co-Conspirator Exception in
Criminal Prosecutions: A Functional Analysis, 85 Harv.L.Rev. 1378,
1405 (1972); Read, The New Confrontation-Hearsay Dilemma, 45
S.Cal.L.Rev. 1, 48 (1972) ("the traditional approach . . . with its
recognition of a core constitutional value to be preserved, but
with its reluctance to make sweeping declarations as to the meaning
of that right . . . is the best . . . compromise"); Note, 113
U.Pa.L.Rev. 741, 748, and n. 38 (1965) (requiring "adequate
substitute for confrontation," while recognizing that no substitute
can be "fully adequate").
See also Natali,
Green,
Dutton and
Chambers: Three Cases in Search of a
Theory, 7 Rutgers-Camden L.J. 43, 62 (1975); The Supreme Court,
1970 Term, 85 Harv.L.Rev. 3, 199 (1971).
Notwithstanding this divergence of critical opinion, we have
found no commentary suggesting that the Court has misidentified the
basic interests to be accommodated. Nor has any commentator
demonstrated that prevailing analysis is out of line with the
intentions of the Framers of the Sixth Amendment. Convinced that
"no rule will perfectly resolve all possible problems," Natali, 7
Rutgers-Camden L.J. at 73, we reject the invitation to overrule a
near-century of jurisprudence. Our reluctance to begin anew is
heightened by the Court's implicit prior rejection of principal
alternative proposals,
see Dutton v. Evans, 400 U.S. at
400 U. S. 93-100
(concurring opinion), and
California v. Green, 399 U.S. at
399 U. S.
172-189 (concurring opinion); the mutually critical
character of the commentary; and the Court's demonstrated success
in steering a middle course among proposed alternatives.
[
Footnote 10]
This reasoning appears in Part III of
Green, the only
section of that opinion directly relevant to the issue raised here.
The Ohio court in the present case appears to have dismissed Part
III as "dictum." 55 Ohio St.2d at 198, 378 N.E.2d at 497. The
United States has suggested that Part III properly is viewed as an
"alternative holding." Brief for United States as
Amicus
Curiae 24, n. 15. Either view, perhaps, would diminish
Green's precedential significance. We accept neither.
In Part II of
Green, the Court held that use of a trial
witness' prior inconsistent statements as substantive evidence did
not, as a general rule, violate the Confrontation Clause. In Part
III, the Court went further and held:
"Porter's preliminary hearing testimony was admissible . . .
wholly apart from the question of whether respondent had an
effective opportunity for confrontation at the subsequent trial.
For Porter's statement at the preliminary hearing had already been
given under circumstances closely approximating those that surround
the typical trial."
399 U.S. at
399 U. S. 165.
In Part IV, the Court returned to the general rule articulated in
Part II. The Court contrasted cases in which the declarant
testifies at trial that he has forgotten the underlying events,
rather than claiming recollection but advancing an inconsistent
story. The Court noted that commentators disagreed over whether the
former class of cases should be brought within the general rule
articulated in Part II.
Id. at
399 U. S. 169,
n. 18. Given the difficulty of the issue, which was neither briefed
in this Court nor addressed below, the Court remanded the case for
a determination of whether assertedly inconsistent remarks made by
Porter to a police officer could be admitted under the rule of Part
II. Since the critical reason for this disposition was Porter's
asserted forgetfulness at trial, the same result clearly would have
obtained in regard to Porter's preliminary hearing testimony were
it not for the Court's holding in Part III. It follows that Part
III was not an alternative holding, and certainly was not dictum.
That portion of the opinion alone dispositively established the
admissibility of Porter's preliminary hearing testimony.
See
also Note, 59 Calif.L.Rev. at 589; The Supreme Court, 1969
Term, 84 Harv.L.Rev. 1, 114-115 (1970).
[
Footnote 11]
No less than 17 plainly leading questions were asked, as
indicated by phrases in counsel's inquiries: "is[n't] it a fact . .
. that"; "is it to your knowledge, then, that . . ."; "is[n't] that
correct"; "you never gave them . . ."; "this wasn't then in the
pack . . ."; "you have never [not] seen [discussed; talked] . . .";
"you never gave. . . ."
[
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
408 U. S.
214-215. 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
408 U. S. 209.
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
380 U. S. 407.
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
156 U. S. 244
("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 13]
In
Mancusi, the declarant,
"who had been born in Sweden but had become a naturalized
American citizen, had returned to Sweden and taken up permanent
residence there."
408 U.S. at
408 U. S. 209.
While in this country, he had testified against Stubbs at his
Tennessee trial for murder and kidnaping. Stubbs was convicted, but
obtained habeas corpus relief 10 years later, and was retried by
Tennessee. Before the second trial, the prosecution sent a subpoena
to be served in Texas, the declarant's last place of residence in
this country. It could not be served. The Court rejected Stubbs'
assertion that the prosecution had not undertaken good faith
efforts in failing to do more. "Tennessee . . . was powerless to
compel his attendance . . . either through its own process or
through established procedures."
Id. at
408 U. S.
212.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR.
JUSTICE STEVENS join, dissenting.
The Court concludes that, because Anita Isaacs' testimony at
respondent's preliminary hearing was subjected to the equivalent of
significant cross-examination, such hearsay evidence bore
sufficient "indicia of reliability" to permit its introduction at
respondent's trial without offending the Confrontation Clause of
the Sixth Amendment. As the Court recognizes, however, the
Constitution imposes the threshold requirement that the prosecution
must demonstrate the unavailability of the witness whose
prerecorded testimony it wishes to use against the defendant.
Because I cannot agree that the State has met its burden of
establishing this predicate, I dissent. [
Footnote 2/1]
Page 448 U. S. 78
"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
goal."
Pointer v. Texas, 380 U. S. 400,
380 U. S. 405
(1965).
Accord, Berger v. California, 393 U.
S. 314,
393 U. S. 315
(1969);
Barber v. Page, 390 U. S. 719,
390 U. S. 721
(1968);
Pointer v. Texas, supra at
380 U. S. 410
(STEWART, J., concurring);
Kirby v. United States,
174 U. S. 47,
174 U. S. 55-56
(1899). Historically, the inclusion of the Confrontation Clause in
the Bill of Rights reflected the Framers' conviction that the
defendant must not be denied the opportunity to challenge his
accusers in a direct encounter before the trier of fact.
See
California v. Green, 399 U. S. 149,
399 U. S.
156-158 (1970);
Park v. Huff, 506 F.2d 849,
861-862 (CA5 1975) (Gewin, J., concurring). At the heart of this
constitutional guarantee is the accused's right to compel the
witness
"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.
S. 237,
156 U. S.
242-243 (1895).
See also California v. Green,
supra, at
399 U. S.
174-183 (Harlan, J., concurring).
Despite the literal language of the Sixth Amendment, [
Footnote 2/2] our cases have recognized the
necessity for a limited exception to the confrontation requirement
for the prior testimony of a witness who is unavailable at the
defendant's trial. In keeping with the importance of this provision
in our constitutional scheme, however, we have imposed a heavy
burden on the prosecution either to secure the presence of the
witness or to
Page 448 U. S. 79
demonstrate the impossibility of that endeavor.
Barber v.
Page, supra, held that the absence of a witness from the
jurisdiction does not excuse the State's failure to attempt to
compel the witness' attendance at trial; in such circumstances, the
government must show that it has engaged in a diligent effort to
locate and procure the witness' return.
"In short, a witness is not 'unavailable' for purposes of the
foregoing exception to the confrontation requirement unless the
prosecutorial authorities have made a good faith effort to obtain
his presence at trial."
Id. at
390 U. S.
724-725.
See, e.g., United States v. Mann, 590
F.2d 361, 367 (CA1 1978);
United States v. Lynch, 163
U.S.App.D.C. 6, 18-19, 499 F.2d 1011, 1023-1024 (1974);
Government of the Virgin Islands v. Aquino, 378 F.2d 540,
549-552 (CA3 1967).
See generally 5 J. Wigmore, Evidence
§1405 (J. Chadbourn rev.1974) and cases cited therein.
In the present case, I am simply unable to conclude that the
prosecution met its burden of establishing Anita Isaacs'
unavailability. From all that appears in the record -- and there
has been no suggestion that the record is incomplete in this
respect -- the State's total effort to secure Anita's attendance at
respondent's trial consisted of the delivery of five subpoenas in
her name to her parents' residence, and three of those were issued
after the authorities had learned that she was no longer living
there. [
Footnote 2/3] At least four
months before the trial began, the prosecution was aware that Anita
had moved away; yet, during that entire interval, it did nothing
whatsoever to try to make contact with her. It is difficult to
believe that the State would have been so derelict in attempting to
secure the witness' presence at trial had it not had her
Page 448 U. S. 80
favorable preliminary hearing testimony upon which to rely in
the event of her "unavailability." The perfunctory steps which the
State took in this case can hardly qualify as a "good faith
effort." In point of fact, it was no effort at all.
The Court, however, is apparently willing to excuse the
prosecution's inaction on the ground that any endeavor to locate
Anita Isaacs was unlikely to bear fruit.
See ante at
448 U. S. 75-76.
I not only take issue with the premise underlying that reasoning --
that the improbability of success can condone a refusal to conduct
even a cursory investigation into the witness' whereabouts -- but I
also seriously question the Court's conclusion that a bona fide
search in the present case would inevitably have come to
naught.
Surely the prosecution's mere speculation about the difficulty
of locating Anita Isaacs cannot relieve it of the obligation to
attempt to find her. Although the rigor of the undertaking might
serve to palliate a failure to prevail, it cannot justify a failure
even to try. Just as
Barber cautioned that "
the
possibility of a refusal is not the equivalent of asking and
receiving a rebuff,'" 390 U.S. at 390 U. S. 724
(quoting the decision below, 381 F.2d 479, 481 (CA10 1966)
(Aldrich, J., dissenting)), so, too, the possibility of a defeat is
not the equivalent of pursuing all obvious leads and returning
empty-handed. The duty of "good faith effort" would be meaningless
indeed "if that effort were required only in circumstances where
success was guaranteed." @Mancusi v. Stubbs, 408 U.
S. 204, 408 U. S. 223
(1972) (MARSHALL, J., dissenting).
Nor do I concur in the Court's bleak prognosis of the likelihood
of procuring Anita Isaacs' attendance at respondent's trial.
[
Footnote 2/4] Although Anita's
mother testified that she had no
Page 448 U. S. 81
current knowledge of her daughter's whereabouts, the prosecution
possessed sufficient information upon which it could have at least
initiated an investigation. As the Court acknowledges, one
especially promising lead was the San Francisco social worker to
whom Mrs. Isaacs had spoken and with whom Anita had filed for
welfare. What the Court fails to mention, however, is that the
prosecution had more to go on than that datum alone. For example,
Mrs. Isaacs testified that, on the same day she talked to the
social worker, she also spoke to her daughter. And although Mrs.
Isaacs told defense counsel that she knew of no way to get in touch
with her daughter in an emergency, Tr.195, in response to a similar
question from the prosecutor, she indicated that someone in Tucson
might be able to contact Anita.
Id., at 198-199. It would
serve no purpose here to essay an exhaustive catalog of the
numerous measures the State could have taken in a diligent attempt
to locate Anita. It suffices simply to note that it is not
"hindsight,"
see ante at
448 U. S. 75,
that permits us to envision how a skilled investigator, armed with
this information (and any additional facts not brought out through
the
voir dire), [
Footnote
2/5] might have discovered Anita's whereabouts
Page 448 U. S. 82
with reasonable effort. Indeed, precisely because the
prosecution did absolutely nothing to try to locate Anita,
hindsight does not enhance the vista of investigatory opportunities
that were available to the State had it actually attempted to find
her.
In sum, what the Court said in
Barber v. Page, 390 U.S.
at
390 U. S. 725,
is equally germane here:
"[S]o far as this record reveals, the sole reason why [the
witness] was not present to testify in person was because the State
did not attempt to seek [her] presence. The right of confrontation
may not be dispensed with so lightly."
[
Footnote 2/1]
Because I am convinced that the State failed to lay a proper
foundation for the admission of Anita Isaacs' preliminary hearing
testimony, I have no occasion to consider whether that testimony
had in fact been subjected to full and effective adverse
questioning and whether, even conceding the adequacy of the prior
cross-examination, the significant differences in the nature and
objectives of the preliminary hearing and the trial preclude
substituting confrontation at the former proceeding for the
constitutional requirement of confrontation at the latter.
See
California v. Green, 399 U. S. 149,
399 U. S.
195-203 (1970) (BRENNAN, J., dissenting).
[
Footnote 2/2]
"In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him."
[
Footnote 2/3]
The five subpoenas, all of which were issued to Anita at her
parents' address, showed that returns were made on November 3 and
4, 1975, December 10, 1975, February 3, 1976, and February 25,
1976, respectively. During the course of the
voir dire of
Anita's mother, the prosecutor indicated that, sometime in
November, 1975, the Isaacs had told him that Anita had left home.
See Tr.197;
ante at
448 U. S.
75.
[
Footnote 2/4]
In attempting to distinguish this case from
Barber v.
Page, 390 U. S. 719
(1968), and demonstrate the reasonableness of the State's conduct,
the Court states that "there was no assurance that [Anita] would be
found in a place from which she could be forced to return to Ohio."
Ante at
448 U. S. 77.
Once located, however, it is extremely unlikely that Anita could
have resisted the State's efforts to secure her return. The Uniform
Act to Secure the Attendance of Witnesses from Without a State in
Criminal Proceedings enables prosecuting authorities in one State
to obtain an order from a court in another State compelling the
witness' appearance to testify in court in the first State. The
Uniform Act has been adopted in the District of Columbia, the
Panama Canal Zone, Puerto Rico, the Virgin Islands, and every State
in the Union except Alabama. 11 U.L.A. 1 (Supp. 1980).
[
Footnote 2/5]
The Court of Appeals of Ohio expressed some doubt as to whether
Mrs Isaacs had been totally forthcoming in professing no knowledge
of the whereabouts of her daughter, who had been linked to
respondent's criminal involvements and who, in Mrs. Isaacs'
words,
"wants to make her own way, and forget all the unpleasantness
that happened here, and prove something to herself and to us, and
to think about her future and forget her past."
Tr.195-196.
See App. 5-6. These reservations about the
candidness of Mrs. Isaacs' testimony provide yet another reason why
the State was not justified in relying solely on the Isaacs'
representations to establish Anita's unavailability.