Ohio v. Roberts
448 U.S. 56 (1980)

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.


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 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 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. 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. 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 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....

The Supreme Court of Ohio, by a 4-3 vote, affirmed, but did so on other grounds. It first held that the Court of Appeals had erred in concluding that Anita was not unavailable....

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, and citing the dissenting opinion in California v. Green, 399 U.S. 149, 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.... 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.' "...

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.

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 107.... "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." Mattox v. United States, 156 U.S., at 244. 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 155, and "stem from the same roots," Dutton v. Evans, 400 U.S. 74, 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.


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.


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, and 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." 399 U.S., at 165.

These factors, the Court concluded, provided all that the Sixth Amendment demands: "substantial compliance with the purposes behind the confrontation requirement." Id., at 166.

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. Thus, Mr. Justice Brennan, writing in dissent, could conclude only that "[p]erhaps" "the mere opportunity for face-to-face encounter [is] sufficient."

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.


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." 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 the defendant 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 the defendant. 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," Green, 399 U.S., at 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.

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 165....

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." ' " [Mancusi v. Stubbs, 408 U.S. 204, 216 (1972).]


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....

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....

The judgment of the Supreme Court of Ohio is reversed....

Which approach to the confrontation clause does the Court follow in Roberts? Are the "necessity" and "reliability" justifications for the use of hearsay evidence in criminal cases complementary or contradictory?

Justice Blackmun says, "Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." With this single stroke Blackmun provides the key to how the Supreme Court can meet the challenge of explaining the constitutionality of the various hearsay exceptions, all of which can be used to deny criminal defendants the right of cross-examination. The Court will simply "presume" that the evidence admitted pursuant to the exceptions is reliable; hence, there is no need to cross-examine the declarant. This may not be intellectually satisfying but it is surely effective. Wigmore's nonsense will carry the day.

But note how Blackmun deals with "availability." He says, "the Confrontation Clause normally requires a showing that [the declarant] is unavailable." Isn't this the availability approach that Harlan toyed with in Green and then rejected a year later? Does Blackmun intend to wipe out the various hearsay exceptions that do not require a showing of unavailability, that is, all of the Rule 803 exceptions?

What strategic problems at the preliminary hearing does Roberts raise for defense counsel?


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