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
Between November 1975 and March 1976, five subpoenas for four different trial dates
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),
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
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, 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
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, 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).
We granted certiorari to consider these important issues under the Confrontation Clause. 441 U.S. 904 (1979).
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).
The Sixth Amendment's Confrontation Clause, made applicable to the States through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403-405 (1965); Davis v. Alaska, 415 U.S. 308, 315 (1974), provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
The historical evidence leaves little doubt, however, that the Clause was intended to exclude some hearsay. See California v. Green, 399 U. S., at 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,
These means of testing accuracy are so important that the absence of proper confrontation at trial "calls into question the ultimate `integrity of the fact-finding process.'" Chambers v. Mississippi, 410 U.S. 284, 295 (1973), quoting Berger v. California, 393 U.S. 314, 315 (1969).
The Court, however, has recognized that competing interests, if "closely examined," Chambers v. Mississippi, 410 U. S., at 295, may warrant dispensing with confrontation at trial. See Mattox v. United States, 156 U. S., at 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, 107 (1934); California v. Green, 399 U. S., at 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
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 161-162, 165, 167, n. 16.
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. The principle recently was formulated in Mancusi v. Stubbs:
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.
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
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, 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 725-726;
These factors, the Court concluded, provided all that the Sixth Amendment demands: "substantial compliance with the purposes behind the confrontation requirement." Id., at 166.
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. 1185, 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.
Counsel's questioning clearly partook of cross-examination as a matter of form. His presentation was replete with leading questions,
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 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.
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
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 216.
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.
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 724-725 (emphasis added). Accord, Mancusi v. Stubbs, supra; California v. Green, 399 U. S., at 161-162, 165, 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 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
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,
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,
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.
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.
Despite the literal language of the Sixth Amendment,
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.
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 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 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, 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.
In sum, what the Court said in Barber v. Page, 390 U. S., at 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."
Steven M. Cox filed a brief for the Ohio Public Defenders Association as amicus curiae urging affirmance.
"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."
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 , p. 800-10 (1979). See also Note, 54 Iowa L. Rev. 360, 365 (1968). Second, it "insures that the witness will give his statements 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 158.
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 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 186, n. 20).
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 a new is heightened by the Court's implicit prior rejection of principal alternative proposals, see Dutton v. Evans, 400 U. S., at 93-100 (concurring opinion), and California v. Green, 399 U. S., at 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.
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 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 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).
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 ("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").