Facts of the Case
On January 7, 1975, police arrested Herschel Roberts in Lake County, Ohio. Roberts was charged with forgery of a check in the name of Bernard Isaacs and of possessing stolen credit cards belonging to Amy Isaacs. At the preliminary hearing on January 10, Roberts’ lawyer called the Isaacs’ daughter, Anita, as a witness to testify that she knew Roberts and allowed him to use her apartment while she was away. The attorney attempted to elicit testimony from Anita that she gave Roberts the checks and credit cards without telling him that she did not have permission to do so. Ms. Isaacs would not admit to these actions, and Roberts’ attorney did not ask the court to declare her a hostile witness or place her on cross-examination. When Ms. Isaacs failed to respond to five subpoenas to appear at Roberts’ subsequent criminal trial, the state entered the transcript of her earlier testimony into evidence, as allowed by an Ohio Statute.
After being convicted by the trial court, Roberts appealed on the grounds that the admission of the prior testimony violated the Confrontation Clause of the Sixth Amendment. The Ohio Court of Appeals reversed the conviction and the Ohio Supreme Court affirmed.
Questions
Does the introduction into evidence of prior testimony of a witness who had not been cross-examined violate the Sixth Amendment?
Conclusions
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No. Justice Blackmun delivered the opinion of the 6-3 majority. The Court held that the purpose of the Confrontation Clause was to restrict the admission of unreliable hearsay into evidence. Generally, face-to-face confrontation is preferred as it allows the accused to probe the memory of the witness and allows the jury to take the demeanor of the witness into account when assessing the reliability of the testimony. The Court held that the opportunity for face-to-face interaction with, and cross-examination of, the witness at the previous hearing satisfied the requirements of the Confrontation Clause for the later trial. Although Ms. Isaacs was not officially cross-examined, the questions she answered had the proper form and intent to satisfy the purpose of cross-examination and establish the reliability of the testimony. The Court also held that a witness may be declared officially unavailable if a good-faith effort was made to locate her, as was the case with Ms. Isaacs.
Justice William J. Brennan, Jr. wrote a dissenting opinion and argued that the state did not meet its burden to show a diligent effort to locate Ms. Isaacs. The state sent subpoenas to the home of Ms. Isaacs’ parents, although there was evidence that she no longer resided there, and made no further effort to locate her new residence. Without evidence of a diligent effort to locate the witness, the requirements of the Confrontation Clause could not be circumvented. Justice Thurgood Marshall and Justice John Paul Stevens joined the dissent.