Petitioners Brief — Ohio v. Roberts

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

October Term, 1978

No. 78-756

STATE OF OHIO,

Petitioner,

vs.

HERSCHEL ROBERTS,

Respondent.

BRIEF OF PETITIONER

JOHN E. SHOOP

Prosecuting Attorney for the State

of Ohio

Lake County Court House

Painesville, Ohio 44077

(216) 352-6281

Attorney for Petitioner

Marvin R. PLAsco

7556 Mentor Avenue

Mentor, Ohio 44060

(216) 255-9128

Attorney for Respondent

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

eo

TABLE OF CONTENTS

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JURISDICTIONAL STATEMENT. .....00...........sseceeeeeseeees 1

CONSTITUTIONAL AND STATUTCRY PROVI-

cen hclnpnsipsebenanaigieedsisansesncunetnenscesnees 2

QUESTION PRESENTED FOR REVIEW ..................... 2

STATEMENT GF THE CASES ...W.2..n.......000:-.cccrcsccscccnecescee 3

SOURED COE FURUTUBEIEING, -0...2.....ccncsscscnsscessossssesenscccsnee 6

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I shh sesitisnsiienck:toslissaaeueniivqanncheahinesnnseinsisesionianee 49

TABLE OF AUTHORITIES

Cases

Barber v. Page, 390 U.S. 719 (1968) ........ 15, 16, 17, 19, 20, 23,

24, 27, 28, 29, 30, 32, 34, 35, 36, 39, 40, 46

California v. Green, 399 U.S. 149 (1970) ...... 17, 18, 19, 22, 23,

25, 28, 29, 34, 35, 36, 40, 43

Davis v. Alaska, 415 U.S. 308 (1974) -20......ceeeeeeeeeeeeeeees 43

Dutton v. Evans, 400 U.S. 74 (1970) 21, 23, 25, 35

Estelle v. Williams, 425 U.S. 501 (1976) 45

Gerstein v. Pugh, 420 U.S. 103 (1975) 42, 43

Havey v. Kropp, 458 F.2d 1054 (6th Cir., 1972) ............ 44

Henry v. Mississippi, 379 U.S. 451 45

Mancusi v. Stubbs, 408 U.S. 204 (1972) .................... 22, 25, 35

Lancaster v. Green, 175 Ohio St. 203, 192 N.E.2d 776

(1963) lin a 33

Mattox v. United States, 156 U.S. 237 (1895) ........ 10, 14, 19,

24, 35, 38

Motes v. United States, 178 U.S. 458 (1900) ....12, 20, 24, 36

II

Pointer v. Texas, 380 U.S. 400 (1965) ................ 13, 14, 15, 24,

29, 36, 40, 43

Reynolds v. United States, 98 U.S. 145 (1879) ....10, 19, 23, 35

Smith. v. Illinois, 390 U.S. 129 (1968)... eeeseeeeeeee 43

State v. Minneker, 27 Ohio St. 2d 155, 271 N.E.2d 821

IIE Sccsismnidhsoetdh csi leninsiRscuiiignsiehaiaieeselipesndidiaegbateoapineicsiiatedh 46

State v. Parrott, 27 Ohio St. 2d 205, 272 N.E.2d 112

RITE cas nchiiclcacidutesiadialonlaelcbstenicgllieiop iaiaehiheieketaaonies 46

State v. Ricardo Smith, 58 Ohio St. 2d 344 (1977) ........ 30

United States v. Allen, 409 F.2d 611 (10th Cir., 1969)

29, 45

Wainwright v. Sykes, 433 U.S. 72 -........-..cccececseseeseeeeeeeee 45

West v. Louisiana, 194 U.S. 258 (1904) ................ 12, 13, 14,

20, 24, 36, 39

Constitutional Provisions and Statutes

Ohio Const., Article IV, Section 5(B) ..................ccccecceeeee 40

NN a cccninesctsanbcnatinecstentnbancinves 40

I nw eetnnpeeamennisniclenbaneanie 41

a 2 sc cinealeeepalichinenteiatiiciuadaaneniatns 41

I I ID OD ican ccc cnscennnseninatnstnagenaleientiih 41

Ohio Crim. R. 16 | hetuhasedaaseigedeilanniaiatie 43

Ohio Crim R. 17(F) 42

I I I TE 6 nicsonincncanpdicannsiumniinaniiobansnnindidegeitindabenensnnih 42

RGAE et Oe OMENS Ae SIRE CMTE 42

I i 42

Ohio Rev. Code §2939.25, et seq., Uniform Act to Secure

the Attendance of Witnesses from Without a State

in Criminal Proceedings 16, 32

Ohio Rev. Code §2945.49 1, 2, 3-4, 26, 44

U. S. Const., Amendment IV ........... 42

U. S. Const., Amendment VI 1, 2, 3, 6, 8, 10,

14, 24, 27, 28, 34

It

Text

Westen, Confrontation and Compulsory Process: A

Unified Theory of Evidence for Criminal Cases, 91

Harvarp Law Review, No. 3, 561 at 599-601 (Jan-

RE, SIRE) ~ ecncccnrisniinsstnitenselicsticswetaicehlattannasabateiadmaniiaatiaiad

Supreme Court of the United States

October Term, 1978

No. 78-756

STATE OF OHIO,

Petitioner,

Vs.

HERSCHEL ROBERTS,

Respondent.

BRIEF OF PETITIONER

OPINIONS BELOW

The opinion and judgment of the court below giving

rise to this petition are as follows:

State of Ohio v. Roberts, 55 Ohio St. 2d 191, 378 N.E.

2d 492, 9 Ohio Op. 3d 143 (1978)

Said opinion may be found at page 15 of the petition.

JURISDICTIONAL STATEMENT

The opinion and judgment of the Supreme Court of

Ohio herein was rendered July 19, 1978. No motion for a

rehearing was filed.

This court has jurisdiction to review this matter upon

certiorari pursuant to 28 U.S.C., Section 1257(3), in that

the validity of Section 2945.49, Ohio Revised Code, has

been drawn into question on the ground that it is repug-

nant to the Sixth Amendment to the Constitution of the

United States.

Certiorari was granted herein on April 16, 1979.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Sixth Amendment, Constitution of the United States

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have been

committed, which district shall have been previously ascer-

tained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining wit-

nesses in his favor; and to have the Assistance of Counsel

for his defense.

Section 2945.49, Ohio Revised Code

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 rea-

son be produced at the trial, or whenever the witness has,

since giving such testimony, become incapacitated to tes-

tify. If such former testimony is contained within a bill

of exceptions, or authenticated transcript of such testi-

mony, it shall be proven by the bill of exceptions, or tran-

script, otherwise by other testimony.

_QUESTION PRESENTED FOR REVIEW

Where a witness, called by a criminal defendant at a

preliminary hearing, testifies in a manner incriminating

the defendant and was not cross-examined although there

was opportunity to do so, and that witness is later shown

3

to be unavailable to testify at the trial of the same defen-

dant on the same charge, does the confrontation clause of

the Sixth Amendment to the Constitution of the United

States preclude the State’s use of the witness’ recorded tes-

timony?

STATEMENT OF THE CASE

The facts underlying this case which are germane to

this appeal are as follows:

The defendant, Herschel Roberts, was arrested in the

City of Mentor, Lake County, Ohio, on January 7, 1975,

and charged with forgery. Later, additional charges of

receiving and concealing stolen property and possession of

heroin were brought.

Shortly after defendant’s arrest, a preliminary hearing

was held in which witnesses were called both by the State

of Ohio and by the defendant. Anita Isaacs, one of the

witnesses called on behalf of the defendant, testified in

such a manner that incriminated the defendant. Counsel

for defendant had, but did not exercise, an opportunity to

declare her a hostile witness and cross-examine. At the

conclusion of said preliminary hearing, the defendant was

bound over to the Lake County Common Pleas Court.

After indictment and arraignment, numerous trial

dates were set in Cummon Pleas Court. As a result of

continuances all occasioned on the part of the defendant

and his leaving the jurisdiction, however, trial was not held

until March 4, 1976.

During defendant’s March 4, 1976 trial, the State of

Ohio offered as evidence, and the Court admitted over

defendant’s objections, a transcript of Anita Isaacs’ prelimi-

nary hearing testimony, admissible pursuant to Section

4

2945.49 of the Ohio Revised Code, the witness Anita Isaacs

being.an unavailable witness pursuant to said Section.

Prior to the admission of the recorded preliminary

hearing testimony of Anita Isaacs, her mother, Amy Isaacs,

was questioned outside the hearing of the jury to determine

the whereabouts of Anita, the last time Anita had been

seen by her mother or father, and whether or not Amy

Isaacs had had any communication with her daughter

(App. 8-11). Amy Isaacs testified that she had not been

in contact with or had word of her daughter for 13 months

(App. 8) other than two telephone calls; one received from

Anita in which Anita dic not indicate her whereabouts

but indicated she was not in the State of Ohio (App. 11),

and another from a California social worker who indicated

that Anita was trying to obtain welfare in California (App.

10). Mrs. Isaacs also testified that neither her husband

nor any of her friends or relatives had been in any commu-

nication with Anita Isaacs, and that Anita’s whereabouts

were unknown (App. 9).

Counsel for defendant objected to the introduction of

the recorded testimony at App. 12-13, viz.:

“The Court: Are you acquainted with the testi-

mony about to be heard?

Mr. Plasco: Your Honor, for the record, I was

furnished the day before trial with a copy of a tran-

script that allegedly took place at a preliminary hear-

ing in the Mentor Municipal Court on January 10,

1975. I have a number of objections to the admissi-

bility of said transcript into evidence, or being read

to the jury in the present case at bar.

The Court: Proceed.

Mr. Plasco: Thank you, your Honor. To begin

with, I’m objecting to the constitutionality of Ohio

5

Revised Code Section 2945.49. The general purpose

of a preliminary hearing is a discovery tool where

the defense attorney attempts to get information out

so he can best represent his client. It is not to elimi-

nate hearsay. Many times hearsay evidence is inten-

tionally left in so the defense attorney can get more

information. * * *”

Defendant’s counsel continued his objections through

App. 14, specifically stating therein:

“Mr. Plasco: I further object your Honor, * * *

* * ss | @

For these reasons, we would strongly object to

the admissibility of the transcript as being prejudicial

to Mr. Roberts’ rights in violation of the U.S. Consti-

tution—confrontation of witnesses, allowing hearsay

testimony into evidence. Thank you.”

Although the trial judge did not specifically overrule

defendant’s objections, he did say, at App. 14:

“The Court: That’s the danger that you take

when you conduct a fishing expedition in a prelimi-

nary, instead of going by the new rules providing

for discovery. Proceed, Mr. Perez?

Mr. Perez: Proceed with argument, or proceed

with—

The Court: With your transcript.”

The defendant was found guilty by the jury on counts

of forgery, receiving stolen property, and possession of

heroin, and subsequently appealed the convictions to the

Lake County Court of Appeals on the question presented

herein. The Court of Appeals reversed the judgment of

the trial court on the grounds that the admission of the

preliminary hearing testimony violated the defendant’s

Sixth Amendment right to confrontation of witnesses, and

because the State had failed to make a showing of suf-

ficient eftort to locate the missing witness.

After allowing a motion filed by the State of Ohio

to certify the record, the Ohio Supreme Court affirmed

the judgment of the Court of Appeals. The Ohio Supreme

Court held, as a matter of state law, that the language

of the statute, “whenever the witness . . . cannot for any

reason be produced,” is satisfied by a showing that the

witness has disappeared; that her whereabouts were en-

tirely unknown.

But by a 4-3 majority, the Ohio Supreme Court af-

firmed the reversal of the conviction, holding that notwith-

standing several U. S. Supreme Court decisions contra, the

confrontation clause of the Sixth Amendment was offended

in this situation because the witness was not actually cross-

examined.

It is from the judgment of the Ohio Supreme Court

that the State of Ohio sought a writ of certiorari. This

Court granted certiorari on April 16, 1979.

SUMMARY OF ARGUMENT

The use of prior recorded testimony of a witness un-

available at trial is not repugnant to the confrontation

clause of the Sixth Amendment when certain indicia of

reliability are present. During the last hundred years this

court has established that recorded testimony bears such

indicia when taken at a judicial hearing when the accused

oA EY NE gape eee re ann ene =

7

has the opportunity to cross-examine the witness. The un-

availability of the witness must not be due to an act or

omission of the prosecution and the state bears a burden of

making a “good faith effort” to locate the witness and pro-

duce him at trial. The judicial hearing at which the testi-

mony is recorded must be “full-fledged,” with counsel

available to the accused, sworn and recorded testimony, and

an opportunity to cross-examine.

This court has stated that the mission of the Con-

frontation Clause is to assure the accuracy of the trial

process and give the trier of fact a basis for evaluating

the truth of the recorded testimony. Further, this court

has stated that a state court was wrong in ruling that an

opportunity to cross-examine at a preliminary hearing

failed to provide the indicia of reliability required to satisfy

the confrontation clause.

II

During his preliminary hearing, defendant, through*his

counsel, called a witness to testify on his behalf. To defen-

dant’s surprise, this witness refuted many of defendant's

contentions, and incriminated him. The trial on this mat-

ter did not commence for fourteen months and by that time

the witness could not be found. Pursuant to an Ohio

statute, the trial court allowed the use of the transcript of

the preliminary hearing testimony as evidence. Defendant

was subsequently convicted.

The Court of Appeals reversed the decisicn on the

grounds that a “good faith effort” to locate the witness

was lacking. The Ohio Supreme Court affirmed the ap-

pellate decision but on different grounds. It did not

find lack of a “good faith effort” but instead held that ab-

sent actual cross-examination, recorded preliminary hear-

ing testimony would not be admissible at trial.

SEE SES ARE ON TOOT | TE OST ee er Te ee

The Ohio high court was highly selective in the au-

thority it cited in support of its conclusions. It made much

of the dicta in one case and chose to ignore extensive other

dictum recognizing indicia of reliability present in the tes-

timony at issue. The dissent in the 4-3 decision accurately

stated the applicable law and characterized the majority

opinion as “highly subjective.” The opportunity to cross-

examine, the dissent accurately concluded, is the key to

whether the demands of the confrontation clause are met,

not whether actual cross-examination took place.

Ill

It is uncontroverted that the prosecution had no

knowledge of the whereabouts of the missing witness.

Any method for compelling attendance of a witness presup-

poses some knowledge of the witness’ whereabouts. In the

instant case, the witness’ mother testified that neither she

nor any member of the immediate family knew where the

witness was living. The state did all in its power to secure

attendance by issuing subpoenas to the last known resi-

dence. With absolutely no knowledge concerning the loca-

tion of the witness, any further act by the state would have

been in vain. The burden of making a good faith effort to

produce a witness was met by the state and this witness

clearly qualified as unavailable. Such unavailability es-

tablishes the necessary predicate for the introduction of

prior recorded testimony.

IV

The opportunity afforded to the defendant to confront

the witness at the preliminary hearing was sufficient to

satisfy the confrontation clause of the Sixth Amendment.

SS

9

As stated by this Court, the second prerequisite for in-

troduction of a prior statement is the presence of indicia of

reliability whether the statement—either in its content or

in the manner of its taking—which affords the trier of fact

a basis for evaluating truth.

This Court has outlined some of the indicia which

would permit the use of testimony recorded at a prelimi-

nary hearing to later be used at trial. The circumstances

of the preliminary hearing must closely approximate those

at trial. The witness must be under oath. The accused

must be represented by counsel and have an opportunity to

cross-examine. The proceedings must be properly recorded.

All of these indicia were present in the case at bar

and the requisite degree of reliability was assured.

A preliminary hearing in Ohio involves all the charac-

teristics of a typical trial and can accurately be charac-

terized as a “full-fledged” judicial hearing. Included is a

full right of and opportunity for cross-examination. Such

an opportunity afforded the defendant his right of confron-

tation.

Finally, it must be noted that the question of whether

there actually was cross-examination at the preliminary

hearing is open to dispute. Upon realizing the adverse na-

ture of the witness’ testimony, defense counsel began to use

tactics, such as leading and argumentative questions, which

are the hallmark of cross-examination. These tactics con-

tinued without objection by either the court or opposing

counsel. The totality of circumstances under which testi-

mony was taken at the preliminary hearing—including de

facto cross-examination—afforded the jury at trial a satis-

factory basis for evaluating the truth of the testimony, and

thus the testimony was not erroneously admitted at trial.

10

ARGUMENT

I. The Case Law

The question presented here is one which this Court

has recognized but never specifically decided in the several

cases in which use of prior recorded testimony in a criminal

trial has been discussed in light of the confrontation clause

of the Sixth Amendment.

One hundred years ago ii Reynolds v. United States,

this Court held that if a witness was wrongfully kept away

from trial by a criminal defendant, that witness’ testimony

taken at a former trial of the defendant for the same of-

fense may be used without offending the confrontation

clause.

Sixteen years later, Mattox v. United States this Court

considered the case of a murderer convicted not just once,

but twice after the first conviction was reversed on appeal.

Between the first and second trials two witnesses had

died, and the reporter’s notes of the testimony of the two

witnesses at the first trial were introduced at the second

trial. In the second round of appeals, Mattox claimed such

use of the prior recorded testimony violated his confronta-

tion clause rights, a claim rejected by this Court, which

commented:

The primary object of the constitutional provision

in question was to prevent depositions or ex parte af-

fidavits, such as were sometimes admitted in civil

cases, being used against the prisoner in lieu of a per-

1. 98 U.S. 145 (1879).

2. 156 U.S. 237 (1895).

3. At 156 U.S. 242-244.

——— —,-- —

—_ aaa

Il

sonal examination and cross-examination of the wit-

ness, 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. There is doubtless reason for saying that the

accused should never lose the benefit of any of these

safeguards even by the death of the witness; and that,

if notes of his testimony are permitted to be read, he

is deprived of the advantage of that personal presence

of the witness before the jury which the law has de-

signed for his protection. But general rules of this

kind, however beneficent in their operation and valu-

able to the accused, must occasionally give way to con-

siderations of public policy and the necessities of the

case. To say that a criminal, after having once been

convicted by the testimony of a certain witness, should

go scot free simply because death has closed the mouth

of that witness, would be carrying his constitutional

protection to an unwarrantable extent. The law in

its wisdom declares that the rights of the public shall

not be wholly sacrificed in order that an incidental ben-

efit may be preserved to the accused.

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 subject-

ing him to the ordeal of a cross-examination. This, the

law says, he shall under no circumstances be deprived

of, and many of the very cases which hold testimony

such as this to be admissible also hold that not the

substance of his testimony only, but the very words

of the witness, shall be proven.

12

In 1900, in Motes v. United States‘, this Court first

considered whether testimony taken and recorded at a

preliminary examination could be used at the later trial of

the same case when the witness became unavailable.

This Court noted, with approval, the words of a con-

temporary scholar:® ;

In his Treatise on Constitutional Limitations,

Cooley, after observing that the testimony for the Peo-

ple in criminal cases can only, as a general rule, be

given by witnesses in court, at the trial, says: “If the

witness was sworn before the examining magistrate,

or before a coroner, and the accused had an opportunity

then to cross-examine him, or if there were a former

trial on which he was sworn, it seems allowable to

make use of his deposition, or of the minutes of his

examination, if the witness has since deceased, or is

insane, or sick and unable to testify, or has been sum-

moned but appears to have been kept away by the

opposite party.”

The Court noted, however, that the absence of the

witness was due to the gross negligence of the government,

and therefore “the case is not within any of the recognized

exceptions to the general rule prescribed in the constitu-

tion.””®

Four years after Motes, this Court completed the turn-

of-the-century round of confrontation clause cases with

West v. Louisiana."

178 U.S. 458 (1900).

At 178 U.S. 472.

At 178 U.S. 474.

194 U.S. 258 (1904).

=~? - &

13

West was not a confrontation clause case, but rather

a due process case. This Court specifically declined to ad-

dress the: issue of compliance with the confrontation clause

when preliminary examination testimony was used at a

state criminal trial when the witness had permanently ab-

sented himself from the state.®

Nevertheless, West is both instructive and pertinent to

the inquiry here.

The Court rejected West’s due process claim,® com-

menting:

The accused has, as held by the state court in such

case, been once confronted with the witness, and has

had opportunity to cross-examine him, and it seems

reasonable that when the state cannot procure the at-

tendance of the witness at the trial, and he is a non-

resident and is permanently beyond the jurisdiction of

the state, that his deposition might be read equally as

well as when his attendance could not be enforced

because of death or of illness, or his evidence given by

reason of insanity.

Important in the analysis of the question was whether

the common law permitted use of prior testimony merely

because of the nonresidence or permanent absence of the

witness. While this court concluded that nonresidence or

permanent absence was not one of the reasons allowing use

8. The Court noted, at 194 U.S. 264:

“As the 6th Amendment does not apply to state courts,

the question as to what is required under its provisions in

order to reserve the right to be confronted with the witness

is eliminated from any inquiry by the court in this case.”

Not until Pointer v. Texas, 380 U.S. 400 (1965), discussed infra,

did this court hold the confrontation clause applicable to the

States via the Fourteenth Amendment.

9. Id.

a Se iaapeine at eed-eaele-tna eres reer? Ferierd ae tea dene

14

of prior recorded testimony at common law,?° it found no

impediment in the due process clause to the state making a

change in its own law to accommodate such use,"

A number of years passed before this Court directly

dealt with the issue again. But Pointer v. Texas"? pro-

vided the starting point for the last 19 years’ litigation on

the issue.

Bob Granville Pointer had been convicted of robbery

after a trial in which the prior-recorded testimony taken

at a preliminary hearing was offered against him. The

witness whose testimony was introduced via the transcript

had moved out of Texas and had no intention of returning.

This Court held, first, that the confrontation clause of

the Sixth Amendment was applicable to the states,"* over-

ruling that portion of its holding in West.

But more importantly to the inquiry here, this Court

held that Pointer was denied his right to confront the

witness at the preliminary hearing because he was un-

represented by counsel and was not afforded the opportu-

nity to cross-examine.

“As has been pointed out,” this Court observed, “a

major reason underlying the constitutional confrontation

rule is to give a defendant charged with a crime an Op-

portunity to cross-examine the witnesses against him.”

(Emphasis added)

The analysis in Pointer then focused on Mattox,"*

where the transcribed testimony from a former trial, where

10. At 194 U.S. 262,

1l. At 197 U.S. 263.

12. 380 U.S. 400 (1965).

13. At 380 US. 406.

14. At 380 U.S. 406, 407.

15. 156 U.S. 237.

15

the opportunity to confront existed, was constitutionally

admissible at later trial. But at Pointer’s preliminary hear-

ing such opportunity to cross-examine did not exist. The

lack of such opportunity was crucial, as this Court ob-

served in conclusion: '*

The case before us would be quite a different one

had (the witness’) statement been taken at a full-

fledged hearing at which petitioner had been repre-

sented by counsel who had been given a complete and

adequate opportunity to cross-examine. Compare

Motes v. United States, supra, 178 U.S., at 474, 44 L.

Ed. at 1156. There are other analogous situations which

might not fall within the scope of the constitutional

rule requiring confrontation of witnesses. The case be-

fore us, however, does not present any situation like

those mentioned above or others analogous to them.

Because the transcript of (the witness’) statement of-

fered against petitioner at his trial had not been taken

at a time and under circumstances affording petitioner

through counsel an adequate opportunity to cross ex-

amine (the witness), its introduction in a federal court

in a criminal case against Pointer would have amounted

to denial of the privilege of confrontation guaranteed

by the Sixth Amendment. Since we hold that the

right of an accused to be confronted with the witnesses

against him must be determined by the same standards

whether the right is denied in a federal or state pro-

ceeding, it follows that use of the transcript to convict

petitioner denied him a constitutional right, and that

his conviction must be reversed.

The facts in Barber v. Page"* were similar to those in

Pointer in that the prior recorded testimony of an “un-

16. At 380 U.S. 407, 408.

17. 390 U.S. 719 (1968).

ELT ee CN NT nN nT een eae etn ee ee

16

available” preliminary hearing witness was introduced at

Barber’s trial. The facts differ in that (a) Barber's at-

torney had every opportunity to, fut did not, cross-examine

the missing witness at the prelinunary hearing, and (b) the

“unavailable” witness was in a known location (a federal

prison) but 225 miles from the situs of the trial, and was,

with minimal effort, actually “available” to the prosecu-

tion through legal process.'®

This latter difference was crucial in this Court’s anal-

ysis of the case. The utter lack of any effort whatever to

secure the witness’ presence at trial, when his where-

abouts were known, justified the holding that Barber was

denied his right of confrontation. This Court observed:

In short, a witness is not “unavailable” for pur-

poses of the foregoing exception to the confrontation

requirement unless the prosecutorial authorities have

made a good-faith effort to obtain his presence at

trial. The State made no such effort here, and, so far

as this record reveals, the sole reason why the wit-

ness was not present to testify in person was because

the State did not attempt to seek his presence. The

right of confrontation may not be dispensed with so

lightly.

The Court then asked, but left unanswered, a question

it must decide herein: whether opportunity to confront

at a preliminary hearing is, constitutionally, equivalent to

opportunity to confront at trial. It was observed: ”°

18. See note 4 at 390 U.S. 724, discussing the Uniform Act

to Secure the Attendance of Witnesses from Without a State in

Criminal Proceedings, and the common law writ of habeas corpus

ad testificandum. Neither of these remedies were available to

petitioner herein at respondent’s trial, as the whereabouts of

missing witness Anita Isaacs were entirely unknown.

19. At 390 U.S. 724-725.

20. At 390 U.S. 725-726.

-17

Moreover, we would reach the same result on

the facts of this case had petitioner’s counsel actually

cross-examined (the witness) at the preliminary hear-

ing. (Citing Motes.) The right to confrontation is

basically a trial right. It includes both the opportunity

to cross-examine and the occasion for the jury to weigh

the demeanor of the witness. A preliminary hearing

is ordinarily a much less searching exploration into the

merits of a case than a trial, simply because its func-

tion is the more limited one of determining whether

probable cause exists to hold the accused for trial.

While there may be some justification for holding that

the opportunity for cross-examination of a witness at

a preliminary hearing satisfies the demands of the

confrontation clause where the witness is shown to be

actually unavailable, this is not, as we have pointed

out, such a case. ,

If the language, above, stood alone, it is unlikely that

any prosecutor—including netitioner herein—would at-

tempt to assert that confrontation at a preliminary hearing

could be equivalent to confrontation at trial.

Yet the antagonism to the proposition so evident in

the language from Barber, quoted above, was as evidently

missing from the opinion in California v. Green," where

this Court said, as a prelude to the opinion:

The California Supreme Court construed the Con-

frontation Clause of the Sixth Amendment to require

the exclusion of (the witness’) prior testimony offered

in evidence to prove the State’s case against Green

because, in the court’s view, neither the right to cross-

examine (the witness) at the trial concerning his

current and prior testimony, nor the opportunity to

21. 399 U.S. 149 (1970).

18

cross-examine Porter at the preliminary hearing sat-

isfied the commands of the Confrontation Clause.

We think the California court was wrong on both

counts. (Emphasis added)

Green posed the precise question of whether the con-

frontation clause is offended by use of recorded prelim-

inary hearing testimony to impeach different testimony

by a prosecution witness at trial. It was clear that the

presence of the witness at trial met the commands of the

confrontation clause, and this Court so held,”? but it went

further, commenting: *

“We also think that (the witness’) preliminary

hearing testimony was admissible as far as the Con-

stitution is concerned wholly apart from the question

of whether respondent had an effective opportunity

for confrontation at the subsequent trial. For (the

witness’) statement at the preliminary hearing had

already been given under circumstances closely ap-

proximating those that surround the typical trial. (The

witness) was under oath; respondent was represented

by counsei=the same counsel in fact who later rep-

resented him at the trial; respondent had every op

portunity to cross-examine (the witness) as to his

statement; and the proceedings were conducted before

a judicial tribunal, equipped to provide a judicial

record of the hearings. Under these circumstances,

(the witness’) statement would, we think, have been

admissible at trial even in (the witness’) absence if

(the witness) had been actually unavailable, despite

good-faith efforts of the State to produce him. That

being the case, we do not think a different result

22. At 399 U.S. 164.

23. At 399 U.S. 165.

19

should follow where the witness is actually produced.”

(Emphasis added)

Thus, a conflict in dictum: antagonism to the use of

recorded preliminary hearing testimony in Barber, and ac-

ceptance two years later in Green. This conflict is one

which this Court must resolve herein.

The Court, however, will not be without some guid-

ance from its past decisions.

In Green,* this Court spoke of the “indicia of reli-

ability” which are the basis for the various exceptions to

the hearsay rule and which also form the basis for ex-

ceptions to the literal right of confrontation.*

Such indicia were noted in the early cases. In

Reynolds,* such indicia were found in the fact that testi-

mony was taken at another trial on the same charge, but

under a different indictment, at which the defendant was

present and had full opportunity to cross-examine.

In Mattox,” the indicia of reliability in a statement

given under oath were compared with those in a dying

declaration: *

A technical adherence to the letter of a constitu-

tional provision may occasionally be carried farther

than is necessary to the just protection of the accused,

24. At 399 U.S. 161-162.

25. Green also decided, at 399 U.S. 155-156, that the con-

frontation clause was not mere codification of common law heresay

rules, but that it was independent of such rules. Thus, evidence

admissible as an exception to hearsay rules may violate the con-

frontation. clause, and evidence which is constitutionally permis-

sible under the confrontation clause may be inadmissible as here-

say.

26. Supra, note 1.

27. Supra, note 2.

28. At 156 U.S. 243-244.

20

and farther than the safety of the public will warrant.

For instance, there could be nothing more directly

contrary to the letter of the provision in question

than the admission of dying declarations. They are

rarely made in the presence of the accused; they are

made without any opportunity for examination or

cross-examination; nor is the witness brought face to

face with the jury; yt from time immemorial they

have been treated as competent testimony, and no

one would have the hardihood at this day to question

their admissibility. They are admitted not in con-

formity with any general rule regarding the admis-

sion of testimony, but as an exception to such rules,

simply from the necessities of the case, and to pre-

vent a manifest failure of justice. As was said by

the Chief Justice when this case was here upon the

first writ of error, 146 U.S. 140, 152 (36: 917, 921),

the sense of impending death is presumed to remove

all temptation to falsehood, and to enforce as strict

an adherence to the truth as would the obligation of

an oath. If such declarations are admitted, because

made by a person then dead, under circumstances

which give his statements the same weight under

oath, there is equal if not greater reason for admitting

testimony of his statements which were made under

oath.

In Motes, where, as in Barber, the crucial issue was not

the reliability of the evidence but rather the negligence

of the goverment, the appropriate indicia were found,

again in testimony given at a prior judicial hearing, under

oath, and subject to cross-examination by defendant’s

counsel.

And in West,” the question was whether due process

permitted mere absence from the jurisdiction to justify

29. Supra, note 7.

21

the use of prior recorded testimony. This Court resolved

that issue in favor of the state, but noted*®® the familiar

indicia: a prior judicial hearing, the defendant present,

and an opportunity to cross-examine by counsel.

Thus, by the time of the modern cases, “indicia of

reliability” had become the touchstone of the test of ad-

missibility of evidence which conformed to the confronta-

tion clause. Further, certain familiar factors—the circum-

stances of a judicial hearing—had become ingrained in

the common law as such indicia.

Then came Dutton v. Evans,*! in which the testimony

offered had not been taken at a judicial tribunal with the

aforementioned indicia of reliability.

Evans had been convicted of murder after a trial in

which eyewitnesses described in detail the execution-style

killings of three police officers. But the testimony also

included a statement, related by a former federal prisoner,

that while in prison one of Evans’ co-conspirators impli-

cated Evans in the murders. Evans, in a habeas corpus

proceeding, alleged a violation of the confrontation clause.

Certainly, the statement made in prison was not made

in a judicial setting and thus did not fit the familiar indicia.

Yet the plurality of this Court*? found no violation of the

confrontation clause because the statement bore other

indicia of reliability related to content and circumstances.

Thus, Evans teaches that the familiar judicial-setting

indicia of reliability are not the only indicia which may

provide a basis for an exception to literal enforcement of

the confrontation clause. Other indicia—provided they

show the basic purpose of the clause will be met—will

30. At 194 U.S. 264.

31. 400 U.S. 74 (1970).

32. At 400 U.S. 89.

22

allow relaxation of its strict commands in the interests of

justice.

As the plurality noted:*

The decisions of this Court make it clear that the

mission of the Confrontation Clause is to advance a

practical concern for the accuracy of the truth-de-

termining process in criminal trials by assuring that

‘the trier of fact (has) a satisfactory basis for evaluat-

ing the truth of the prior statement.’

Finally came Mancusi v. Stubbs,** the last of the con-

frontation cases to be discussed herein. Stubbs was con-

victed of a felony in a New York state court, which used an

earlier Tennessee murder and kidnapping conviction as a

predicate for sentencing him to an enhanced prison term

as a second offender. The Tennessee conviction was the

result of a second trial (an earlier conviction having been

vacated via habeas corpus on the ground of inadequate as-

sistance of counsel).

By the time of the second trial, one of the victims of

the kidnapping, a crucial prosecution witness, had become

a permanent resident of Sweden. The transcript of that

witness’ testimony at the first trial was introduced at the

second trial, setting the stage for a second habeas corpus

proceeding on the issue of confrontation.

The second habeas corpus action reached this court,

which held the opportunity of cross-examination afforded

at the first trial provided sufficient indicia of reliability

to allow the trier of fact in the second trial a satisfactory

basis for evaluating the truth of the prior statement. This

court also held that the Tennessee Court could have, and

33. Id., quoting Green, 399 U.S. at 161.

34. 408 U.S. 204 (1972).

23

did find the witness was unavailable. Thus, the use of

the transcript at the second Tennessee trial did not offend

the confrontation clause, and the murder-kidnap conviction

formed a valid basis for the more severe sentence imposed

by the New York Court.

After reviewing Barber, Green, and Evans, this court

summarized: *

It is clear from these statements, and from numer-

ous prior decisions of this court, that even though the

witness be unavailable his prior testimony must bear

some of these ‘indicia of reliability’ referred to in Dut-

ton.

The focus then turned to whether such indicia could

be found in the transcript taken at the first trial. This

court found such indicia: **

Since there was an adequate opportunity to cross-

examine (the witness) at the first trial, and counsel

for Stubbs availed himself of that opportunity, the

transcript of (the witness’) testimony at the first trial

bore sufficient “indicia of reliability” and afforded “The

trier of fact a satisfactory basis for evaluating the truth

of the prior statement.” (Citing Dutton)

It was the case law discussed above which was avail-

able to the Ohio Supreme Court when it reached the de-

cision appealed from herein. In summary:

In Reynolds,” a transcript of testimony taken at a trial

was held admissible at a second trial where the witness

was kept away by the defendant.

35. At 408 U.S. 213.

36. At 408 US. 216.

37. Supra, note 1.

24

In Mattoz,* a transcript of testimony taken at a trial

was held admissible at a second trial where the witness

had died.

In Motes,* the court noted the general acceptance of

transcripts taken at a preliminary hearing where the wit-

ness was unavailable, but held that because the unavail-

ability of the witness was entirely the fault of the govern-

ment, that the use of the transcript offended the con-

frontation clause.

In West, a due process case, this court held a tran-

script of preliminary hearing testimony could be used at

a state criminal trial when a witness had permanently

absented himself from the state and was beyond reach

of its process.

More than half a century later, in Pointer,“ this court

extended the protection of the confrontation clause to state

criminal defendants, then considered whether a transcript

of preliminary hearing testimony could be used at trial

when the witness had moved out of the state. Because

Pointer had no opportunity to confront or cross-examine

the witness at the preliminary hearing, it was held, no

right of confrontation was afforded and Pointer was thus

denied the Sixth Amendment right.

In Barber, the absolute failure of the prosecution to

attempt to secure the presence of witness known to be

incarcerated only 225 miles from the trial site was the basis

for holding that Barber had been denied his right of con-

38. Supra, note 2,

39. Supra, note 4,

40. Supra, note 7.

41. Supra, note 12.

42. Supra, note 17.

25

frontation. But, in dictum, the court commented* in a

manner antagonistic to the concept that opportunity to

cross examine at a preliminary hearing will satisfy the

confrontation clause where the witness is unavailable at

trial.

Such antagonism was not evident in Green, where

preliminary hearing testimony was held to be properly

used in extensively impeaching a prosecution witness who

had “forgotten” crucial details of a drug deal at trial.

Green also categorized the judicial nature of the preliminary

hearing as “indicia of reliability’ which permitted use

of the prior recorded testimony.

In Evans,** the plurality held a statement made in a

non-judicial setting may be used at trial without violating

the confrontation clause provided it bears some indicia

of reliability based on other than the traditional “judicial

setting” factors.

And in Stubbs,** indicia of reliability were found

where testimony taken at a trial—a judicial setting—was

introduced at a second trial after the witness had moved

out of the country.

II. The Case Below

A brief restatement of the facts may be helpful here.‘

Herschel Roberts was arrested by the Mentor, Ohio Police

Department on January 7, 1975, and charged with forging

43. Supra, note 20.

44. Supra, note 21.

45. Supra, note 31.

46. Supra, note 34.

47. A more extensive recitation of the facts summarized

here may be found in the opinion of the Supreme Court of Ohio,

in the Petition, at 15-18.

26

a check in the name of Bernard Isaacs, and with receiving

other property, namely, a number of credit cards belonging

to Mr. Isaacs and his wife, Amy.

On January 10, 1975, Roberts was brought before the

Mentor Municipal Court for a preliminary hearing. Anita

Isaacs, daughter of the victims, was called by the defen-

dant to testify in his behalf. She surprised counsel by

refuting Roberts’ contentions that she, Anita, had been

living with Roberts and had given him the check and

credit cards at issue.

After the hearing, the Municipal Court found probable

cause to believe a crime had been committed and that

Roberts was guilty, and bound him over to the Lake

County Grand Jury. In due course he was indicted, but

because of extensive delays caused by Roberts, trial did

not commence until March 4, 1976.

By that time, Anita could not be found. Her mother

testified,“ in a hearing outside the presence of the jury,

that Anita’s whereabouts were entirely unknown, that

Anita was probably outside the state of Ohio, and that

there was no way to contact Anita, even in an emergency.

Pursuant to a state statute” specifically permitting the

use of preliminary hearing testimony when the witness

becomes unavailable, the trial court admitted into evidence

48. App. 8-11.

49. Section 2945.49, Ohio Revised Code, 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 pro-

duced 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: ef exceptions, or

transcript, otherwise by other testimony.”

27

the transcript of the preliminary hearing testimony of

Anita Isaacs.

Roberts was subsequently convicted of the charges

against him,® and appealed.

The Court of Appeals for Lake County, Ohio reversed

the conviction, finding the state failed to make a showing

of sufficient effort to locate Anita Isaacs to constitute the

“good faith effort” required by Barber v. Page," and that

therefore Roberts was denied the right of confrontation

guaranteed by the Sixth Amendment.*

After allowing a motion for leave to appeal, the Su-

preme Court of Ohio affirmed the judgment of the Court

of Appeals, but on different grounds.

Roberts, the Ohio Supreme Court ruled in its 4-3

decision, was denied his confrontation right not because

the state failed to show a good faith effort,* but rather

because absent actual cross-examination, recorded prelim-

inary hearing testimony may not be introduced at trial."

The court reached the result by overemphasizing the

differences between a preliminary hearing and a trial in

Ohio, by ignoring the extensive examination of Anita

Isaacs by defense counsel at the preliminary hearing,"

50. Roberts was convicted of forgery, receiving stolen prop-

erty (the credit cards), second count of receiving stolen property

(silver items belonging to Mr. and Mrs. Isaacs) and possession of

heroin (a smali amount of which was found in his wallet). ,

51. 390 U.S. 719 (1968).

52. The opinion of the Court of Appeals is reproduced in the

Appendix, at 1-7.

53. The showing of unavailability will be discussed in greater

detail in Section III, infra.

54. See Petition, at 21-22.

wil 55. This matter will be extensively explored in Section IV,

infra.

56. Id.

28

and by selectively choosing which dictum in prior deci-

sions of this Court it would recognize as holding.

The Ohio Supreme Court admits®’ “the basic factual

issues—e.g. whether the defendant had stolen (sic)"* the

credit cards—were the same(,)” at the preliminary hearing

as at trial. Yet it made much of the concern this court

expressed in dictum in Barber regarding the “much less

searching exploration into the merits of a case” common

to preliminary hearings, while wholly ignoring the later

dictum in Green® which referred to the taking of testi-

mony in a traditional judicial setting as indicia of reliabil-

ity. Eventually, the Ohio Supreme Court decided that

Barber “requires” the rule it fashioned," not because the

prosecution’s actions failed to meet the “good faith” effort

test announced in Barber, not because a preliminary hear-

ing is a different kind of judicial hearing, but rather be-

cause Barber also held a lack of cross-examination at a

preliminary hearing does not constitute a waiver of that

right at trial!®

57. Petition, at 21.

58. No allegation was ever made that Herschel Roberts had

stolen any of the items belonging to Bernard Isaacs, and Roberts

was not charged with the burglary. Any supposition that Roberts

was, in fact, the burglar, would be mere conjecture. How Roberts

acquired the items in question is a mystery; yet it must be em-

phasized that the state is not required to prove the circumstances

of receipt of the items to sustain a conviction.

59. At 390 U.S. 725-726, quoted supra at 17.

60. At 399 U.S. 165, quoted supra at 18-19.

61. Petition, at 22.

62. Reliance on this language from Barber is perhaps the

most confusing part of the opinion, as the issue of waiver had

neither been briefed nor argued before that court. Indeed, the

State of Ohio has never contended, and does not now contend,

that Roberts waived any Sixth Amendment right. What is con-

tended, simply, is that under the facts, the commands of the Sixth

Amendment were satisfied.

29

The Ohio Supreme Court then proceeded to consider

Green, distinguishing its dictum away on the facts. While

the court could have distinguished Green because the wit-

ness was available at trial, it chose instead to characterize

the preliminary hearing in Green as “atypical in that the

witness’ story * * * was subject to extensive cross-exam-

ination... .”*

In his dissent, Justice, and now Chief Justice Cele-

brezze was obviously puzzled by the approach taken by

the majority, commenting: ‘This rather incongruous re-

sult is reached by indulgence in conjecture relative to

the trial tactics of defense counsel, and is supported only

by the highly subjective opinion that ‘* * * The mere

opportunity to cross-examine at a preliminary hearing can

not be said to afford confrontation for purposes of the

triai,’™

The dissent summarized the dictum of Barber, Green,

and Pointer ignored or distinguished by the majority, then

proceeded to conclude with a focus on the majority’s

emphasis of trial tactics as a reason for its holding. The

dissent concluded:® ‘(t)he extent of cross-examination

whether at a preliminary hearing or at a trial, is a trial

tactic. The manner of use of that trial tactic does not

create a constitutional right.”

63. See Petition, at 24. As we shall see in Section IV, infra,

the examination of witness Anita Isaacs by defendant’s counsel

was not only extensive, unimpeded, and thorough, but at times

included leading and argumentative questions which are the hall-

mark of cross-examination. Thus, the assertion by the Ohio Su-

preme Court, Petition at 24, that “The witness (Anita Isaacs)

was never cross-examined,” may be correct as a matter of tech-

nicality, but is surely incorrect as a matter of fact.

64. See Petition, at 25.

65. See Petition at 26, quoting United States v. Allen, 409

F.2d 611, 613 (10th Cir., 1969).

30

Thus, the stage was set for this court to grant cer-

tiorari and review the “highly subjective” opinion of a

bare majority of the Ohio Supreme Court.”

Ill. The Unavailable Witness

It is firmly established and beyond question at this

juncture that a necessary predicate to the introduction

of any prior recorded testimony at a criminal trial is the

unavailability of the witness. Since Barber v. Page,® it

can also not be doubted that the mere absence of the wit-

ness from the jurisdiction will not suffice to establish

that predicate; that the state must show both that the wit-

ness was actually unavailable and that it made a “good

faith” effort to locate the witness and bring such a wit-

ness before a court.

And while the issues of whether Anita Isaacs was, in

fact, unavailable, and whether the state made a good-faith

66. On June 13, 1979, the Ohio Supreme Court relied on its

decision in the case herein in State v. Ricardo Smith, to be re-

ported at 58 Ohio St. 2d 344. In Smith, the Ohio Court held, in a

Per Curiam opinion: “Thus, the Roberts rule includes preclusion

of an unavailable witness’ testimony at the preliminary hearing

where the record shows that the witness was cross-examined only

briefly and ineffectively.”

As in Roberts, Smith produced a sharp split in the Ohio Su-

preme Court, with the opinion agreed to by only a bare 4-3 ma-

jority, the dissenters citing the dissent in Roberts. Of special

import is nature of the split on the Court. Former Chief Justice

O’Neil, author of the Roberts opinion, died in October, 1978, and

was replaced by Justice Celebrezze. Justice Holmes was elected

to the bench at the November, 1978 election.

In Smith, Justice Holmes joined the dissent. Justice Locher,

who had dissented in Roberts, did not sit in Smith, but was re-

placed, temporarily, by Judge McCormac of the state’s Tenth Ap-

pellate District. Judge McCormac joined the majority in Smith.

Thus, it appears that with the addition of Justice Holmes to

the bench, a majority of the Ohio Supreme Court has stated op-

position to the Roberts rule, and that the future of Roberts as

viable law in Ohio is in serious doubt even absent action by this

67. 390 U.S. 719 (1966).

A

31

effort to secure her presence are not the basic issues

herein, they do warrant limited discussion.

The Court of Appeals for Lake County was unsatisfied

wth the explanation in the record as to Anita Isaacs’ ab-

sence and devoted most of its opinion® to a discussion of

whether the state made a showing of “clear-cut unavail-

ability.”

The Ohio Supreme Court held the Court of Appeals

was in error on that point: ”°

In the instant cause the (defendant) argues that

the state failed to show a good-faith effort to produce

the witness in person, as required by the rule in

Barber. But in Barber, the government knew where

the absent witness was. In the instant cause, the rea-

son for the witness’ unavailability was not that she

was at some known location beyond the court’s power

of subpoena, but that her whereabouts were entirely

unknown; and it is recognized that a witness who has

disappeared from observation is unavailable for pur-

poses of the confrontation clause. Wigmore, supra,

215, Section 1405, and cases therein cited. As a matter

of state law, R.C. 2945.49, authorizing the use of prior

recorded testimony ‘whenever the witness * * * can-

not for any reason be produced,’ is broad enough to

cover instances where the witness has disappeared.

* * * *« *&

. we hold that in the present cause, the trial

judge could reasonably have concluded from Mrs.

68. App. 1-7. ‘

69. App. at 4.

70. See Petition, at 19, 20.

32

Isaacs’ voir dire testimony that due diligence could not

have procured the attendance of Anita Isaacs.

Therefore, the trial judge could properly hold

that the witness was unavailable to testify in person.

This conclusion as a matter of state law is also correct

as a matter of federal constitutional law.

As this court noted in Barber, if the state desires the

testimony of a witness who is incarcerated, and has knowl-

edge of the whereabouts of that person, it may seek writs

of habeas corpus ad testificandum or habeas corpus ad

prosequendum to produce that witness.”

For witnesses not in prison, this Court noted, the

Uniform Act to Secure the Attendance of Witnesses from

Without a State in Criminal Proceedings” provides a

means by which prosecuting authorities from one state

can obtain an order from a court in the state where the

witness is found directing the witness to appear in court

in the first state to testify. The state seeking the witness’

appearance must pay the witness a specified sum as a

travel allowance and compensation for his time.”

Yet one particular fact must be known about an out-

of-state witness before he can be summoned through the

Uniform Act: the location of said witness. As the Ohio

Supreme Court commented in a case where a convicted

71. 390 U.S. at 724.

72. The Uniform Act to Secure the Attendance of Witnesses

from Without a State in Criminal Proceedings has been adopted

in Ohio and forms Sections 2939.25, et seq. of the Ohio Revised

Code. Pursuant to its terms, adoption of the Act in Ohio allows

prosecutors or defendants to ask other states to compel the at-

tendance at trials in this state of witnesses known to be in other

states which have adopted the Act.

73. 390 U.S. at 723, note 4.

33

criminal sought a writ of habeas corpus on the grounds that

he was denied compulsory process: “

Inasmuch as a state’s process cannot extend be-

yond its borders, and thus, the state can not as a matter

of right compel the attendance of a witness beyond

its borders but can only procure such witnesses by

the voluntary co-operation of another state, clearly

the accused must be able to designate the witness

and his location with exactitude before any duty de-

volves on the court to initiate the complex judicial

process necessary under these acts to procure the at-

tendance of out-of-state witnesses. (Emphasis added)

Surely the State of Ohio could bear no lesser burden

than a criminal defendant. If a defendant must designate

the location of a desired witness with exactitude before

invoking the Uniform Act, so also must the state. Thus,

when the location of a witness is unknown, the Uniform

Act provides no tool to secure that witness’ presence.

The facts herein are uncontroverted that the state

had no knowledge of the whereabouts of the Anita Isaacs,

and further that even her immediate family had no such

~ knowledge.

The very persons who would most likely know where

the witness was—her parents—had no knowledge of her

whereabouts. How, then, was the State of Ohio to locate

her and produce her at trial?

It cannot be disputed that the State of Ohio did all

in its power to secure the presence of Anita Isaacs at

trial by issuing subpoenas to her last known residence in

the state. Other tools to secure the witness’ presence were

not used because without knowledge of her whereabouts,

74. Lancaster v. Green, 175 Ohio St. 203 at 205, 192 N.E.2d

776 (1963).

34

such tools would have been useless. And the law does not

mandate the doing of a vain act.

The test mandated by this Court in Barber and Green

was thus met by the State of Ohio in this case.

Any other standard would require that the State main-

tain constant surveillance of a State’s witness before trial,

or be barred from using prior recorded testimony. Any

other standard would require the State to mount cross-

country manhunts for witnesses who had exercised their

right to travel to distant portions of this country with

little more than a farewell.

The Ohio Supreme Court therefore did not decide the

issue of actual unavailability in conflict with the federal

standard established in Barber. The predicate for use of

prior recorded testimony was established, and the only

question remaining is thus one of whether the recorded tes-

timony introduced in Roberts’ trial bore sufficient indicia

of reliability to meet the commands of the Sixth Amend-

ment.

IV. The Prior-Recorded Testimony

We now turn ¢» the central issue in this case: whether

Herschel Roberts was denied his Sixth Amendment con-

frontation rights at trial by use of Anita Isaacs’ recorded

preliminary hearing testimony.

A. The opportunity afforded to cross-examine

Anita Isaacs at the preliminary hearing sat-

isfied the commands of the confrontation

clause.

In the early cases, reviewed in Section I, supra, it

became well established that recorded testimony taken at

a prior judicial-type hearing would be admissible at a

35.

federal criminal trial provided (a) The defendant was

present at the time the testimony was taken, (b) that he

was afforded the opportunity to cross-examine and (c)

the “unavailability” predicate was established. Until

Green, these factors stood alone as perhaps the only fac-

tors which would permit an exception to the strict observ-

ance of the confrontation clause.

But in Green, followed later in Dutton and Stubbs,

this court established that the judicial-setting factors are

only some of many possible “indicia of reliability” which

“afford the trier of fact a satisfactory basis for evaluating

the truth of the prior statement.”"*

It is submitted here that the opportunity afforded

Roberts to confront Anita Isaacs at the preliminary hearing

is indicia of reliability which, standing alone, afforded

the trier of fact with the basis it needed to evaluate the

truth of her statement.

It is true that in Barber, this court spoke in an antag-

onistic manner to such a proposal,” citing the “ordinarily

much less searching exploration of the case (at a prelim-

inary hearing) than at trial.”"* The Ohio Supreme Court

seized upon this dictum as it reached its decision.

Yet the comment in Barber is, itself, not consistent

with the dicta in the other confrontation cases. Reynolds”™

and Mattox® were, of course, cases where the recorded

75. The “unavailability” predicate, as has been discussed in

Section III, supra, was well established in this case.

76. Dutton, 400 U.S. at 88-89.

77. At 390 U.S. 725-726.

78. Id. 3

79. 98 U.S. 145 (1879).

80. 156 U.S. 237 (1895).

36

testimony was taken at a trial. Yet Motes* involved

approval of testimony taken at a preliminary hearing, as

did West." In Pointer v. Texas,® preliminary hearing

testimony was rejected, but with the proviso:™

The case before us would be quite a different

one had (the witness’) statement been taken at a

full-fledged hearing at which petitioner had been rep-

resented by counsel who had been given complete

and adequate opportunity to cross-examine.

Barber, of course, included language antagonistic to

the proposition advanced here. Still, this court was care-

ful to note:*

“. . . there may be some justification for holding

that the opportunity for cross-examination of a witness

at a preliminary hearing satisfies the demands of the

confrontation clause where the witness is shown to

be actually unavailable. . .”

In Green, of course, this Court set forth the indicia

in Green’s preliminary hearing which would permit the

recorded testimony to be used at trial:** The circum-

stances of the preliminary hearing closely approximated

those at trial. The witness was under oath. The defen-

dant was represented by counsel who had every opportu-

nity to cross-examine. Finally, the proceedings were

before a tribunal equipped to provide a judicial record

of the testimony.

81. 178 U.S. 458 (1900).

82. 194 U.S. 258 (1904).

83. 380 U.S. 400 (1965).

84. At 280 U.S. 407, 408.

85. At 390 U.S. 725-726.

86. At 399 US. 165.

ne

37

All of these indicia are preserit in the case herein.

Of course, the factors mentioned above do not become

indicia of reliability by simply mentioning them. They

are indicia because they do, in themselves, offer the trier

of fact the basis for evaluating the truth of what is pre-

‘sented.

The’ judicial record insures that the words presented

are precisely those used at the prior hearing. The presence

of counsel insures that an advocate will be present to

raise evidentiary objections—themselves designed to en-

sure reliability—and, if warranted, inquire of the witness

as to discrepancies in testimony or factors regarding cred-

ibility.

The judicial setting impresses the witness with the

importance of the proceeding and the oath cements that

impression into the witness’ mind. Finally, the opportu-

nity to cross-examine—the “great engine of truth”—exists,

not only to sift the facts from the falsity, but also to

provide the witness with no incentive to testify falsely

in the first instance.

The latter factor was ignored by the Ohio Supreme

Court in its decision herein. An extensive and vigorous

cross-examination of a witness, if conducted skillfully,

may indeed expose contradictions and weaknesses in the

witness’ testimony, thereby giving the trier of fact a basis

for determining the truth of the statement.

But the benefits of cross-examination guaranteed to

a criminal defendant by the confrontation clause do not

evaporate if no cross-examination actually occurs.

The prosecution witness does not know, during direct

examination, whether he will be cross-examined. He

does know, however, that the defense counsel has the

opportunity and likely will attempt to attack his story

38

and his credibility. Thus, the witness will have every

incentive to avoid the embarrassment (and possible crim-

inal charge for perjury) which would be the result of

discovery of false testimony during a probing cross-ex-

Thus, the mere availability of cross-examination pro-

vides much of the protection afforded by the actuality

of its use. It is this factor which provides the indicia

of reliability so frequently recognized in the cases dis-

cussed infra.

Indeed, the indicia of reliability within a statement

taken at a judicial hearing where the witness must face

the accused are stronger than the indicia in a dying

declaration, where, as noted in Mattox," the statements

are not made in the presence of the accused, are not sub-

ject to cross-examination, and are not made in court so

that the witness’ demeanor may be observed by the jury.

Yet, dying declarations have been admissible for centuries

even where they form the basis for a homicide case against

the accused. If dying declarations do not offend the con-

frontation clause, then certainly testimony taken at a

judicial hearing where the accused has had the opportu-

nity to confront and cross-examine the witness, should

be acceptable also.

As noted in Mattox:*

“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 cross-examination.

Thus, the law says, he shall under no circumstances

be deprived of .. .”

87. At 156 U.S. 243-244

88. Id.

39

We now turn to the objections to the proposition ad-

vanced here.

The first was stated succinctly by the Court of Ap-

peals for Lake County:® “This right of confrontation of

the absent witness, as a witness against him, did not

occur at trial.”

That premise—thai the right of confrontation is basi-

cally a trial right—is not incorrect. Indeed, in Barber,

the premise was stated in precisely those words.”

But it cannot be disputed at this juncture that the

rule quoted from Barber is not absolute. As stated in

Barber and echoed in all the other confrontation cases

discussed herein, the rule is that the confrontation clause

is a preferential rule which requires the State to produce

its witnesses in person when available. Where the wit-

ness is unavailable, the cases have taught us, the confron-

tation clause requires that testimony against the accused

be accepted in other forms only if the State has made a

good faith effort to secure the presence of the witness,

and if the testimony bears indicia of reliability.”

89. App. at 3.

90. At 390 U.S. 125.

91. Professor Peter Westen argues that the confrontation

clause mandates only that the State produce the witness in per-

son, if available. He suggests the remaining requirements set

forth in the cases—good faith effort and indicia of reliability—

are imposed not by the confrontation clause, but by the due

process clause. See Westen, Confrontation and Compulsory Pro-

cess: A Unified Theory of Evidence for Criminal Cases, 91 Har-

VARD LAW REVIEW, No. 3, 561 at 599-601 (January, 1978).

Acceptance of Professor Westen’s well-reasoned argument

by this court would give new significance to West v. Louisiana, 194

U.S. 258 (1904), wherein it was held that due process is not

denied-by the rule set forth at 13, supra, and proposed here

as applicable to the confrontation clause as well. Indeed, if Pro-

fessor Westen is correct, then West would be dispositive of the

question presented here, as the analysis in Section III, supra, es-

tablishes compliance with the confrontation clause in this case,

and the State has mei the demands of the due process clause as

established in West.

40

This much, at least, cannot be disputed at this junc-

ture: The right of confrontation, although basically a

trial right, is not absolutely a trial right. Where the

necessities of a case demand, the opportunity to confront

at a prior judicial hearing of the same cause has been

held to afford a criminal defendant the essentials of his

right to confront the witnesses against him. Thus, the

confrontation clause was not offended in this case merely

because the confrontation did not occur at trial.

The second objection to the proposition advanced here

is that although it is a judicial hearing, a preliminary

hearing is of a type different than a trial, with different

levels of proof. Opportunity for confrontation at this

level, the objection continues, cannot be said to afford

confrontation for purposes at trial.”

At this juncture, it may be helpful to examine the

nature of preliminary hearing in Ohio.®

The preliminary hearing in Ohio is a “full-fledged”

judicial hearing* under which the circumstances closely

approximate those surrounding a typical trial.*

As required by Ohio Crim. R. 5(B) (2):

(2) At the preliminary hearing the prosecuting

attorney may, but is not required to, state orally the

case for the state, and shall then proceed to examine

witnesses and introduce exhibits for the state. The

defendant and the judge have full right of cross-

92. See Barber v. Page 390 U.S. 719 at 725-726; Opinion of

the Ohio Supreme Court, Petition at 20-21.

93. Criminal procedure in Ohio is governed by the Ohio

Rules of Criminal Procedure, promulgated by the Supreme Court

and subject to veto by the legislature via a concurrent resolution

of disapproval. See Article IV, Section 5 (B), Ohio Constitution.

94. See Pointer, at 380 U.S. 407-408.

95. See Green, at 399 U.S. 165.

41

examination, and the defendant has the right of in-

spection of exhibits prior to their introduction. The

hearing shall be conducted under the rules of evidence

prevailing in criminal trials generally. (Emphasis

added)

At the conclusion of the state’s case, a defendant

may move for discharge for failure of proof and may offer

evidence on his own behalf.**

Upon conclusion of all the evidence and statement,

if any, of the accused, the examining judge may find

probable cause to believe the crime alleged or another

felony has been committed, that the defendant com-

mitted it, and bind the defendant over to the Court of

Common Pleas for action by the Grand Jury; find probable

cause to believe a misdemeanor has been committed and

that the defendant committed it, then hold the defendant

for trial at the lower court level; or discharge the de-

fendant.*"

But the Criminal Rule makes clear: 8

Any finding requiring the accused to stand trial

on any charge shall be based solely on the presence

of substantial credible evidence thereof. . . . (Empha-

sis added)

The accused has the right to be present at the pre-

liminary hearing” as well as all subsequent proceedings

96. Ohio Crim. R. 5(B) (3).

97. Ohio Crim. R. 5(B) (4).

98. Ohio Crim. R. 5(B) (5).

99. This requirement is implied from the language of Ohio

Crim. R. 5(B) (3), which reads, in part, “defendant .. . may offer

evidence on his own behalf,” and Crim. R. 5(B) (2), which reads

in part, “The defendant and judge have full right of cross-exam-

ination and the defendant has the right of inspection of exhibits

prior to their introduction.”

42

against him." He has the absolute right to counsel

unless waived’? when charged with a serious offense,

which would include any felony. He also has the right

to compulsory attendance of witnesses in his favor via

subpoena of the court.!*

It is obvious from the above that a preliminary hear-

ing in Ohio not only meets the commands of the Fourth

Amendment as set forth in Gerstein v. Pugh’ but goes

further to provide:?*

. & full panoply of adversary safeguards—

counsel, confrontation, cross-examination, and com-

pulsory process for witnesses. A full preliminary

hearing .. .”

And as this court noted, in such hearings: }¢

The standard of proof required of the prosecution

is usually referred to as “probable cause”, but in some

jurisdictions it may approach a prima facie case of

guilt... When the hearing takes this form, adver-

Sary procedures are customarily employed. The im-

portance of the issue to both the State and the accused

justifies the presentation of witnesses and full ex-

ploration of their testimony on cross-examination.”

100. Ohio Crim. R. 43.

101. Ohio Crim. R. 44(A).

102. Ohio Crim. R. 44(C).

103. Ohio Crim. R. 17(F). Subdivision (B) of Crim. R. 17

provides that where the accused is financially unable to pay the

fees generally required for issuance and service of any subpoena,

such subpoenas will be issued without payment. Subdivision (G)

of the said rule provides that any failure to obey the commands

of a subpoena may be deemed contempt of court.

104. 420 U.S. 103 (1975).

105. Gerstein, 420 U.S. at 119-120.

106. Id.

43

Thus, it cannot be disputed that the preliminary hear-

ing afforded Roberts in this case was a “full-fledged”

hearing, “closely approximating . . . an actual trial.’

Under these circumstances, the dicta from Pointer and

Green,’ as well as that from the early case provide a

basis for this court to hold that the opportunity to cross-

examine Anita Isaacs at the preliminary hearing afforded

Roberts his right of confrontation.

In the third objection, closely related to the different-

type-hearing objection, discussed above, it is claimed “the

difference in the ultimate object of proof makes a great

difference in the defense attorney’s strategy.”"° It has

even been suggested that “The general purpose of a pre-

liminary hearing is a discovery tool where the defense

attorney attempts to get information out so he can best

represent his client.’”’!"

Both comments ignore the real purpose of the pre-

liminary hearing: To afford the accused protection against

possibly lengthy pretrial restraints on his freedom when

the case against him is groundless.""”

107. Compare the hearings afforded in Davis v. Alaska, 415

U.S. 308 (1974), and Smith v. Illinois, 390 U.S. 129 (1968), where

partial proscription of cross-examination existed, thus denying the

right to confront. Compare also Pointer, where the accused had

no counsel and no opportunity to cross-examine.

108. At 380 U.S. 407-408.

109. At 399 U.S. 165. .

110. Opinion of the Ohio Supreme Court, Petition, at 21.

111. This suggestion was made by Roberts’ attorney during

argument regarding the admissibility of the transcript. See App.,

at 13. But as the trial judge correctly noted, at App. 14, a pre-

liminary hearing is not a “fishing expedition.” Indeed, Ohio pro-

vides, in its Crim. R, 16, for extensive discovery of the prosecu-

tion’s case by the accused prior to trial.

112. Seee.g., Gerstein v. Pugh, 420 U.S. 103 (1975).

44

The factors which are mentioned by the Ohio Supreme

Court™* as having a practical effect on strategy, however,

cannot be completely ignored. Indeed, these factors

weighed heavily on the Sixth Circuit Court of Appeals

when it decided Havey v. Kropp,* a case which is, in

all material respects, identical to the case herein. The

court discussed extensively™® the strategy factors, and

concluded that, absent more, these factors might well lead

to a conclusion that the opportunity to confront at a pre-

liminary hearing was not sufficient when the testimony

was used at trial.

But the Sixth Circuit found counsel was not working

with merely those factors. It noted a Michigan statute

which was identical in operation as the statute involved

herein.“* The existence of the statute was crucial.”

On the basis of such factors, were it not for ex-

istence of an applicable Michigan statute, it might

be difficult to conclude that appellant had not been

denied the right of confrontation. In the present cir-

cumstance, however, neither was the defendant nor

are we now considering the issue in the absence of

an applicable statutory provision. .

This statute was in effect at the time of the pre-

liminary hearing and, therefore, when appellant by

his counsel decided to conduct only what he consid-

ered to be a limited cross-examination, he did so at

his own risk. The opportunity for unlimited cross-

examination existed, and since he was chargeable

113. See Opinion, Petition at 21.

114. 458 F.2d 1054 (6th Cir., 1972).

115. At 458 F.2d 1056.

116. Compare Section 2945.49 with 458 F.2d 1056.

117. At 458 F.2d 1056-1057. Footnote omitted.

Ree EET OE EE ee ane

45

with knowledge of the statute and his rights under

it, he cannot now be heard to complain because by

his own choice he did not fully cross-examine. (Em-

phasis added)

This logic is inescapable: while certain factors may

militate against extensive cross-examination at a prelim-

inary hearing, counsel has notice of the statute. He knows

the testimony given at such a hearing may be used later

at trial. If he chooses not to cross-examine or to do so

perfunctorily, he does so at his client’s risk.

This logic, of course, presumes that, as the dissent

in the Ohio Supreme Court noted, “‘(t)he manner of use

of (a) trial tactic does not create a constitutional right.””""8

This Court has made that presumption clear on more than

one occasion.'”®

The Ohio Supreme Court merely stated, without going

further,’ that Anita Isaacs was not cross-examined at

the preliminary hearing. Yet the court made no mention

of either the extensive examination of Miss Isaacs nor the

opportunity counsel had of proceeding to cross-examine.

Roberts’ attorney obviously had discussed the matter

with his client prior to the preliminary hearing™ and

118. Opinion of the Ohio Supreme Court, Celebrezze, J. dis-

senting, Petition, at 26, quoting United States v. Allen, 409 F.2d

611 (10th Cir., 1969).

119. E.g., Wainwright v. Sykes, 433 U.S. 72 at 91, note 14,

quoting Henry v. Mississippi, 379 U.S. at 451 and Estelle v. Wil-

liams, 425 U.S. 501 at 512 (1976).

120. Petition, at 22.

121. See, eg., App., at 21, where counsel inquired as to

whether Miss Isaacs and Roberts had ever discussed purchase of a

television set, and App., at 17, where Miss Isaacs was questioned

as to the dates when Roberts borrowed use of her apartment.

st, lial ii aa |

46

called Miss Isaacs in his defense. He was then surprised

by her testimony which incriminated his client.

Counsel had every opportunity at that point to ask

the court to declare her a hostile witness and proceed to

cross-examine.'** Counsel did not ask the court to exercise

its discretion in that regard, a failure which cannot be

imputed to the state.’*

Thus, Roberts cannot complain of any state action

which denied him access to Anita Isaacs or of the opportu-

nity to confront her. He can only complain of his counsel’s

tactics at the hearing, tactics used with full knowledge

that the statute could preserve the testimony for trial.

In summary, then, Roberts cannot complain that the

confrontation clause demands absolute observance, because

this court has made it clear that the clause is a preferential

rule. He cannot complain that his preliminary hearing was

of a kind totally different than that of a trial, because the

hearing is founded in rules which demand it be of a full-

blown adversarial nature. And he cannot complain that

factors of strategy and tactics denied him the right to

fully confront, because his counsel knew the testimony

could be preserved for trial.

In short, Herschel Roberts had every opportunity to

fully examine and cross-examine Anita Isaacs, an oppor-

122. In Ohio, no “voucher rule” exists, but before counsel

may cross-examine his own witness, he must show some grounds

therefor. Whether a witness is then declared hostile is within the

sound discretion of the trial court. State v. Parrott, 27 Ohio St.

2d 205, 272 N.E.2d 112 (1971); State v. Minneker, 27 Ohio St. 2d

155, 271 N.E.2d 821 (1971).

123. As this Court noted in Barber, at 390 U.S. 724, “the pos-

sibility of a refusal is not the equivalent of asking and receiving

a rebuff.”

47

tunity which, under these facts, must be held to have

satisfied the demands of the confrontation clause.’

B. The totality of circumstances under which

Anita Isaacs’ testimony was taken at the pre-

liminary hearing afforded the jury at Roberts’

trial a satisfactory basis for evaluating the

truth of her testimony.

It has been well established in previous arguments

that the preliminary hearing afforded Herschel Roberts

herein was a “full-fledged” judicial hearing of an adver-

sary nature, in which he was present and had every oppor-

tunity to cross-examine extensively. Based on the early

cases, such would be enough to establish the indicia of

reliability necessary for admission of that testimony at trial.

And it has been argued that the opportunity to cross-ex-

amine at the preliminary hearing met the demands of the

confrontation clause.

It has been suggested, however, that the Ohio Supreme

Court was not entirely accurate when it concluded that

Anita Isaacs was not cross-examined. We now turn to

that aspect of the case.

Notable in the testimony’™ is the absolute absence

of any objection whatever by the prosecutor to any ques-

tion posed to Miss Isaacs.

124. Any other rule would lead to the practical result that

defense counsel would have every incentive not to cross-examine

at a preliminary hearing, then hope the witness would not appear

at trial. And such a situation would provide criminal defendants

with every incentive to make sure witnesses against them would

not be available for trial.

125. App. at 16-23.

48

Also notable in the testimony is that absolute absence

of any admonition from the bench as to the manner or

content of the questions posed.

Roberts’ attorney was thus wholly unimpeded in his

questioning of Miss Isaacs. As noted earlier,’** he had

obviously discussed the matter in some detail with his

client and was prepared to ask her questions regarding

his client’s purported relationship with her. When he

found her account conflicted with his client’s, he did not

cease his examination but rather continued extensively,

and in some detail, to probe what she knew and was

prepared to say. Through all of this, neither opposing

counsel nor the bench sought to limit him.

Further the transcript itself bears indicia of cross-

examination. Throughout the examination, and partic-

ularly at crucial questions, Roberts’ counsel used leading

and argumentative questions, the hallmarks of cross-

examination.’*” He ceased asking the cross-examination-

126. See note 21, at 45 supra.

127. At App., at 17, it was asked: “I see. Now is it a fact

that he has been staying at your place for the last couple, three

weeks?” (emphasis added)

Later, at App., 17, the question was posed: “O.K. Now, is

it to your knowledge then, that this Mr. Roberts has been staying

at your apartment until the present time, from December 30th?”

And see App., at 20, where the question is posed: “Now,

since December 24th, isn’t it a fact that you have been in your

parents’ home since that time?”

Later on the same page, it is asked: “Now your parents

weren’t home at that time; isn’t that correct?”

And again on App. 20: “You did not observe any broken

doors or windows, or anything taken; is that correct?”

On App. 21, the crucial question in Roberts’ entire defense

was set forth in language which was at once both argumentative

and leading: “Now, is it a fact that you have seen these credit

cards since the 23rd of December and isn’t it a fact also that

you gave these cards to Mr. Roberts?”

49

type questions not because he was instructed to, but

rather because he desired to.

The totality of circumstances, then, are those of a

full judicial hearing, with the defendant present, repre-

sented by counsel who had every opportunity to develop

whatever evidence might be allowed by the rules of evi-

dence, and extensive examination if not cross-examination

of a clearly adverse witness who testified under oath.

All of these indicia of reliability, taken together, cer-

tainly could and did provide the trier of fact with a sub-

stantial basis for evaluating the truth of Anita Isaacs’

statements, and Roberts was denied no right of confronta-

tion by the use of her transcribed testimony at trial.

CONCLUSION

The Supreme Court of Ohio erred in ruling that, un- .

der the facts herein, the recorded preliminary hearing tes-

timony of Anita Isaacs should not have been used at Rob-

erts’ trial. The judgment of that court should be reversed.

Respectfully submitted,

JOHN E. SHOoP

Prosecuting Attorney for the State

of Ohio

Lake County Court House

Painesville, Ohio 44077

(216) 352-6281

Attorney for Petitioner