Amicus Brief — Ohio v. Roberts

Supreme Court, US

FILED "y

No. 78-756 JUL 28 1979

In the Supreme Court of the United

OCTOBER TERM, 1978

STATE OF OHIO, PETITIONER

Vv.

HERSCHEL ROBERTS

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

SARA SUN BEALE

Assistant to the Solicitor General

JEROME M. FEIT

KATHLEEN A. FELTON

Attorneys

Department of Justice

Washington, D. C. 20530

INDEX

Page

Interest of the United States ................. 1

Questions: ORATIOG: 6i5\« 6:0 oinresie's batidbie veces ens 2

Constitutional provisions, statutes and rules in-

WU a 5S hi0 Ain h'n4 0 it-0'6%s bb ins Viren ae «hie 2

NR icin ehh i'd ditis Hain Rieke wes 3

Summary of argument ...............eeeeeeee 8

PIE os intinn sic edhe nde + nage ER + ib wae 11

I. When a witness is unavailable at the

time of trial, the admission of his prior

recorded testimony does not violate the

Confrontation Clause if the defendant

had an adequate opportunity to cross-

Ce ry eee 11

II. Direct examination may be the equiva-

lent of cross-examination for confronta-

ee ia os area dsc s ops has 6 14

II. Respondent’s examination of Anita

Isaacs was the equivalent of full and

effective cross examination ........... 19

IV. California v. Green establishes that the

Confrontation Clause was not violated

CED. oie s cikelé) SOS 0 KaeeunSe ewe ad 22

CRIS BOGE sins a dvnncviesene wth Uda eves 28

CITATIONS

Cases:

Barber v. Page, 390 US. 719 ....... 7, 12, 13, 22

Bieber v. United States, 276 F.2d 709...... 16

Bruton v. United States, 391 U.S. 128 ..... 15

California v. Green, 399 U.S.

Mb tet Sika 10, 11, 12, 14, 22, 23, 24

Chambers v. Mississippi, 410 U.S. 284 .... 15

Clark v. Lansford, 191 So.2d 123 ......... 15

ii

Cases—Continued:

Page

Commonwealth v. Mustone, 353 Mass. 490,

PE TUS A Ss Wa hc be lsie es cc ceaseevearas 25

Dutton v. Evans, 400 U.S. 74.......... 11, 13, 17

Government of the Virgin Islands v.

Aquéno, S78 F.2d GAO . oie eek 25

Havey v. Kropp, 458 F.2d 1054 ........... 25

Lerma v. United States, 387 F.2d 187, cert.

Cem, SO Lis Be ois ei Be ee cece t's 16

Mancusi v. Stubbs, 408 U.S. 204.......... 13, 27

Mattox v. United States, 156 U.S. 237 .. 11, 12, 17

Parker v. Randolph, No. 78-99 (May 29,

SGU acs ce RE RR Cath sae ooh veda Uke awed 11

Phillips v. Wyrick, 558 F.2d 489, cert. de-

NG, GG Sym I ges os av kade vo ckawe 25

Pointer v. Texas, 380 U.S. 400............ 13, 14

State v. Crawley, 242 Ore. 601, 410 P.2d

WORD pk sh bie Gbiee Uae os howe eck ke bbewce « 25

State v. Doherty, 56 Ohio App. 2d 112, 381

Pits MO WOE ies See ease k oo eate acca 17

State v. Minneker, 27 Ohio St. 2d 155, 271 :

POI RE 5 Los Cease cca RPaweR eae 16

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

Seta ME AER Li oy wees sdb kp sae Ch ehh c 17

State v. Roebuck, 75 Wash. 2d 67, 448 P.2d

WOR iss cauteg <Abaha Pimhiac ot ade bb calndc 25

United States v. Bell, 500 F.2d 1287....... 25

United States v. DeBose, 410 F.2d 1273,

cert. denied, 401 U.S. 920 .............. 16

United States v. Ghalowb, 385 F.2d 567.... 16

United States v. Harless, 464 F.2d 953 .... 25

United States v. Karnes, 53) F.2d 214..... 16

United States v. King, 552 F.2d 833, cert.

denied, 430 U.S. 966 ................... 25

United States v. Lemon, 497 F.2d 854 ..... 16

United States v. Lynch, 499 F.2d 1011..... 25

United States v. Ricketson, 498 F.2d 367,

cert. denied, 419 U.S. 965 ............. vi 2B

Cases—Continued:

Page

United States v. Singleton, 460 F.2d 1148,

cert. denied, 410 U.S. 984 .............. 25

United States ex rel. Duff v. Zelker, 452

F.2d 1009, cert. denied, 406 U.S. 932.... 25

Constitution, statutes and rules:

United States Constitution, Sixth Amend-

pt Lo en er 1, 2, 18

Confrontation Clause............... Passim

2B UBC Bees OE GRE Bees. 19, 26

Ark. Stat. Ann. §28-1001, Uniform Rules of

Evidence 607 (Cum. Supp. 1977) ........ 16

Me. Rev. Stat. Ann., Me. R. Evid. 607

Bas TIT evs senders eae oo. 16

Neb. Rev. Stat. §27-607 (1975) ........... 16

Neb. Rev. Stat. §50.075 (1973) ............ 16

N.M. Stat. Ann. §20-4-607 (Supp. 1975) ... 16

Ohio Rev. Code Ann. §2945.49 (Page

BD wick dnc hdd ARs ok ido cece 2, 5, 6

Wis. Stat. Ann. §906.06 (West i975)....... 16

Fed. R. Evid.:

RPMs hN ae NWE 8 hn b Gases dsbceee 16

EEE CE a ae

i oo Ws cir hid Canis .eile'n 00.02 0 19, 26

Rule 804(b)(1) ............ 1, 2, 3, 14, 18, 26

A He Is, iss wi odkkse i Kae vidaiecs ccen 16

pO Ey eee eee oe 16

PEF Be IO Weis winik'es Sised praeiewiees'es 16

Ohio R. Crim. P.:

isis bbe eee piciv ue wat 24

I 656s 0 cK ine Peas 654 0's 24

Uniform Rules of Evidence, 804(b)(1) ...... 18

Miscellaneous

Falknor, Former Testimony and the Uni-

form Rules: A Comment, 38 N.Y.U. L.

Rev. G61 (19GB). odin cic clots bcc we cisiite ois 18

iv

Miscellaneous—Continued:

Page

Graham and Letwin, The Preliminary

Hearing in Los Angeles: Some Field

Findings and Legal Policy Observations,

18 U.C.L.A. L. Rev. 685 (1971) ......... 27

McCormick on Evidence (2d ed. E. Cleary

RR e dikes dieibaad hTedena be bates 000s 16, 18

Model Code of Evidence (1942) ............ 15

3 Weinstein’s Evidence (1978) ............. 16

4 Weinstein’s Evidence (1978) ............. 18

3 J. Wigmore, Evidence (Chadbourn rev.

OU Fe nek bes ay ARPA Dae denied vais 16

5 J. Wigmore, Evidence (3d ed. 1940)...... 14

5 J. Wigmore, Evidence (Chabourn rev.

GCA i has Cas occ C8 CS eRe veank 14

In The Supreme Court of the Wnited States

OCTOBER TERM, 1978

No. 78-756

STATE OF OHIO, PETITIONER

Vv.

HERSCHEL ROBERTS

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This case presents an important question regarding

the circumstances in which the Confrontation Clause of

the Sixth Amendment permits the introduction of the

prior recorded testimony of an unavailable witness. Al-

though this is a state prosecution and the prior tes-

timony was admitted pursuant to a state statute, prior

testimony of witnesses who subsequently become un-

available is admitted in a substantial number of federal

_ prosecutions pursuant to Fed. R. Evid. 804(b)(1). Given

1

2

the same circumstances, we believe the disputed tes-

timony in this case would have been admissible in a fed-

eral prosecution under Rule 804(b)(1), which creates an

exception to the hearsay rule for the prior testimony of

an unavailable witness if the defendant “had an oppor-

tunity and similar motive to develop the testimony by

direct, cross, or redirect examination” at the prior pro-

ceeding. A ruling in favor of respondent would substan-

tially impugn the constitutionality of the federal rule.

Accordingly, the United States has a substantial inter-

est in the resolution of the question whether the Con-

frontation Clause was violated by the introduction of

this testimony.

QUESTION PRESENTED

Whether respondent’s Sixth Amendment right to

confront the witnesses against him was violated by the

introduction of the prior testimony of an unavailable

witness whom respondent had called and questioned ex-

tensively at his preliminary hearing.

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED

The Sixth Amendment to the United States Constitu-

tion provides, in pertinent part:

in all criminal prosecutions, the accused shall

enjoy the right * * * to be confronted with the wit-

nesses against him * * *.

Ohio Rev. Code Ann. §2945.49 (Page 1953) provides:

Testimony taken at an examination or a prelimi-

nary hearing at which the defendant is present, or

at a former trial of the cause, or taken by deposi-

tioin at thie 'instuings “ol the delendanice' thid-itete,

may be used whenever the witness giving such tes-

timony dies, or cannot for any reason be produced

at the trial, or whenever the witness has, since

giving such testimony, become incapacitated to tes-

3

tify. 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 ex-

ceptions, or transcript, otherwise by other tes-

timony.

Fed. R. Evid. 804(b)(1) provides:

(b) Hearsay exceptions. The following are not

excluded by the hearsay rule if the declarant is un-

available as a witness:

(1) Former testimony. Testimony given as a wit-

ness at another hearing of the same or a different

proceeding, or in a deposition taken in compliance

with law in the course of the same or another pro-

ing, if the party against whom the testimony is

now offered, or, in a civil action or proceeding, a

predecessor in interest, had an opportunity and

similar motive to develop the testimony by direct,

_ eross, or redirect examination.

STATEMENT

1. In January of 1975 respondent was arrested by the

local police in Lake County, Ohio, and charged with

forgery of a check and receipt of a number of stolen

credit cards belonging to Bernard and Amy Isaacs (Pet.

App. 15).

At his preliminary hearing in the Mentor Municipal

Court, respondent offered the testimony of the Isaacs’

daughter, Anita, to substantiate his claim that Anita

had allowed him to use the credit cards. Anita Isaacs

testified that she was acquainted with respondent and

that she had allowed him to stay at her apartment in

late December 1974, while she was away (Tr. 282-283).

She also admitted that she had been allowed to use cer-

tain of her parents’ credit cards on occasion (Tr. 284).

- But instead of corroborating respondent’s claim that

she had given him permission to use her parents’ credit

cards, Isaacs denied that she had given respondent any

4

of the cards and insisted that she had never used or

even seen several of the credit cards that had been sto-

len (Tr. 285-286, 288-289). Respondent’s attorney

asked a number of leading questions that suggested

that Isaacs had given Roberts her parents’ credit cards

in order to help pay for a television set, but she per-

sisted in her denial (Tr. 289-291). Defense counsel did

not ask the court to deciare Isaacs a hostile witness so

that he could formally cross-examine her, and the State

did not question her (see Tr. 292).

The grand jury subsequently indicted respondent for

forgery and receipt of stolen property (Pet. App. 16).

These charges were consolidated for trial with a second

indictment charging respondent with receiving and con-

cealing other stolen property belonging to Mr. and Mrs.

Isaacs, and with possession of heroin (ibid. ).

2. The case was continued numerous times; it finally

went to trial before a jury in early March of 1976. The

State’s evidence established that respondent had been

apprehended at a shopping mall where he had at-

tempted to use Bernard Isaacs’ credit card to purchase

a camera and to use a check signed “Bernard Isaacs” to

buy a diamond pendant (Tr. 29-31, 50-60). At the time

of his arrest, respondent identified himself as Bernard

Isaacs and produced identification in Isaacs’ name (Tr.

79-80). A search incident to respondent’s arrest re-

vealed that he was carrying a small silver chalice in his

pocket; the chalice was later identified as one that had

been stolen from the Isaacs’ home (Tr. 84-85). After

respondent’s arrest, a warrant was issued authorizing a

search of his automobile, and the officers executing the

warrant discovered heroin and other items stolen from

the Isaacs’ home (Tr. 130-138, 144-145, 158-159).

Respondent testified in his own defense. He stated

had been living with Anita Isaacs, that Isaacs

5

stated that the check was already signed when he re-

ceived it (Tr. 232).

On rebuttal, the State offered a certified transcript of

Isaacs’ preliminary hearing testimony pursuant to Ohio

Rev. Code Ann. §2945.49 (Page 1953), which permits

the introduction of the prior testimony of a witness who

is unavailable at the time of trial (Tr. 273-274). Be-

tween the issuance of the indictment and the time of

trial, the court had issued five subpoenas to Isaacs at

her parents’ address (Pet. App. 16). Isaacs never re-

sponded, and she did not appear at the trial (id. at 17).

Mrs. Isaacs testified on voir dire that approximately 13

months before the trial Anita had left home, saying that

she intended to go to Tucson, Arizona (A. 8). Mrs.

Isaacs stated (id. at 8-9, 11) that she did not know

where Anita was living, and that since the time Anita

left, her family had heard from her only twice, most

recently during the summer of 1975 when Anita called

home, saying only that she was travelling somewhere

outside of Ohio.! Neither Mrs. Isaacs nor any other

member of the family had received any communication

from Anita since then and they had no other informa-

tion as to her whereabouts (id. at 8-11).

Resnondent objected to the admission of the tran-

script on 2 ground that it would violate his right to

confront the witnesses against him, and also on the

ground that it was not proper rebuttal (A. 12-14). The

trial court overruled these objections and admitted the

transcript (id. at 14).

Respondent was convicted on all counts. He was sen-

tenced to concurrent terms of one to five years’ impris-

onment for possession of heroin, two to five years’ im-

1Mrs. Isaacs also stated that in April or May of 1975, the

Isaacs had received a form from San Francisco County stating

that Anita had applied for welfare and asking for certain infor-

mation (A. 10-11). The Isaacs had located Anita at that time

through the social worker assigned to her case in San Francisco,

and spoke to her once.

6

prisonment for receipt of stolen property, and to a con-

secutive term of 18 months to five years’ imprisonment

for forgery. All of these sentences were to be consecu-

tive with other state sentences respondent was already

serving.

3. The Court of Appeals for Lake County reversed

respondent’s conviction, holding that the admission of

Anita Isaacs’ preliminary hearing testimony violated

petitioner’s right to confront the witnesses against him

because the State had not made a sufficient showing

that Isaacs was not available at the time of trial (A. 5).

The Ohio Supreme Court granted the State’s motion

for leave to appeal. It upheld the reversal of the convic-

tion, with three justices dissenting (Pet. App. 15-26).

The majority disagreed, however, with the lower

court’s conclusion that the State had failed to show a

good faith effort to produce Isaacs at trial,? and it held

that Section 2945.49 is applicable where, as here, a wit-

ness has disappeared (id. at 19-20).

Since Isaacs was unavailable at the time of trial, the

majority ruled (Pet. App. 20) that her prior testimony

would be admissible, but “only if the testimony was

given subject to cross-examination by the defendant in

a judicial proceeding concerning substantially the same

?The court concluded (Pet. App. 20):

We hold that in the present cause, the trial judge could

reasonably have concluded from Mrs. Isaacs’ voir dire tes-

timony that due diligence could not have procured the at-

tendance of Anita Isaacs. The last definite word of Anita’s

whereabouts was that she was in San Francisco in April or

May of 1974. Later, her parents learned that she was

“traveling” somewhere outside Ohio. From this the trial

judge could reasonably infer that Anita had left San Fran-

cisco, and that it would have been fruitless for the prosecu-

tion to have contacted the San Francisco social worker in

order to locate Anita. Therefore, the trial judge could

properly hold that the witness was unavailable to testify in

person.

7

issues.” Here, although the basic factual issues were

the same at the preliminary hearing and the trial, the

court concluded (id. at 21) that the “ultimate factual is-

sues” were “quite different.” The ultimate issue at the

preliminary hearing is whether there is probable cause,

whereas at trial the issue is whether the defendant’s

guilt has been proved beyond a reasonable doubt. This

“difference in the ultimate object of proof,” the court

concluded (ibid.), “makes a great difference in the de-

fense attorney's strategy.” Because “the restriction of

the factual issue at preliminary hearing restricts the

scope of cross-examination which defense counsel can

prudently conduct,” the court held (id. at 22) that

the mere opportunity to cross-examine at the pre-

liminary hearing can not be said to afford confron-

tation for purposes of the trial. * * * [WJhere a

witness, who testified against the defendant at

preliminary hearing and was not cross-examined is

later unavailable to testify at the trial, the Sixth

Amendment precludes the state’s use of the wit-

ness’ recorded testimony, notwithstanding R.C.

2945.49.

The Ohio court held (Pet. App. 22) that the case was

governed by Barber v. Page, 390 U.S. 719 (1968),

where the admission of recorded preliminary hearing

testimony of a witness who was not produced at trial

was held to violate the Confrontation Clause. In this

case, as in Barber, the court reasoned (Pet. App. 22),

the defendant’s failure to cross-examine the witness at

the preliminary hearing did not constitute a knowing

and intentional relinquishment of his right to confront

the witness at trial. The Ohio court concluded (id. at

23) that “[tJhe later case of California v. Green, [399

U.S. 149 (1970)], does not hold otherwise.” Green in-

volved the admission of a witness’s preliminary hearing

testimony when the witness testified at trial and was

available for cross-examination. Accordingly, the Ohio

Supreme Court held (Pet. App. 23) that this Court’s

8

statement that the opportunity for cross-examination at

the preliminary hearing alone satisfied the Confronta-

tion Clause was mere dictum. Moreover, the court

pointed out (id. at 24) that even this dictum must be

interpreted in light of the fact that the preliminary

hearing in Green was “quite atypical” in that the wit-

ness was cross-examined extensively. Accordingly, the

Ohio court concluded that Green “goes no further than

to suggest that cross-examination actually conducted at

preliminary hearing may afford adequate confrontation

ae of a later trial” (ibid.; emphasis in origi-

Justice Celebrezze’s dissent stated (Pet. App. 26):

In my opinion, the Sixth Amendment to the

United States Constitution does not prohibit,

under the facts of the instant case, the admission in

evidence of the witness’ recorded testimony. As

was stated in United States v. Allen * * * 409 F.2d

611, 613, “ * * * the test is the opportunity for full

and [fair] cross-examination rather than the use

which is made of that opportunity. * * * The 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 constitu-

tional right.”

SUMMARY OF ARGUMENT

I

Respondent examined Anita Isaacs extensively after

calling her as a witness at his preliminary hearing, but

he did not formally cross-examine her. The principal

question posed by this case is whether this direct

examination should be treated as the equivalent of

cross-examination for purposes of the Confrontation

Clause. If so, this case falls within a long

line of decisions recognizing that there is an exception

9

to the rule of literal confrontation at trial when a wit-

ness is unavailable and the prosecution introduces the

recorded testimony of the witness at a prior judicial

proceeding against the same defendant, which was

subject at. that time to cross-examination by the de-

fendant.

Direct examination under modern procedural rules

can serve the same function as cross-examination. The

voucher rule has now been abandoned in the federal

system and in many states. Thus, the defendant can use

the traditional techniques of cross-examination—such

as leading questions—to impeach his own witness if the

witness surprises him with adverse testimony or proves

to be hostile, biased against the defendant, or unwilling

to testify.

The preliminary hearing transcript in this case dem-

onstrates that where these flexible techniques are

available, direct examination affords the same opportu-

nity for confrontation as cross-examination. As a tech-

nical matter, respondent conducted only a direct

examination of Anita Isaacs. But from the point—early

in Isaacs’ testimony—when it became clear that she

was contradicting rather than corroborating re-

spondent’s story, the form and tenor of the questioning

were identical to the cross-examination one would ex-

pect in the same circumstances.

Respondent’s direct examination was the substantial

equivalent of cross-examination at trial. No restriction

was imposed on respondent’s detailed questioning. The

State did not object to and the trial court did not re-

strain respondent’s use of many leading questiens. Re-

spondent explored the details of Isaacs’ relationship

with respondent, her version of the events in question,

and her possible motive for allowing respondent to use

her parents’ credit cards and checks. Respondent has

never suggested any other line of questioning he wished

to pursue at trial, and we know of none. Respondent’s

examination of Isaacs differed from cross-examination

.

vee

10

in name only, and it gave him the same opportunity to

confront her and to probe the reliability of her adverse

testimony.

II

Since respondent’s examination of Isaacs at the pre-

liminary hearing was the equivalent of cross-

examination, this case is governed by California v.

Green, 399 U.S. 149 (1970), v hich establishes that there

has been substantial compliance with the Confrontation

Clause when the accused has conducted a thorough

examination of a witness at his preliminary hearing. As

this Court pointed out in Green, the conditions of the

preliminary hearing closely approximate those at the

typical trial: Isaacs was under oath, respondent was

represented by counsel, he had every opportunity to

examine Isaacs, and the proceedings were conducted

before a judicial tribunal equipped to record the pro-

ceedings. Here, as in Green, the opportunity to exam-

ine Isaacs under these trial-type conditions allowed re-

spondent to test Isaacs’ recollection and sift her con-

science so that the trier of fact would have a satisfac-

tory basis for evaluating the truth of her statements.

This provided substantial compliance with the purposes

of the confrontation requirement.

In cases in which the defendant was afforded an op-

portunity to examine a witness who testified at his pre-

liminary hearing but failed to do so, or did so only in a

perfunctory manner, the question whether there has

been substantial compliance with the Confrontation

Clause may be more difficult. As the Ohio Supreme

Court pointed out, the issue at the preliminary hearing

is restricted to probable cause, and either practical or

strategic considerations often cause a defendant to limit

or forego cross-examination of the prosecution’s witnes-

ses. But in this case, as in Green, the defendant did

avail himself of the opportunity to confront the witness;

oerney: the Confrontation Clause has been satis- .

11

ARGUMENT

I. WHEN A WITNESS IS UNAVAILABLE AT THE

TIME OF TRIAL, THE ADMISSION OF HIS PRIOR

RECORDED TESTIMONY DOES NOT VIOLATE

THE CONFRONTATION CLAUSE IF THE DE-

FENDANT HAD AN ADEQUATE OPPORTUNITY

TO CROSS-EXAMINE HIM

The Confrontation Clause was adopted as a reaction

to “the practice of trying defendants on ‘evidence’ which

consisted solely of ex parte affidavits or depositions se-

cured by the examining magistrates, thus denying the

defendant the opportunity to challenge his accuser in a

face-to-face encounter in front of the trier of fact.’

California v. Green, 399 U.S. 149, 156 (1970). It

guarantees the defendant “an opportunity, not only of

testing the recollection and sifting the conscience of the

witness, but of compelling him to stand face to face with

the jury in order that they may look at him, and judge

by his demeanor upon the stand and the manner in

which he gives his testimony whether he is worthy of

belief.” Mattox v. United States, 156 U.S. 237, 242-243

(1895). The mission of the confrontation requirement is

“+o advance a practical concern for the accuracy of the

truth-determining process in criminal trials by assuring

that ‘the trier of fact [has] a satisfactory basis for

evaluating the truth of the prior statement.’ ” Dutton

v. Evans, 400 U.S. 74, 89 (1970), quoting California v.

Green, supra, 399 U.S. at 161. See Parker v. Ran-

dolph, No. 78-99 (May 29, 1979), slip op. 10.

Even though the right protected by the Confronta-

tion Clause is “basically a trial right,” this Court has

traditionally recognized “an exception to the confronta-

tion requirement where a witness is unavailable and has

given testimony at previous judicial proceedings against

the same defendant which was subject to cross-

examination by that defendant.” Barber v. Page, 390

U.S. 719, 722, 725 (1968). This exception to the rule of

literal confrontation at trial “aris[es] from necessity”

and is “justified on the ground that the right of cross-

12

examination initially afforded provides substantial com-

pliance with the purposes behind the confrontation re-

quirement.” Jd. at 722. See California v. Green,

supra, 399 U.S. at 166. As this Court explained in

Mattox v. United States, supra, 156 U.S. at 243:

There is doubtless reason for saying that the ac-

cused 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 per-

sonal presence of the witness before the jury which

the law has designed for his protection. But gen-

eral 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. 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 con-

stitutional protection to an unwarrantable extent.

The law in its wisdom declares that the rights of

the public shall not be wholly sacrificed in order

pesnatiee incidental benefit may be preserved to the

accused.

In sum, this Court’s prior decisions establish that

where a witness is shown to be unavailable despite the

prosecution’s good faith efforts to obtain his presence at

trial,* the Confrontation Clause does not bar the intro-

duction of his recorded testimony taken “at a full-

fledged hearing,” at which the defendant was repre-

3As the Ohio Supreme Court recognized (Pet. App. 19), the

State may introduce prior recorded testimony only when it has

established necessity by showing that it had made a good faith

effort to produce the witness at trial. Barber v. Page, supra,

390 U.S. at 724-725. The Ohio Supreme Court upheld the trial

court’s finding that Anita Isaacs could not be produced at trial

because her whereabouts were unknown (Pet. App. 20).

13

sented by counsel who was given “a complete and

adequate opportunity to cross-examine.” See Pointer v.

Texas, 380 U.S. 400, 407 (1965). So long as the defend-

ant has had “an adequate opportunity to cross-examine”

a witness at a prior hearing, and defense counsel has

“availed himself of that opportunity,” the transcript of

that prior testimony is admissible because it bears

“sufficient ‘indicia of reliability’ and afford[s] ‘the trier

of fact a satisfactory basis for evaluating the truth of

the prior statement.’” Mancusi v. Stubbs, 408 U.S.

204, 216 (1972), quoting Dutton v. Evans, supra, 400

U.S. at 89.4

The Ohio Supreme Court rested its determination

that the Confrontation Clause had been violated on the

fact that Anita Isaacs was never cross-examined, and

on the further conclusion that the opportunity for

examination at the preliminary hearing was not an ef-

fective substitute for the opportunity to cross-examine

her at trial. The principal question posed in this case is

whether respondent’s direct examination of Isaacs at

the preliminary hearing was the equivalent of cross-

examination for purposes of the Confrontation Clause.

If so, the case is on all fours with California v. Green,

supra, 399 U.S. at 166, which held that the admission of

4In Dutton v. Evans the Court held that a co-conspirator’s

post-arrest statement was admissible, despite the fact that

there had been no actual confrontation, because the statement

possessed sufficient “indicia of reliability.” Needless to say,

Dutton did not call into question the line of decisions holding

that prior recorded statements are admissible when the relia-

bility of the statement has been guaranteed by exercise of an

adequate opportunity for cross-examination, and the subsequent

decision in Mancusi v. Stubbs reaffirmed the traditional analy-

sis. Since this case falls comfortably within the established line

of decisions regarding prior recorded statements, there is no

need to test the limits of Dutton to determine what other fac-

tors migh’ »e sufficient to establish reliability where there has

been no exercise of a meaningful opportunity for actual confron-

tation.

14

an unavailable witness’s preliminary hearing testimony

provided “substantial compliance with the purposes be-

hind the confrontation requirement.” At least where, as

here, the defendant has had a meaningful opportunity

to examine a witness at length at a preliminary hear-

ing,** Green holds that the differences between a pre-

liminary hearing and trial are not sufficient to warrant

distinguishing between the two for purposes of the

Confrontation Clause.

Il. DIRECT EXAMINATION MAY BE THE EQUIVA-

LENT OF CROSS-EXAMINATION FOR CON-

FRONTATION PURPOSES

The function of cross-examination is to provide a

basis on which the trier of fact can evaluate the truth-

fulness of a witness’s statements.5 Cross-examination

serves this function by giving the party against whom a

witness’s testimony is offered an opportunity to develop

“(a) the remaining and qualifying circumstances of the

subject of the testimony, as known to the witness, and

(b) facts which diminish the personal trustworthiness of

the witness.” 5 J. Wigmore, Evidence § 1368 at 36-37

(Chadbourn rev. ed. 1974). Cross-examination enhances

the truth determining process by allowing an opposing

“We assume that one component of such a “meaningful op-

portunity” is the “similar motive” to which Fed. R. Evid. 804

(b)(1) refers. Even if a defendant has not taken advantage of a

previous opportunity to cross-examine a witness who has be-

come unavailable by the time of trial, the admission of the prior

testimony of that witness would not violate the Confrontation

Clause so long as the defendant’s motive to cross-examine at the

earlier proceeding was the same as or similar to what it would

be at trial. See note 17, infra.

5“(P]robably no one, certainly no one experienced in the trial

of lawsuits, would deny the value of cross-examination in ex-

posing falsehood and bringing out the truth in the trial of a

criminal case.” Pointer v. Texas, supra, 380 U.S. at 404.

15

party to explore “ ‘the many possible deficiencies, sup-

pressions, sources of error and untrustworthiness,

which lie underneath the bare untested assertion’ ” of

an adverse witness. Bruton v. United States, 391 U.S.

123, 186 n.12 (1968), quoting 5 J. Wigmore, Evidence

$1362 at 3 (8d ed. 1940).°

Although there have traditionally been certain lim-

itations on the scope of direct examination that have not

been applicable to cross-examination, the modern pro-

cedural rules now in force in most jurisdictions afford a

party substantial latitude in challenging adverse tes-

timony on direct, as well as cross-examination. The

most serious limit traditionally placed on the scope of

direct examination was the voucher rule,’ followed in

many jurisdictions, which prohibited a party from im-

peaching his own witness, on the ground that the party

“ ‘youches for his credibility’ ” and is bound by anything

his witness may say. Chambers v. Mississippi, 410

U.S. 284, 295, 297 (1973), quoting Clark v. Lansford,

191 So.2d 123, 125 (Miss. 1966).° The voucher rule has

been abolished in the federal system, where “[tJhe

credibility of a witness may be attacked by any party,

6In his Foreword to the Model Code of Evidence, Professor

Edmund Morgan states that the role of cross-examination is to

test “the perception, memory, narration and sincerity of a wit-

ness.” Model Code of Evidence 37 (1942).

7“Although the historical origins of the ‘voucher’ rule are un-

certain, it appears to be a remnant of primitive English trial

practice in which ‘oath-takers’ or ‘compurgators’ were called to

stand behind a particular party’s position in any controversy.”

Chambers v. Mississippi, 410 U.S. 284, 296 (1973).

8In Chambers this Court concluded (410 U.S. at 297-298) that

the application of a state voucher rule denied the defendant due

process where it precluded him from questioning a witness

about the fact that the witness had admitted committing the

crime for which the defendant was being tried.

16

including the party calling him” (Fed. R. Evid. 607),

and in many states as well.®

The other principal restriction traditionally placed on

the scope of direct examination has been the general

rule that leading questions are not permissible on di-

rect, although they are ordinarily allowed during

cross-examination. See 3 J. Wigmore, Evidence § 769

at 154, §773 at 165 (Chadbourn rev. ed. 1970); 3

Weinstein’s Evidence 9611[05], at 611-54 (1978). How-

ever, this general rule is subject to an exception that

affords substantial flexibility when a witness gives ad-

verse testimony on direct examination: leading ques-

tions are permitted when a witness is hostile, biased

against the party calling him, or unwilling to testify. 3

J. Wigmore, Evidence §774 at 167 (Chadbourn rev. ed.

1970); McCormick on Evidence §6 at 10 (2d ed. E.

Cleary 1972); Fed. R. Evid. 611(c).?°

Ohio, like the federal courts, follows these liberalized

rules and permits a party to impeach his own witness,

and to request a ruling that a witness is hostile so that

leading questions may be used on direct examination.

See, e.g., State v. Minneker, 27 Ohio St. 2d 155, 271

°F .g., Ark. Stat. Ann. §28-1001, Uniform Rules of Evidence

607 (Cum. Supp. 1977); Me. Rev. Stat. Ann., Me. R. Evid. 607

(Supp. 1978); Minn. R. Evid. 607; Mo. R. Evid. 607; Neb. Rev.

Stat. §27-607 (1975); Nev. Rev. Stat. §50.075 (1973); N.M.

Stat.Ann. §20-4-607 (Supp. 1975); N.D. R. Evid. 607; Wis.

Stat. Ann. §906.06 (West 1975).

10See, e.g., United States v. Karnes, 531 F.2d 214, 217 (4th

Cir. 1976); United States v. Lemon, 497 F.2d 854, 859 (10th Cir.

1974); United States v. DeBose, 410 F.2d 1273, 1276 (6th Cir.

1969), cert. denied, 401 U.S. 920 (1971); Lerma v. United

States, 387 F.2d 187, 190 (8th Cir.), cert. denied, 391 U.S. 907

(1968); United States v. Ghaloub, 385 F.2d 567, 571-572 (2d

Cir. 1966); Bieber v. United States, 276 F.2d 709, 712-713 (9th

Cir. 1960).

17

N.E.2d 821 (1971); State v. Doherty, 56 Ohio App. 2d

112, 381 N.E.2d 960 (1978).44

In the federal system and in states, such as Ohio,

where the rules governing direct examination provide a

party with ample flexibility to challenge adverse tes-

timony by his own witnesses, the defendant’s direct

examination of a witness should be treated as the

equivalent of cross-examination for purposes of the

Confrontation Clause. Under modern state procedural

rules—and under the Federal Rules of Evidence—

direct examination allows the defendant to develop any

qualifying circumstances and any factors that cast

doubt on the witness’s reliability and trustworthiness.

The defendant can impeach his witness by all the tradi-

tional means, including any prior inconsistent state-

ments, motives for concealment, or bias. If the witness

becomes hostile or evasive, the defendant can request a

ruling that permits the use of leading questions.

Since such wide-ranging direct examination permits

an accused to “test[] the recollection” and “sift[{] the

conscience” of an adverse witness, Mattox v. United

States, supra, 156 U.S. at 242, it serves the function of

assuring the “accuracy of the truth-determining proc-

ess.” Dutton v. Evans, supra, 400 U.S. at 89. Accord-

11Both Ohio cases cited involved the State’s direct examina-

tion of a witness who had surprised the prosecutor by giving

testimony that was inconsistent with the witness’s pretrial

statement, but they are examples of the general practice per-

mitting the designation of a party’s own witness as hostile. See

State v. Minneker, supra, 27 Ohio St. 2d at 158, 271 N.E. 2d at

824. The cases state the additional restriction that the State

may refresh its witness’s memory with his prior statement, but

may not introduce the prior statement as evidence of the de-

fendant’s guilt. State v. Doherty, 56 Ohio App. 2d at 113, 381

N.E. 2d at 961.

Under Ohio law, the trial judge has discretion in ruling on a

request that a witness be declared hostile. State v. Parrott, 27

Ohio St. 2d 205, 210, 272 N.E. St. 2d 112, 116 (1971) (upholding

trial court’s refusal of defendant’s request tc designate witness

as hostile where defendant gave no reason for his request).

18

ingly, direct and redirect examination should be treated

as the equivalent of cross-examination for purposes of

the Confrontation Clause. Of course the application of

particular procedural or evidentiary rules may lead the

trial judge to restrict either direct or cross-examination

in a particular case, giving rise to a claim of infringe-

ment of the defendant’s Sixth Amendment right to

confront the witnesses against him, and such claims

must be addressed on a case-by-case basis. But there is

no reason to differentiate, as a general rule, between

direct and cross-examination.

So far as we know, the Confrontation Clause question

presented here is one of first impression, and no court

has passed on these arguments. But those commen-

tators that have addressed the question have accepted

the foregoing analysis and have concluded that direct

(and redirect) examination by an accused should be

deemed the equivalent of cross-examination for con-

frontation purposes. 4 Weinstein’s Evidence,

§804(b)(1)[05] at 804-66 (1978); McCormick on Evi-

dence §255 at 617 (2d ed. E. Cleary 1972); cf. Falknor,

Former Testimony and the Uniform Rules: A Com-

ment, 38 N.Y.U. L. Rev. 651, 651 n.1, 659-660 (1963).

The Federal Rules of Evidence (as well as the nearly

identical Uniform Rules of Evidence) have likewise

adopted this analysis and they draw no distinction be-

tween prior direct examination and prior cross-

examination. Rule 804(b)(1) of the Federal Rules

creates an exception to the hearsay rule for “[t]es-

timony given as a witness at another hearing of the

same or a different proceeding * * * if the party against

whom the testimony is now offered * * * had an oppor-

tunity and similar motive to develop the testimony by

direct, cross, or redirect examination” (emphasis

added).!* Although the Advisory Committee Notes for

12Rule 804 (b) (1) of the Uniform Rule of Evidence is identical

to Fed, R. Evid. 804 (b) (1).

19

Rule 804 recognize that this Court’s prior decisions

leave open the question whether direct examination is

equivalent to cross-examination for purposes of the

Confrontation Clause, the Committee Notes make a

strong case for treating them as equivalents (28 U.S.C.

App. at 591):

Under the exception, the testimony may be of-

fered (1) against the party against whom it was

previously offered or (2) against the party by

whom it was previously offered. In each instance

the question resolves itself into whether fairness

allows imposing, upon the party against whom now

offered, the handling of the witness on the earlier

occasion. * * * A more direct and acceptable ap-

proach is simply to recognize direct and redirect

examination of one’s own witness as the equivalent

of cross-examining an opponent’s witness. [Cita-

tions omitted.] Allowable techniques for dealing

with hostile, doublecrossing, forgetful, and men-

tally deficient witnesses leave no substance to a

claim that one could not adequately develop his

own witness at the former hearing. An even less

appealing argument is presented when failure to

develop fully was the result of a deliberate choice.

Ill. RESPONDENT’S EXAMINATION OF ANITA

ISAACS WAS THE EQUIVALENT OF FULL AND

EFFECTIVE CROSS-EXAMINATION

A review of respondent’s interrogation of Anita

Isaacs at the preliminary hearing provides a vivid

example of how direct examination conducted pursuant

to modern procedural rules serves precisely the same

function as cross-examination. Although Isaacs was

called as a defense witness and all of her testimony was

technically given on direct examination, it rapidly be-

came clear that she was contradicting—not

ccrroborating—respondent’s claims. From that point

on, respondent’s interrogation of Isaacs served the pur-

20

pose of cross-examination, and it was conducted in pre-

cisely the same way as cross-examination of the same

witness would have been conducted. Respondent’s op-

portunity to confront Isaacs was in no way hampered

by the fact that it occurred on direct examination, and

it would exalt form over substance to treat this exam-

ination as insufficient to constitute confrontation merely

because it was not termed cross-examination.

Although respondent called Isaacs as a defense wit-

ness, it became clear early in her testimony that she

was contradicting his claims that she had given him her

parents’ credit cards, their silver chalice, and her

father’s checkbook. After a number of introductory

questions, defense counsel asked Isaacs if she recog-

nized the packet of credit cards respondent claimed that

she had given him to use (A. 18). When Isaacs looked

through the cards in the packet, she did not identify

them as cards that she had given to respondent; to the

contrary, her only comment was that she had never

seen many of the credit cards before (A. 18-19). De-

fense counsel then asked Isaacs if she could identify the

small silver chalice that respondent said she had asked

him to have appraised (A. 19). Isaacs responded that

she had never seen the chalice outside of her parents’

home (ibid.).

From that point on although defense counsel never

asked for a formal ruling that Isaacs was a hostile wit-

ness, the form and tenor of his questions became identi-

cal to questions asked during cross-examination or di-

rect examination of a hostile witness. Counsel im-

mediately began to use leading questions, asking—in

the wake of Isaacs’ statement, just moments before,

that she had never seen the chalice outside her parents’

home —“You have never seen it in your apartment?”

(A. 20). At times, his questioning became not only

leading, but almost belligerent. For example, counsel

stated, “Now, since December 24th, isn’t it a fact that

you have been in your parents’ home?” (ibid.). He

challenged Isaacs’ earlier statements about the credit

21

cards with the same type of leading questions (A. 21),

asking “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 credit cards to [respondent]?” Despite

Isaacs’ denials, defense counsel continued to press her

in an attempt to establish her motive for giving re-

spondent the cards. Again using a series of leading

questions, counsel asked: “You never talked to [respon-

dent], here, about buying a color portable TV set that

was his? * * * You never gave him credit cards in order

to help pay for that TV set?” (A. 21). Despite her de-

nials, counsel elicited the fact that petitioner had a TV

set and that Isaacs had only a $20 “old model” TV for

which she had rigged a makeshift antenna (A. 21-22).

Respondent’s examination of Anita was thus the

equivalent of cross-examination, and it provided him

with an ample opportunity for confrontation. The tran-

script reveals that there were no restrictions on re-

spondent’s efforts to confront and question Isaacs. The

State did not object to any of the questions, nor did the

court ever rule any of them out of order. Neither re-

spondent nor the Ohio Supreme Court has suggested

any way in which he was hampered by the fact that he

was technically conducting a direct examination. Re-

spondent has never identified any subject that he would

have inquired into if he had been given an opportunity

formally to cross-examine Isaacs.

Moreover, it was respondent himself who elected to

call Isaacs as a witness at his preliminary hearing and

thus to create the evidence about which he now com-

plains; and after it became clear that her testimony was

adverse to him, he elected to continue his examination

in an effort to undermine her adverse comments. The

State did not elicit Isaacs’ testimony, and it did not seek

to frustrate respondent’s attempt to shake Isaacs’

story. Even apart from traditional notions that a party

vouches for the credibility of the witnesses he calls,

these circumstances further undermine respondent’s

22

contention that he was unfairly prejudiced by the ad-

mission of Isaacs’ testimony.

IV. California v. Green ESTABLISHES THAT THE

CONFRONTATION CLAUSE WAS NOT VIO-

LATED IN THIS CASE

The Ohio Supreme Court attempted to answer the

question it believed had been left open by this Court’s

decision in California v. Green, namely, whether

merely affording the defendant the opportunity to

cross-examine a witness at the preliminary hearing is

sufficient—even if the defendant does not avail himself

of that opportunity—to constitute substantial com-

plianee with the confrontation requirement so as to

permit the introduction of the witness’s statements at

trial

As we have shown above, the premise of this portion

of the state court’s decision is erroneous: respondent’s

direct examination of Isaacs was the equivalent of full

and unrestricted cross-examination.'* Accordingly, the

remaining question in the case is not, as the Ohio Su-

preme Court supposed, whether the mere opportunity

to cross-examine the witnesses at a preliminary

13 Accordingly, the Ohio Supreme Court erred in concluding

that this case is governed by Barber v. Page (Pet. App. 22).

Barber focused on the threshold requirement that the State

show that it was unable to obtain the witness’s presence at trial

before any prior preliminary hearing testimony is offered—

whether or not it was the subject of cross-examination. 390 U.S.

at 724-725. It expressly left open the possibility that an oppor-

tunity for cross-examination at a preliminary hearing—even if

not exercised— might satisfy the demands of the Confrontation

Clause “where the witness is shown to be actually unavailable,”

finding it unnecessary to reach that question in the case before

it. 390 U.S. at 725-726. And Barber certainly did not reject the

proposition later upheld in California v. Green—that prelimi-

nary hearing testimony subject to actual confrontation may be

introduced at trial when the witness is unavailable.

23

hearing—even if the defendant does not take advan-

tage of it—suffices to afford substantial compliance

with the Confrontation Clause if the government seeks

to introduce an unavailable witness’s preliminary hear-

ing testimony. The narrower question presented on

these facts is whether there has been substantial com-

pliance with the Confrontation Clause when the defend-

ant has availed himself of the opportunity to examine a

witness at some length ai his preliminary hearing, and

has been permitted to do so without any significant

limitation on either the nature or the scope of his

examination. 399 U.S. at 166. Essentially the same

question was posed in California v. Green, where this

Court concluded that an extensive and unrestricted

cross-examination conducted at a preliminary hearing

was not sufficiently different from a cross-examination

conducted at “an actual trial to warrant distinguishing

the two cases for purposes of the Confrontation

Clause.” 399 U.S. at 165. Accordingly, the Court ruled

that the defendant’s cross-examination at the prelimi-

nary hearing afforded substantial compliance with the

Confrontation Clause.

The factors cited by the Court to justify this conclu-

sion in Green are equally persuasive in the instant case.

Just as in Green, supra, 399 U.S. at 165:

{Isaacs’] statement at the preliminary hearing had

already been given under circumstances closely ap-

proximating those that surround the typical trial.

[Isaacs] was under oath; respondent was repre-

sented by counsel * * *; respondent had every op-

portunity to [examine Isaacs] as to [her] statement;

and the proceedings were conducted before a judi-

cial tribunal, equipped to provide a judicial record

of the hearings. [**]

14 As the State points out (Br. 40-41), Ohio’s Rules of Crimi-

na) Procedure provide that a preliminary hearing is to be con-

ducted under the rules of evidence applicable to criminal trials,

24

Since here, as in Green, respondent’s counsel was not

“significantly limited in any way in the scope or nature”

of his examination at the preliminary hearing—and in-

deed respondent has never suggested any line of ques-

tioning that has not been pursued—the admission of

Isaacs’ testimony at trial did not violate the Confronta-

tion Clause; the examination actually conducted at the

preliminary hearing in both Green and this case pro-

vided “substantial compliance with the purposes behind

the [CJonfrontation [Clause].” 399 U.S. at 166.

Neither respondent nor the Ohio Supreme Court has

suggested any reason why this Court’s analysis in

California v. Green requires re-examination,!® and we

know of none.'*® The Ohio Supreme Court’s opinion,

the “full right of cross-examination.” Ohio R. Crim. P. 5(B) (2),

(3).

The only factor that has been suggested as distinguishing this

case from Green is that in this case respondent was not repre-

sented at the preliminary hearing by “the same counsel in fact

who later represented him at trial.” 399 U.S. at 165. So far as

we know, there has never been any suggestion that re-

spondent’s first attorney did not represent him adequately. He

did not represent respondent at trial because he had in the

interim been appointed to a state judgeship.

**The Ohio Supreme Court read Green narrowly and con-

cluded (Pet. App. 23-24 & n.2) that the portion of the opinion in

question was mere dictum. We disagree. The California Su-

preme Court had held that neither the opportunity for cross-

examination at the preliminary hearing nor the right to cross-

examine the witness at trial regarding his out-of-court state-

ment satisfied the requirements of the Confrontation Clause.

See 399 U.S. at 153. This Court made clear that “the California

court was wrong on both counts,” 399 U.S. at 153, and ad-

dressed both issues as alternative holdings. 399 U.S. at 164,

165. But more importantly, even if the relevant portion of the

Court’s opinion were viewed as dictum, respondent has shown

no reason why that analysis is not correct and should not be

followed here.

16It is worthy of note that, despite the Ohio court’s sugges-

tion that the discussion in Green is dictum, the Green analysis

25

quoting the dissenting opinion in Green, emphasizes the

difference between the ultimate issue at trial—guilt be-

yond a reasonable doubt—and the narrower probable

cause issue at the preliminary hearing stage (Pet. App.

21-22). The Ohio Supreme Court reasoned that defense

counsel has little incentive to cross-examine witnesses

at the preliminary hearing stage, since the issue then is

only probable cause. But whatever the factors that may

frequently cause defense counsel to forego examination

of the adverse witnesses at a preliminary hearing, when

the defendant does avail himself of the opportunity to

confront these witnesses, and he is given a meaningful

has been followed without exception by the lower federal courts

and the state courts in cases involving both preliminary hear-

ings and testimony given in other pretrial hearings. See, e.g.,

Phillips v. Wyrick, 558 F.2d 489, 493-495 (8th Cir. 1977), cert.

denied, 434 U.S. 1088 (1978) (preliminary hearing); United

States v. Lynch, 499 F.2d 1011, 1023 (D.C. Cir. 1974) (same,

but witness found not unavailable); Havey v. Kropp, 458 F.2d

1054, 1056-1057 (6th Cir. 1972) (same); United States v. Bell,

500 F.2d 1287 (2d Cir. 1974) (suppression hearing); United

States v. Harless, 464 F.2d 953 (9th Cir. 1972) (same); United

States v. King, 552 F.2d 833 (9th Cir. 1976), cert. denied, 430

U.S. 966 (1977) (deposition); United States v. Ricketson, 498

F.2d 367, 374 (7th Cir.), cert. denied, 419 U.S. 965 (1974)

(same); United States v. Singleton, 460 F.2d 1148, 1152-1153

(2d Cir. 1972), cert. denied, 410 U.S. 984 (1973) (same); United

States ex rel. Duff v. Zelker, 452 F.2d 1009, 1010-1011 (2d

Cir.), cert. denied, 406 U.S. 932 (1971) (hearing on voluntari-

ness of confessions).

State cases dealing with preliminary hearing testimony gen-

erally reached the same conclusion prior to this Court’s decision

in Green. See, e.g., Commonwealth v. Mustone, 353 Mass. 490,

233 N.E. 1 (1968); State v. Roebuck, 75 Wash. 2d 67, 70, 448

P.2d 934, 937 (1968); State v. Crawley, 242 Ore. 601, 603-607,

410 P.2d 1012, 1014-1015 (1966).

The case cited by the Ohio court (Pet. App. 21) as support for

its argument that a preliminary hearing does not provide a suf-

ficient opportunity for cross-examination, Government of the

Virgin Islands v. Aquino, 378 F.2d 540, 549 (3d Cir. 1967), in

fact followed the accepted rule permitting the introduction at

trial of preliminary hearing testimony.

26

opportunity to do so, the theoretical differences in

motivation have not precluded a finding of substantial

compliance with the confrontation requirement.*7

In our view, the only question where, as here, the

defendant has previously examined the witness whose

preliminary hearing testim_ny is proffered, should be

whether the earlier opportunity to confront the witness

was a meaningful one in light of the circumstances. See

17In a case where the defendant can show that he elected not

to cross-examine a prosecution witness, or that he restricted his

examination because of the nature of the preliminary hearing or

the circumstances of the particular case, he may have a valid

objection to the admission of the witness’s preliminary hearing

testimony. Fed. R. Evid. 804 (b)(1) provides that prior recorded

testimony is admissible only where the defendant “had an op-

portunity and similar motive to develop the testimony by di-

rect, cross, or redirect examination” (emphasis added). As the

Advisory Committee Notes explain (28 U.S.C. App., page 591),

Rule 804 was derived ‘rom the common law rule that former

testimony is admissible only where the parties and the issues

were the same in the prior proceeding, so that the former han-

dling of the witness would be the equivalent of the examination

that would have occurred if the witness had been present at

trial. The Committee concluded (ibid.) that because “identity of

issues is significant only in that it bears on motive and interest

in developing fully the testimony of the witness, expressing the

matter in the latter terms is preferable.”

The Ohio Supreme Court apparently concluded that because

the issue at a preliminary hearing is narrower than that at trial,

the defendant’s “motive” for cross-examination will never be the

same in the two proceedings. Although there are no cases on

point, we do not believe that Rule 804(b)(1) should be given such

a categorical construction. Whatever may be the theoretical

differences in motive in the general run of cases, where, as

here, the defendant conducts an extensive examination at the

preliminary hearing and has no plausible claim that there are

other avenues that he would have explored with the witness at

trial, it is a fair inference that his motive at the preliminary

hearing was the same as it would have been at trial and that the

testimony carries with it sufficient assurance of reliability to

justify its admission under the Rule as well as under the Con-

stitution.

SSR eG REE EOP Tee ee NERO ae SR Rey ee

27

Mancusi v. Stubbs, supra, 408 U.S. at 213. If, for

example, the trial court arbitrarily restricted the scope

of examination at the preliminary hearing, the defend-

ant would have a valid basis for a claim that the con-

frontation afforded him was not adequate.’® But Green

correctly rejected the assumption that simply because

the ultimate issue at a preliminary hearing is not abso-

lutely identical to that at trial, the earlier cross-

examination was necessarily so restricted as to be in-

adequate to satisfy the confrontation requirement. The

proper inquiry is whether the former examination of

the witness was the substantial equivalent of the

examination that would have taken place at trial. Since

respondent’s examination of Isaacs, involving an ob-

vious effort to discredit her adverse testimony, amply

meets these criteria, the introduction of her preliminary

hearing testimony did not violate the Confrontation

Clause.

18The defendant might even seek to show that preliminary

hearings in his jurisdiction are so hurried and perfunctory that a

a defendant may really have iittle or no opportunity to cross-

examine the witnesses against him. See Graham and Letwin,

The Preliminary Hearing in Los Angeles: Some Field Findings

and Legal Policy Observations, 18 U.C.L.A. L. Rev. 635, 657

and n.73 (1971). But it has not been suggested in this case that

defense counsel was prevented either by prevailing practice or

by actions of the court from conducting as thorough an examina-

tion as he desired.

28

CONCLUSION

The judgment of the Supreme Court of Ohio should

be reversed.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

PHILLIP B. HEYMANN

Assistant Attorney General

SARA SUN BEALE

Assistant to the Solicitor General

JEROME M. FEIT

KATHLEEN A. FELTON

Attorneys

JULY 1979