Amicus Brief — Ohio v. Roberts

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-756

STATE OF OHIO, Petitioner

v.

HERSCHEL ROBERTS, Respondent

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND

BRIEF FOR OHIO PUBLIC DEFENDERS ASSOCIATION

AS AMICUS CURIAE

STEVEN M. COX

EDWARD C. BARROWS

8 East Long Street

Room 519

Columbus, Ohio 43215

(614) 464-0335

Attorneys for Ohio Public Defenders Association

a

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

The Ohio Public Defenders Association hereby respect-

fully moves the Court for leave to file a brief amicus curiae

in this case in support of the respondent, as provided in

Rule 42 of the Rules of this Court. The consent of the

attorney for the respondent has been obtained. The con-

sent of the attorney for the petitioner was requested but

refused.

The Ohio Public Defenders Association, a non-profit

organization incorporated under the laws of Ohio in 1973,

has as its basic purpose the improvement of indigent

criminal defense in Ohio. Our membership of two hundred

and twenty-four represents all facets of criminal defense

work, and includes county public defenders, private counsel,

law school faculty and law students. The members of the

Association represent clients involved in an estimated

fifty-five percent of all misdemeanor and sixty-five percent

of all felony cases arising annually in Ohio. With a member-

ship comprising such a substantial percentage of the Ohio

criminal bar, the Association is concerned with the case

at bar and all other cases relating to criminal procedure

which affect the rights of criminal defendants.

The Association’s Amicus Committee has filed briefs

in both the Ohio Supreme Court and the United States

District Court, Northern District of Ohio, in other actions

which involved the rights of criminal defendants. The

instant case is of interest to the Association and its mem-

bers since it originally arose in Ohio and directly concerns

tt

an Ohio statute, Section 2945.49 of the Ohio Revised Code,

which authorizes the use at trial of the prior recorded

testimony of an unavailable witness. The Association has

already expressed an interest in the interpretation and

application of this particular statute as is evidenced by

our entry as an amicus curiae in the case of State of Ohio

v. Ricardo Smith, 58 Ohio St. 2d 344, ____N.E. 2d __

(1979). In that case, the Ohio Supreme Court iimited the

use of recorded preliminary hearing testimony of a witness

unavailable at trial to cases where the defendant’s cross-

examination of the witness at the preliminary hearing was

more than brief and ineffective.

Counsel for the respondent has dealt and will deal with

the question of whether the mere opportunity for cross-

examination of a witness at a preliminary hearing is suf-

ficient to satisfy the Confrontation Clause of the Sixth

Amendment to the United States Constitution, when the

recorded preliminary hearing testimony is sought to be

read into evidence, in the absence of the witness, at a

criminal trial. Although the Association is concerned with

the outcome of this question, we feel that this case presents

an opportunity for the Court to address a more compelling

concern regarding the use of recorded preliminary hearing

testimony of an absent witness, the resolution of which

may have a great impact upon the practice of criminal

defense in Ohio and throughout the nation. That concern

is the constitutionality, under the Confrontation Clause

of the Sixth Amendment, of the use at trial of the recorded

testimony of a witness, taken at either a preliminary exami-

nation or a preliminary hearing, regardless of the scope

of cross-examination at the earlier hearing, when the

ill

witness is, for any reason, unable to appear and testify

at the subsequent trial.

Section 2945.49 of the Ohio Revised Code authorizes the

use of testimony “taken at an examination or a preliminary

hearing at which the defendant is present,” along with

testimony taken at a former trial of the same case or at

a deposition arranged by either party, at a later trial of

the defendant, whenever the witness has died, become in-

capacitated, or is otherwise unavailable. This statutory

provision was relied upon in this case to secure the ad-

mittance of the recorded preliminary hearing testimony

at issue. In Barber v. Page, 390 U.S. 719, 725 (1968), this

Court stated that: “[t]he 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.” The Association feels that based upon

the significant differences between preliminary hearings

and trials and depositions, which directly affect the scope

and effectiveness of cross-examination, the inclusion of

preliminary examination and preliminary hearing testi-

mony within the purview of Section 2945.49 is violative

of the Confrontation Clause of the Sixth Amendment.

See California v. Green, 399 U.S. 149 (1970) (Brennan, J.,

dissenting). A decision of this Court which has as its basis

the conclusion that there is a constitutional distinction

between the opportunity for cross-examination and actual

cross-examination, in determining the admissibility at

trial of recorded preliminary hearing testimony of an

absent witness, will not go far enough to resolve all of

the constitutional infirmities of Section 2945.49. We

believe that our contribution should assist the Court in

iv

viewing the question here presented in a broader context,

thus ensuring a clearer understanding of the profound

impacts its decision may have upon criminal defense in

Ohio and throughout the country.

For the foregoing reasons, the Ohio Public Defenders

Association respectfully requests that this motion be

granted.

Respectfully submitted, BRIEF OF

OHIO PUBLIC DEFENDERS ASSOCIATION

Steven M. Cox

AS AMICUS CURIAE

8 East Long Street, Room 519

Columbus, Ohio 43215

Attorney for Ohio Public

Defenders Association

* “Gan

;

pee

rs

INDEX

Constitutional Provisions and Statutes Involved ... 1

Citations of Authority

AS Shades CEN Ls6 hs chou eb «s 2

IID eii'l'n Sins ds a'v dvd dpdondontaacs 4

IIE OE AT CRO UEP ooo in cs ccc ccccwescccce 4

I IIE yoo coh ccaysncccdeaddeaas 4

NE Ci uaeereenl ce cbehaubovadiubectes sus 7

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

Sixth Amendment to the United States Constitution:

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 ascertained by law, and to be informed of

the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his

favor; and to have the Assistance of Counsel for his

defense.

Section 2945.49 of the Ohio Revised Code (Page, 1974):

Testimony taken at an examination or a preliminary

hearing at which the defendant is present, or at a

former trial of the cause, or taken by deposition at

the instance of the defendant or the state, may be

used whenever the witness giving such testimony dies,

or cannot for any reason be produced at the trial, or

whenever the witness has, since giving such testimony,

become incapacitated to testify. If such former testi-

mony is contained within a bill of exceptions, or

authenticated transcript of such testimony, it shall

be proven by the bill of exceptions, or transcript,

otherwise by other testimony.

2

CITATIONS OF AUTHORITY

Page

Barber v. Page, 390 U.S. 719, 88 S. Ct. 1318, 20 L. Ed

TESS ee 14, 17, 18,

21, 24, 25

California v. Green, 399 U.S. 149, 90 S. Ct. 1930,

26 L. Ed. 2d 409 C1DTO) .. ccc cccccccecss 16, 17, 25, 26

Clyde Mattox v. United States, 146 U.S. 140, 13S. Ct. 50,

ee Ree Ss OT GANG bik cies icwiGedecss .. 9, 10, 21

Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074,

Ee er ee 21

Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792,

IE 13

Government of the Virgin Islands v. Aquino, 378 F.

Se I wie hi ea bb eed ke xc k accede 25

Holman v. Washington, 364 F. 2d 618 (Sth Cir. 1966) .. 25

Malloy v. Hogan, 378 U.S. 1, 84S. Ct. 1489, 12 L. Ed.

aoe ee i 13

Mattox v. United States, 156 U.S. 237, 15 S. Ct. 337,

PP Ge aia idv madd bdbic abc cccvce 9, 14, 15,

16, 20, 21

Motes v. United States, 178, U.S. 458, 20 S. Ct. 993,

G68, BR, Bh ietie kb boshw owen 11, 22, 23, 24, 25

People v. Green, 70 Cal. 2d 654, 75 Cal. Rptr. 782,

S58, FB a Sas an 86h iho is Cowen bce 25

Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed.

28 Fas CSU s HTS 13, 14, 15, 17,

20, 22, 23

Regina v. Scaife, 2 Den. Cr. C. 281, 285-286, S.C.

17 Q.B. 238, 5 Cox Cr. C. 243 (1851) ...........000. 11

Rule 5(B)(1) of the Ohio Criminal Rules ........... 18, 19

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

| ae ee AO NGSS iin ES EA ee 27

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

Ge CHOOUD vcs bwiwenen awa ¥as sak oitee ok boos. 27, 28

3

State v. Smith, 58 Ohio St. 2d 344, N.E.

2d SAGs sk chee be abinddetatankid eee 29

West v. Louisiana, 194 U.S. 258, 24 S. Ct. 650, 48 L.

Be, ES CIs obo Cow ak thine sb ce ped acces 11, 12, 13,

14, 15, 22

4

QUESTION PRESENTED

Whether Section 2945.49 of the Ohio Revised Code,

specifically the language which permits the recorded pre-

liminary examination or preliminary hearing testimony

of an unavailable witness to be admitted into evidence

at the trial of a criminal defendant, is unconstitutional

as violative of the Confrontation Clause of the Sixth

Amendment to the United States Constitution.

INTEREST OF AMICUS CURIAE

The Interest of Ohio Public Defenders Association as

amicus curiae is set forth in the Association’s motion for

leave to file this brief amicus, to which motion this brief

is annexed.

SUMMARY OF ARGUMENT

{

A. The Bill of Rights of the United States Constitution

sets forth guarantees made to every citizen for protection from

the sovereign government. The most difficult of these guarantees

to protect have been those which are asserted by citizens charged

with or convicted of crimes. The right of confrontation in all

criminal prosecutions, guaranteed by the Sixth Amendment,

is one of these rights.

B. This Court has recognized several exceptions to the Sixth

Amendment’s confrontation guaranty. Notably, the admissi-

bility of dying declarations has been upheld by this Court, and

the use of recorded trial testimony of a now-deceased witness

at an accused’s second trial has also been approved. These

exceptions have been grounded in public policy or in the neces-

sities of the cause at issue.

5

C. The constitutionality of the admission at an accused’s

trial of an absent witness’ recorded preliminary hearing testi-

mony has not been decided by this Court. The prior case law

supports the proposition that the Confrontation Clause may

be satisfied when the witness is shown by the State to be un-

available to testify at trial and the witness was cross-examined

by defense counsel at the preliminary hearing. This Court has

not, however, relied upon this proposition in a case like the

one at bar: where the witness, whose preliminary hearing testi-

mony was admitted at the respondent's trial, was actually absent

at trial.

D. Section 2945.49 of the Ohio Revised Code should be

interpreted to exclude any use of preliminary hearing testimony

as a substitute for live witness testimony at a criminal trial.

A decision by this Court, which upholds the validity of this

language of Section 2945.49, will likely require defendants to

choose between their right to confrontation and their right

to a preliminary hearing. If defendants waive their preliminary

hearing rights in Ohio, they will lose their right to have a

probable cause determination of their guilt or innocence. If

defendants do not waive their rights to a preliminary hearing,

then these hearings will become mini-trials, as cross-examination

becomes more searching and extensive. Such an exception to

the Confrontation Clause would allow the State to obtain

convictions at the expense of the accused’s basic trial rights

while adding additional burdens to our court system. The

balance here should be struck in favor of the accused.

A. The Sixth Amendment to the United States Constitution

guarantees that a criminal accused shall have the right to

confront the witnesses against him. The object of the Confron-

tation Clause has been viewed by this Court as the prevention

of the use of ex parte affidavits and depositions at the trial

of an accused, in iieu of an actual examination of the witness

by the accused, thus ensuring that the defendant will have

6

examined the witness face-to-face and that the trier of fact

will have the opportunity to view the witness’ demeanor. This

Court has, however, created some exceptions to the literal

reading of the Confrontation Clause. The purported exception

at issue in this case is the admissibility at trial of an absent

witness’ recorded preliminary hearing testimony. Generally,

this Court has appeared to uphold the use at trial of such

recorded testimony, as long as it was established that the

witness was truly unavailable to testify at trial and that the

defendant had the opportunity to cross-examine the witness

at the preliminary hearing. This Court, however, has not

declared, in its prior holdings, that the opportunity for the

accused to cross-examine the witness meant anything less than

actual cross-examinauon. The mere opportunity for cross-

examination therefore does not satisfy the requirements of

the Confrontation Clause.

B. In the present case, the witness, Anita Isaacs, was not

cross-examined by the respondent’s counsel at the preliminary

hearing, as was recognized by the Supreme Court of Ohio.

Ms. Isaacs was called on direct examination by the respondent’s

counsel and was at no time declared by the court to be a hostile

witness. Although “leading” questions were asked of the witness

by the respondent’s counsel, no objections were made by the

petitioner, and the petitioner did not cross-examine Ms. Isaacs.

The form and substance of the counsel for the respondent’s

examination of Ms. Isaacs was that of direct examination.

The absent witness’ recorded preliminary hearing testimony

was admitted into evidence at the respondent’s trial pursuant

to Section 2945.49 of the Ohio Revised Code. The Supreme

Court of Ohio held that, notwithstanding Section 2945.49,

the Confrontation Clause was violated when the recorded

preliminary hearing testimony was admitted, because it was

shown that the witness had not been cross-examined by the

respondent’s counsel at the preliminary hearing. This Court

should not disturb the ruling of the Supreme Court of Ohio,

which correctly interpreted the facts and properly applied the

prevailing case law.

7

ARGUMENT

Proposition of Law One:

OHIO REVISED CODE §2945.49, TO THE EXTENT

THAT IT PURPORTS TO PERMIT THE USE OF PRE-

LIMINARY HEARING TESTIMONY OF AN ABSENT

WITNESS AT A CRIMINAL TRIAL, VIOLATES THE

CONFRONTATION CLAUSE OF THE SIXTH AMEND-

MENT TO THE UNITED STATES CONSTITUTION, AND

SHOULD BE DECLARED INVALID. TO THE EXTENT

THAT IT PURPORTS TO PERMIT THE USE AT TRIAL

OF ANY PRIOR TESTIMONY OTHER THAN WHERE

THE WITNESS IS DEAD, INSANE, OR DISABLED, OR

WHERE THE DEFENDANT HAS PROCURED THE WIT-

NESS ABSENCE, OHIO REVISED CODE §2945.49 IS ALSO

INVALID.

A. The Right to Confrontation

The Bill of Rights was appended to the United States Cen-

stitution in 1791, to set forth explicitly the guarantees made

to every citizen for protection from the sovereign, in this case,

the United States Government. Characteristic of the suspicion

of government which permeates the basic document, as embodied

in the elaborate system of checks and balances contained therein,

are the prohibitions and entitlements set forth in the first

eight amendments. The proponents of the amendments knew

that the United States Government, although a government of

laws, would be administered by imperfect men and women.

Therefore, it was insufficient to leave to common understanding

the various freedoms and rights which had been wrested at

great cost from despots, ancient and modern. They determined

to commit their common understanding to writing, so that

those who followed could be constantly reminded of the necessity

for citizens to remain ever watchful lest their hard-won rights

and freedoms be eroded.

The most difficult of these rights for citizens to protect and

defend have been the rights which, because of their very nature,

lO =

8

are most frequently asserted by those charged with or convicted

of crimes, and rarely needed by a majority of the citizenry. Those

who have done no wrong need not fear searches of their persons,

houses, papers, and effects, since the fruits of such searches

would not incriminate them. Innocent citizens need never

exercise their rights to silence since, having done no wrong,

they have nothing to hide from the authorities. Perhaps most

difficult of all for the citizen who expects never. to have to

undergo a criminal trial, is the protection and defense of the

trial rights guaranteed by the Sixth Amendment.

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 ascertained 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 witnesses in his favor, and to have

the assistance of counsel for his defense.!

The language of the Sixth Amendment is plain and straight

forward, and at this late date, almost all of its provisions are

given full effect throughout the United States. In many jurisdic-

tions, speedy trials are statutorily ensured by providing for

dismissal of charges if the defendant is not brought to trial

within a specified period of time. While the size of juries required

by the Sixth Amendment has not been finally determined, the

right to a jury trial in serious criminal cases has been firmly

established. Compulsory process, within reason,. is available

to all criminal defendants. And the right to counsel, as this

Court well knows, has been extended to sities: every stage

of criminal proceedings.

The right to confrontation, however, has not fared so well,

for a variety of reasons. The right of confrontation is analogous

to the evidentiary rule prohibiting hearsay. Designed to ensure,

' United States Constitution, Amend. VI.

9

under an adversary system, the reliability of testimonial

evidence by subjecting such evidence to cross-examination

before the trier of fact, the hearsay rule has become, through

the years, riddled with exceptions. Of course, the exceptions

are usually grounded in public policy, and the reliability of

the out-of-court statements is said to be guaranteed by various

factors. So it has been with the Sixth Amendment’s confron-

tation clause.

B. The Exceptions

The necessity for the use of dying declarations in criminal

trials was examined by this Court in the case of Clyde Mattox

v. United States.2 Even though the particular question was

whether the defendant was entitled to elicit testimony with

respect to dying declarations on his behalf, and, consequently,

no Sixth Amendment objection was raised in the case, the Court’s

discussion makes clear its willingness to except such statements

from the hearsay prohibition, and by inference, from the Sixth

Amendment’s confrontation guarantee. This is so in spite of

recognition by the Court that such statements, by their very

nature, are made out of court, are not under oath, and are not

subject to cross-examination.

After the reversal of conviction in Clyde Mattox, the defendant

suffered a second conviction. At his second trial, the transcribed

testimony of two of the government’s witnesses at the first

trial was allowed into evidence against him, since both witnesses

had died between the two trials. The case was again pursued to

this Court which, in Mattox v. United States, had occasion

to directly examine the question of whether such a procedure

is violative of the Sixth Amendment confrontation right.

2 146 U.S. 140, 13 S. Ct. 50, 36 L. Ed. 917 (1892).

3 156 U.S. 237, 15 S. Ct. 337, 39 L. Ed. 409 (1895).

10

The primary object of the constitutional provision

in question was to prevent depositions or ex parte

affidavits, such as were sometimes admitted in civil cases,

being used against the prisoner in lieu of a personal

examination and cross-examination of the witness 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 the personal presence of the witness before the jury

which the law has designed for his protection. But general

rules of law of this kind, however, beneficent in their

operation and valuable to the accused, must occasionally

give way to considerations of public policy and the

necessities of the case. 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 constitu-

tional 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

benefit may be preserved to the accused.4

As in the Clyde Mattox case, the death of a witness gives rise

to a special set of circumstances whereby introduction of out-of-

court statements, while clearly violative of the confrontation

right, is nevertheless upheld on policy grounds based on other

indicia of reliability and balancing of the interests of the accused

with those of society.

4 156 U.S. at 242-243.

C. The Use of Preliminary Hearing Testimony

To the extent that preliminary hearing testimony is now

permitted to be introduced at trial in the absence of the witness,

this “exception” to the confrontation clause has grown over

the years, not as a result of affirmative decision and rational

choice by this or any other court, but almost as a matter of

unstated assumption. One of the earliest cases in which this

Court addressed itself to the question is that of Motes v.

United States.5 Mr. Justice Harlan, for a unanimous Court,

cites at length from Regina v. Scaife for the apparent proposi-

tion that only three circumstances would justify the use at trial

of the deposition, taken before magistrates, of the absent

witness: 1) the witness has died, 2) the absence of the witness

was procured by the accused, and 3) the witness is so ill as to

be unable to travel. in Motes, since there was absolutely no

showing thgt the absence of the witness had been procured by

the accused, and since the witness had been seen in the court

house within an hour of the commencement of trial, use of

the transcript of his testimony given at the preliminary trial

of the case was held to be barred by the Confrontation Clause.

The fact that the defendants had the opportunity to, and did,

in fact, cross-examine the witness at the preliminary trial, played

no part in the Court’s decision.

The limited exceptions to the Confrontation Clause, referred

to in this Court’s opinion in the Motes’ case, were pointedly

not at issue when the Court decided the case of West v. Louisi-

ana*. In the words of Mr. Justic Peckham,

° 178 U.S. 458, 20 S. Ct. 993, 44 L. Ed. 1150 (1900).

* 2 Den. Cr. C. 281, 285-286, S.C. 17 Q.B. 238, 5 Cox Cr. C. 243 (1851).

? Supra, Note 5.

* 194 U.S. 258, 24 S. Ct. 650, 48 L. Ed. 965 (1904).

——s

12

As the Sixth Amendment does not apply to the state

courts, the question as to what is required under its

provisions in order to preserve the right to be confronted

with the witness is eliminated from any inquiry by this

court in this case.°

Because the question of the admissibility of the absent witness’

preliminary hearing testimony had been decided by the Louisiana

Supreme Court, interpreting its own constitution and statutes,

this Court concluded that the state of the law in Louisiana on

this issue did not present a federal question. Its inquiry was

limited to determining whether the practice complained of

violated the defendants’ due process rights under the Fourteenth

Amendment. Since the Sixth Amendment had not been made

applicable to the states, the Court concluded that no federal

right of the defendants had been violated and that they had

been accorded due process of law.

Even though he specifically excluded consideration of the

proper application of the Sixth Amendment Confrontation

Clause from the decision in the case, Mr. Justice Peckham was

at some pains to open the door to consideration of the broad-

ening of exceptions to the confrontation right, should the

proper case arise in a federal prosecution in the future. West

involved a non-resident witness who was permanently absent

from the state, and whom the prosecution was unable to produce.

After listing the undisputed grounds for allowing introduction

of prior recorded testimony at trial in the absence of the witness

(death, insanity, disabling illness, connivance of defendant),

Mr. Justice Peckham suggested, in response to the defendants’

claim that the circumstances in the case would not have con-

stituted an exception to the confrontation right at common law,

that there is a split in authority on this question.'° After citing

several previous decisions of this Court, none of which went

so far as to permit the former testimony of witnesses who were

9 Id. at 264.

10 Jd. at 262.

13

merely unavailable at trial, he somewhat gratuitously concludes

that “in not one of these cases was it held that, under facts such

as were proved in this case, there wguld have been a violation

of the Constitution in admitting the deposition in evidence.”!!

To the extent that it held that the Sixth Amendment did not

apply in state court prosecutions, West was overruled by this

Court’s decision in the case of Pointer v. Texas. But apart

from the declaration that confrontation and the right to cross-

examination are fundamental rights applicable to the states

through the Fourteenth Amendment,'? Pointer is, in: essence,

a right to counsel case, following hard on the heels of Gideon

v. Wainwright'* and Malloy v. Hogan's. Mr. Justice Black

framed the question for the Court’s decision as follows:

. . . petitioner’s objection is based not so much on

the fact that he had no lawyer when Phillips made his

statement at the preliminary hearing, as on the fact that

use of the transcript of that statement at the trial denied

petitioner any opportunity to have the benefit of counsel's

cross-examination of the principle witness against him. '®

(emphasis added)

His conclusion answers the question in the same right-to-counsel

terms:

Because the transcript of Phillips’ statement offered

against petitioner at his trial had not been taken at a

time and under circumstances affording petitioner through

counsel an adequate opportunity to cross-€xamine

Phillips. . . . use of the transcript to convict petitioner

denied him a constitutional right. . . .'’ (emphasis added)

'! Id. at 265-266.

'2 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).

13 Jd. at 403.

4 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).

'S 378 U.S. 1, 84S. Ct. 1489, 12 L. Ed. 2d 633 (1964).

© 380 U.S. at 403.

17 Id. at 407-408.

14

In Pointer, Phillips, the absent witness, had moved from Texas

to California some time before the trial, and did not intend to

return. Without ever deciding the issue, in this or any previous

case, the Court seems to assume that this “unavailability” of

the witness would justify the use at trial of the witness’ pre-

liminary hearing testimony, if cross-examination through

counsel had been available at that hearing. Indeed, Mr. Justice

Black goes so far as to state at one point, that:

The case before us would be quite a different one had

Phillips’ statement been taken at a full-fledged hearing

at which petitioner had been represented by counsel who

had been given a complete and adequate opportunity to

cross-examine, '8

thus nudging a little wider the door opened by Mr. Justice

Peckham in the West'® case.

The practice of assuming, without deciding, the existence of

a “mere unavailability” exception to the Confrontation Clause

was continued, although in a somewhat muted fashion, in this

Court’s decision in Barber v. Page. The principal evidence

against the defendant at his trial was the preliminary hearing

transcript of a co-defendant’s testimony. The co-defendant

was incarcerated in another state at the time of trial, and the

prosecution made no affirmative effort to secure his presence

to testify. The holding of the case is that: “a witness is not

‘unavailable’ for purposes of the [‘mere unavailability’] exception

to the confrontation requirement unless the prosecutorial

authorities have made a good-faith effort to obtain his presence

at trial.”2! But Mr. Justice Marshall’s treatment of the “mere

unavailability” exception is very interesting. After first hearken-

ing back to Mattox”? for the proposition that confrontation

'8 Jd. at 407.

'9 Supra, Note 8.

% 390 U.S. 719, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968).

21 390 U.S. at 724-725.

22 Supra, Note 3.

15

guarantees both the opportunity of “testing the recollection

and sifting the conscience of the witness,”?> and Pointer’ for

the proposition that “the right of confrontation and cross-

examination is an essential and furdamental requirement for

the kind of fair trial which is this country’s constitutional goal,”?5

he presents a short discussion concerning exceptions to the

confrontation right. The only example cited of such as exception

is Mattox (the witness died between first and second trials;

testimony was given at trial rather than preliminary hearing).

The term “substantial compliance” makes its first appearance

in this Court’s decision, being drawn from treatises on the law

of evidence?*. The Court acknowledges that the same treatises

“have heretofore assumed that the mere absence of a witness

from the jurisdiction was sufficient ground for dispensing with

confrontation. . .”2? But the Uniform Act To Secure the

Attendance of Witnesses from Without a State in Criminal

Proceedings, along with the availability of writ of habeas corpus

ad testificandum, have “largely deprived [the ‘mere unavaila-

bility’ exception] of any continuing validity in the criminal

law.”28 But after seeming thus to have begun closing the door

first opened in West,?? Mr. Justice Marshall, in the penuitimate

paragraph of the opinion, again invites further use and applica-

tion of this exception which has been largely deprived of validity:

23 390 U.S. at 721, quoting Mattox v. United States, supra, 156 U.S. at

242-243.

24 Supra, Note 12.

25 390 U.S. at 721, quoting Pointer v. Texas, supra, 380 U.S. at 405.

% See 390 U.S. at 722.

27 Id. at 723.

8 Id.

2% Supra, Note 8.

16

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 con-

frontation clause where the witness is shown to be actually

unavailable, this is not, as we have pointed out, such

a case.30

Once again, the Court suggested, but did not decide, that use

of preliminary hearing transcripts at trial, in place of an absent

witness, satisfies the confrontation requirement of the Sixth

Amendment.

The Court’s opinion in the case of California v. Green?! amply

displays the danger involved in a century-long unstated process

of expansion of the confrontation exception. Since the case

involved introduction of prior testimony and statements of

a witness who was, in fact, present at trial, there was no

necessity to address the question which the Court must decide

in this case: whether preliminary hearing testimony may be

introduced at trial where the witness is absent. Nevertheless,

Mr. Justice White took the opportunity to examine the state of

the law on this issue by way of comparison with the situation

which was, in fact, presented by the case. Mr. Justice White

reasoned that since the Court would probably find the pre-

liminary hearing testimony admissible if the witness was absent,

it surely could do no less when the witness was present. The

Court cites Mattox? for the proposition that it “long ago held

that admitting prior testimony of an unavailable witness does

not violate the Confrontation Clause.”33 Of course Mattox

involved a dead witness, whose prior testimony was given at a

previous trial of the same case as opposed to the preliminary

3% 390 U.S. at 725-726.

31 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970).

32 Supra, Note 3.

33 399 U.S. at 165.

17

hearing testimony of a witness who is mere!y unavailable. The

Court saw no significant difference between the preliminary

hearing and the trial in Green. This conclusion is buttressed

by the door-opening dictum from Pointer,™ cited above, to

the effect that different facts wouid make a different case.

Overlooked is the fact that, in addition to being dictum, the

quoted portion of Pointer has at least as much to do with the

right to counsel as with the right to confrontation. Finally,

ignoring the criticism of the “mere unavailability” exception

found in Barber v. Page,}> Mr. Justice Stewart goes directly

to the door-opening paragraph quoted above to support the

contention that use at trial of preliminary hearing testimony

= an absent witness satisfies the demands of the confrontation

clause.

D. The Use of Preliminary Hearing Testimony Under

Section 2945.49 of the Ohio Revised Code.

At common law, and in the early confrontation cases decided

by this Court, there appear to have been several common

exceptions to the confrontation requirement. When a witness

was dead, insane, or too sick to attend the trial, prior testimony

or a dying declaration could be introduced against the defendant

at trial. Also, if the accused was responsible for the failure of

the witness to appear, he could hardly be heard to complain

about the violation of his right to confrontation. It was never

argued on behalf of these exceptions that they satisfied the

confrontation requirement; rather, they were rooted in public

policy and a balancing of the trial rights of defendants with

the interests of the public in the administration of justice. It

is only as the Court, by implication, has considered further

exceptions to the confrontation requirement that it has become

necessary to speak in terms of “substantial compliance” and

“indicia of reliability”.

34 Supra, Note 12.

35 Supra, Note 20.

2 a ee es ee ee EN ACN Tg ee RS I Pe eT ees EP Pins OF ear MTL ee Senn RRO en a OT Eee ees See

18

The proposed exception now before this Court with respect

to the use of preliminary hearing testimony fits into this category

of exceptions. It cannot be argued for on the basis of public

policy, for what public policy is advanced by eroding the very

basis of the adversary system, the right of accused persons to

confront the witnesses against them? Several of the cases have

spoken of confrontation as a trial right,> implying or stating

that, in addition to providing the opportunity for cross-examin-

ing the witness, the Confrontation Clause also contemplates

observation of the demeanor of the witness by the trier of fact,

for the purposes of assessing the credibility of the witness.

The opportunity for this assessment is lost in any case where

the witness’ testimony is presented by reading a transcript in

the absence of the witness. 3

In Ohio, a defendant has a right to a preliminary hearing, to

establish probable cause to hold him to answer a felony charge.°’

He may choose to waive this right for various tactical reasons.

A decision by this Court that preliminary hearing testimony

may be used against an accused at trial, in the absence of the

witness, will likely forée each defendant to balance his right

to a preliminary hearing against the right of confrontation at

trial. By waiving his right to a preliminary hearing, the accused

will ensure that there will be no recorded hearing testimony

to be used against him at trial, in the event a witness does not

appear. However, the accused will then lose his right to have

the State establish that there is sufficient evidence to warrant

his case being bound-over to the common pleas court. He will

give up an opportunity, before trial, to learn the identity of

the witnesses against him and the nature of their testimony.

Preliminary hearings are also discovery devices for both the

defense and the prosecution.

By not waiving his right to a preliminary hearing, the de-

fendant will necessarily be put to the task of cross-examining,

% E.g. Barber v. Page, supra.

37 See Rule 5(B)(1) of the Ohio Rules of Criminal Procedure.

19

to the fullest extent possible, each witness that testifies against

him, to guard against the possible absence of a witness at trial.

The apprehension that a witness’ recorded testimony at the

hearing may be admitted into evidence at trial will undoubtedly

cause the defendant to approach the hearing as a mini-trial

and cross-examine each witness extensively. In Ohio, a pre-

liminary hearing must be held within five days of an arrest or

service of summons, if the defendant is in custody, and within

fifteen days of the same, if the defendant is not in custody.38

Because there is generally little time for counsel to prepare for

a preliminary hearing, the need for the proper preparation of

extensive, searching cross-examination will prompt defense

counsel to seek continuances of the preliminary hearing. More

requests for continuances and longer preliminary hearings will

result in placing heavier burdens upon the dockets of our already

overworked municipal courts.

As concerned as society is with the apprehension and con-

viction of wrongdoers, the Court should resist the temptation

to make the task of the state in securing convictions easier

either at the expense of basic trial rights or at the expense of

our over-burdened court system. The statute must be interpreted

to exclude any use of preliminary hearing testimony as a sub-

stitute for live witness testimony at a criminal trial. To hold

otherwise would be to undermine hundreds of years of common

law tradition, and the intentions of the authors of the Bill of

Rights and inevitably to force criminal defendants in Ohio

to choose between their right to a preliminary hearing and

their right of confrontation.

Proposition of Law Two:

THE CONFRONTATION CLAUSE OF THE SIXTH

AMENDMENT IS VIOLATED WHEN THE RECORDED

HEARING TESTIMONY OF AN UNAVAILABLE WIT-

NESS, NOT SUBJECT TO ACTUAL CROSS-EXAMINA-

TION AT THE PRELIMINARY HEARING, IS ADMITTED

INTO EVIDENCE AT AN ACCUSED’S TRIAL.

38 Id.

20

A. The case law supports the proposition that the mere

opportunity for cross-examination of the witness at the pre-

liminary hearing does not satisfy the Confrontation Clause.

The Sixth Amendment to the United States Constitution states

in part that: “[ijn all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against

him. . .” This guaranty of the Sixth Amendment, referred to

as the Confrontation Clause, was held to be applicable to the

states, by virtue of the Fourteenth Amendment, in Pointer v.

Texas.*° In Pointer, supra, this Court declared that: “[t]here are

few subjects, perhaps, upon which this Court and other courts

have been more nearly unanimous than in their expressions of

belief that the right of confrontation and cross-examination

is an essential and fundamental requirement for the kind of

fair trial which is this country’s constitutional goal.”4

In 1895, this Court, in Mattox v. United States,*' discussed

the nature and purpose of the Confrontation Clause, concluding

that:

“(t]he primary object of the [Confrontation Clause of

the Sixth Amendment] was to prevent depositions or

ex parte affidavits. . . being used against the prisoner

in lieu of a personal examination and cross-examination

of the witness in which the accused has the opportunity,

not only of testing the recollection and sifting the con-

science 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.”42

3% Supra, Note 12.

4 380 U.S. at 405.

4! Supra, Note 3.

42 156 U.S. at 242-243.

21

In a more recent decision, this Court reiterated the view ex-

pressed in Mattox, supra, regarding the purpose of the Con-

frontation Clause, by stating, in Barber v. Page,*} that: “{t]he

right of 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.”“ These cases recognize

that the Confrontation Clause, literally read, requires, at a

minimum, the presence of adverse witnesses at the trial of the

accused and the opportunity for the accused to examine the

witnesses face-to-face, in the presence of the trial factfinder.

However, this Court and other courts have created exceptions

to the literal reading of the Confrontation Clause, based upon

considerations of public policy and necessity, in cases in which

a witness is for some reason unavailable to testify at the trial

of the accused. In Clyde Mattox v. United States,*5 this Court

upheld, as a matter of necessity, the admissibility of dying

declarations against an accused in a homicide case. In Mattox

v. United States,“ this Court held that the Confrontation Clause

was not violated by the admission of a deceased witness’ testi-

mony, taken at a former trial, at the second trial of the criminal

defendant. In so holding, the Court stated that: “[t]he substance

of the constitutional protection [of the Confrontation Clause]

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.”*’ Therefore, as long as the accused

was able to cross-examine the witness at the previous trial, the

Court decided that the Confrontation Clause was satisfied and

that the prior testimony was admissible.

43 Supra, Note 20.

“4 390 U.S. at 725. See aiso Douglas v. Alabama, 380 U.S. 415, 85 S. Ct.

1074, 13 L. Ed. 2d 934 (1965).

45 Supra, Note 2.

“ Supra, Note 3.

4” 156 U.S. at 245.

22

Later, this Court was faced with the question of whether it

made any difference under the Confrontation Clause that the

prior testimony of an unavailable witness, sought to be admitted

at the trial of an accused, was taken at a preliminary hearing

instead of a former trial. In Motes v. United States,* this Court

held that the defendants’ rights of confrontation had been

violated by the admission at their trial of a witness’ recorded

preliminary hearing testimony, when the witness’ unavailability

was due to the negligence of the accused.*?

Four years later in 1904, however, in West v. Louisiana,® this

Court concluded that the admission of a deposition of an un-

available witness’ preliminary hearing testimony at the de-

fendant’s trial was not violative of the Due Process Clause of

the Fourteenth Amendment. The thrust of the decision was that

the Due Process Clause did not prohibit the State of Louisiana

from extending the common law rule and permitting the use

at trial of the prior recorded testimony of a witness, who was

permanently absent from the jurisdiction once he had been

confronted by the defendant.5! The Court spoke in terms of the

“opportunity” for cross-examination as being a sufficient predi-

cate for the recorded testimony’s admissibility at trial. The

defendant in West, supra, however, had more than the “oppor-

tunity” to cross-examine the witness at the preliminary hearing:

the defendant’s counsel had actually cross-examined the witness

at the prior hearing. Thus, after West, supra, it is reasonable

to conclude that the requirements of the Confrontation Clause

were deemed to be satisfied only when it was shown that the

4 Supra, Note S.

49 The facts in Motes v. United States, supra, revealed that the counsel for

four of the defendants had actually cross-examined the witness at the pre-

liminary hearing.

© Supra, Note 8.

51 The Court in West v. Louisiana, supra, refused to consider the Sixth

Amendment claim raised by the defendant-appellant, holding that the Sixth

Amendment was not applicable to state proceedings. Howeyer, the Court,

in Pointer v. Texas, supra, specifically overruled this interpretation of the

Sixth Amendment.

io

23

witness, whose recorded preliminary hearing testimony was

sought to be admitted at trial, was in fact cross-examined at

the preliminary hearing and was unavailable to testify at trial

for reasons other than the fault of the State.

In Pointer v. Texas, supra, decided by this Court in 1965,

the defendant, although not represented by counsel, did have the

“opportunity” to cross-examine the chief prosecution witness,

the victim of a robbery allegedly committed by the defendant,

at his preliminary hearing, but did not actually cross-examine

the witness. He did, however, attempt to cross-examine some

other witnesses at the hearing. This Court, after holding that

the Confrontation Clause of the Sixth Amendment was appli-

cable to the States, concluded that the defendant's right of

confrontation had been violated. This Court stated that:

This case before us would be quite a different one had

[the witness’] statement been taken at a full-fledged hear-

ing at which [the defendant] had been represented by

counsel who had been given a complete and adequate

opportunity to cross-examine. Compare Motes v. United

States . . 52

This Court in Pointer, supra, thus spoke in terms of the “com-

plete and adequate opportunity” for cross-examination by the

defendant’s counsel. The Court’s language here could be inter-

preted as requiring only that the defendant have the assistance

of counsel at the preliminary hearing and that the counsel have

the opportunity, whether or not actually exercised, to cross-

examine the witness. However, the Court cited to Motes, supra,

as a case in comparison. In Motes, the defendants did have

counsel at the preliminary hearing, at which time the attorney

actually cross-examined the later-unavailable witness. There-

fore, by virtue of the comparisen to Motes, supra, and of the

fact that Pointer was unrepresented by counsel and did not

cross-examine the witness at all, this Court in Pointer, supra,

52 380 U.S. at 407.

24

arguably intended for the words, “complete and adequate

opportunity to cross-examine,” to encompass both the assistance

of counsel and actual cross-examination of the witness at the

preliminary hearing.

In 1968, this Court decided Barber v. Page.*? In Barber, this

Court found that the defendant’s right of confrontation had been

violated by the admission at his trial of the recorded preliminary

hearing testimony of an absent witness, since the State had not

made a good-faith effort to secure the presence of the witness

at trial. This Court went on to state that:

[m]oreover, we would reach the same result on the

facts of this case had [{Barber’s] counsel actually cross-

examined [the witness] at the preliminary hearing. See

Motes v. United States . . .*4

Clearly, this Court felt that it did not have to reach the issue

of whether the mere opportunity for cross-examination or actual

cross-examination was required under the Confrontation Clause,

since the State had not properly established the unavailability

of the witness. The Court, in dictum, does state, however, that:

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 con-

frontation clause where the witness is shown to be

actually unavailable. . .*

Yet, this Court in Barber, supra, did not discuss what was

encompassed by the term, “opportunity”. There was actual

cross-examination of the witness at the preliminary hearing

by the defendants in the three cases cited by this Court in

33 Supra, Note 20.

34 390 U.S. at 725.

58 Jd. at 725-726 (italics added).

25

Barber, supra, as being comparable in result to the decision

reached in Barber.** Barber is, on the whole, not persuasive on

the proposition that the mere opportunity for cross-examination

of the witness at the preliminary hearing satisfies the Confronta-

tion Clause.

Lastly, this Court, in California v. Green,5’ addressed once

again the issue of whether the Confrontation Clause is violated

by the admission into evidence at trial of an unavailable witness’

recorded preliminary hearing testimony. In Green, supra, the

witness was actually present at the defendant's trial, yet he was

uncooperative on the stand and claimed he could not remember

certain details concerning the alleged offense. The prosecution

read parts of the witness’ preliminary hearing testimony into

evidence, for the truth of the matter therein, and the prior

testimony also allegedly “refreshed” the recollection of the

witness.** The California District Court of Appeals reversed

the defendant’s conviction, concluding that his right of con-

frontation had been violated, and the California Supreme Court

affirmed.” This Court reversed, however, finding that the

witness’ preliminary hearing testimony “was admissible as far

as the Constitution is concerned wholly apart from the question

of whether [the defendant-respondent] had an effective oppor-

tunity for confrontation at the subsequent trial. ”6

This Court reasoned that if the witness had died or was other-

wise unavailable at the trial, then “the right of confrontation

[afforded at the preliminary hearing would have provided] . . .

* The Court in Barber v. Page, supra cited to Motes vy. United States, supra,

Holman v. Washington, 364 F. 2d 618 (Sth Cir. 1966), and Government of

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

57 Supra, Note 31.

* Certain prior inconsistent statements allegedly made by the witness were

also admitted as substantive evidence by the trial court. 3

* People v. Green, 70 Cal. 2d 654, 75 Cal. Rptr. 782, 451 P. 2d 422 (1969).

399 U.S. at 165.

26

substantial compliance with the purposes behind the confronta-

tion requirement, as long as the declarant’s [unavailability was]

in no way the fault of the State.”6! This Court refused to hold

otherwise just because the witness actually appeared at the trial.

However, Green, supra, is not authority for the proposition

that the mere opportunity for cross-examination of the witness

at the preliminary hearing satisfies the Confrontation Clause.

The defendant’s counsel in Green extensively cross-examined

the witness at the preliminary hearing. The Court recognized

this fact, and noted that: “[defendant-respondent’s] counsel

does not appear to have been significantly limited in any way

in the scope or nature of his cross-examination of the witness

Porter at the preliminary hearing.”*? This statement by this

Court implies that if the defendant's counsel had been limited,

to a significant extent, in the scope or nature of his cross-

examination, this Court may have reached a different result.

Therefore, although this Court, in Green, supra, allowed the

admission at trial of the “unavailable” witness’ recorded pre-

liminary hearing testimony, Green nevertheless appears to

require, for Confrontation Clause purposes, that the witness be

actually cross-examined by the defendant’s counsel at the

preliminary hearing.

B. In the present case, the witness, whose preliminary hearing

testimony was admitted in her absence at the respondent's trial,

was not cross-examined by the respondent’s. counsel at the

preliminary hearing.

The respondent was arrésted on January 7, 1975, by the

Mentor, Ohio, police and charged with forging a check, in the

name of Bernard Isaacs, and with receiving stolen property,

namely, certain credit cards belonging to Bernard Isaacs and

Mrs. Isaacs. At his preliminary hearing on January 10, 1975,

*! Jd. at 166.

82 Id.

27

the respondent called, as a witness in his behalf, Bernard Isaacs’

daughter, Anita Isaacs. She testified that she knew the re-

spondent, who was the boyfriend of one of her friends, and that

she had let her friend and the respondent use her apartment

while she was on vacation. She also testified that she let the

respondent use her apartment for a few days after she came

back from vacation.

Ms. Isaacs then denied that she had given her parents’ credit

cards to the respondent or that she had talked to the respondent

about letting him use the credit cards to purchase a television

set. Although the respondent’s counsel did ask the witness some

questions at this point which could be characterized as “leading,”

since he was apparently surprised by her testimony, he did not

ask that the witness be declared hostile by the court, and he

did not ask to examine her as if on cross-examination.

The witness, Anita Isaacs, was not cross-examined by the

respondent’s counsel at the preliminary hearing. This fact was

clearly recognized by the Ohio Supreme Court in this case.®?

The witness was called by the respondent’s counsel and ques-

tioned on direct examination. It is true that some of the

questions posed to the witness by the respondent’s counsel

were of a form generally associated with cross-examination.

Yet, the respondent’s counsel did not seek to have the witness

declared hostile, as is his privilege in Ohio,“ nor did he ask

to examine the witness as on cross-examination.

The petitioner did not, at any time, object to the form or

nature of any of the questions asked by the respondent’s counsel.

The petitioner had the opportunity to object to the questions

as he saw fit at the hearing, but instead chose to waive any

objections. The petitioner also chose not to cross-examine the

witness. He should not be heard to complain at this point that

*3 The Ohio Supreme Court declared that: “{iJn the instant cause, of course,

the witness was never cross-examined.” State v. Roberts, 55 Ohio St. 2d 191,

199, 378 N.E. 2d 492 (1978).

* See State v. Parrott, 27 Ohio St. 2d 205, 272 N.E. 3d 112 (1971).

28

the questions asked of the witness by the respondent’s counsel

were somehow improper for or uncharacteristic of direct

examination. It is not exalting form over substance to state

that there was no cross-examination of the witness, Anita

Isaacs, by the counsel for the respondent at the preliminary

hearing. The form and substance of the respondent’s questioning

of the witness at the hearing was that of direct examination.

C. Because the respondent did not in fact cross-examine the

witness, Anita Isaacs, at the preliminary hearing, the admission

of the recorded preliminary hearing testimony of Ms. Isaacs, —

in her absence, at the respondent’s trial violated the Con-

frontation Clause of the Sixth Amendment.

The recorded preliminary hearing testimony of Anita Isaacs,

who was not located by the petitioner to testify at trial, was

admitted into evidence over the respondent’s objection, at the

respondent’s trial. This testimony was admitted by the trial court

pursuant to Section 2945.49 of the Ohio Revised Code, which

allows the use at trial of preliminary hearing testimony when

the witness “cannot for any reason be produced at the trial.”

The respondent was subsequently found guilty of all counts

against him by a jury, and the trial court entered judgment.

The Court of Appeals for Lake County, Ohio, reversed the

respondent’s convictions, finding that the admission of the

prior recorded testimony violated the Confrontation Clause

of the Sixth Amendment. The Court of Appeals based its

decision on the failure of the State to show that it had made

the requisite good-faith effort to secure the presence of the

witness at the respondent’s trial.

The Supreme Court of Ohio affirmed, not on the basis of the

failure of the State to make a good-faith effort to procure the

presence of the witness at trial,® but rather on the basis that:

65 The Ohio Supreme Court, in State v. Roberts, supra, found that: “the

trial judge could properly hold that the witness was unavailable to testify

in person.” 55 Ohio St. 2d at 195.

29

“the mere opportunity to cross-examine at the preliminary

hearing cannot be said to afford confrontation for purposes

of the trial.” The Ohio Supreme Court thus held that the

Confrontation Clause precluded the use of a witness’ recorded

preliminary hearing testimony at a defendant’s trial, notwith-

standing Section 2945.49 of the Ohio Revised Code, where the

witness was not cross-examined by the defendant at the pre-

liminary hearing.

This Court should not disturb the findings of the Ohio

Supreme Court in this case. The Ohio Supreme Court recognized

that the respondent in this case did not in fact cross-examine

the witness and, therefore, properly concluded, based upon

the prior case law, that the mere opportunity for cross-examina-

tion does not satisfy the requirements of the Confrontation

Clause of the Sixth Amendment.°’

CONCLUSION

This Court should hold that Section 2945.49 of the Ohio

Revised Code, to the extent that it permits the’admission into

evidence at a defendant’s trial the recorded preliminary examina-

tion or preliminary hearing testimony of an unavailable witness,

is unconstitutional, as violative of the Confrontation Clause

of the Sixth Amendment to the United States Constitution.

Should this Court decide that Section 2945.49 of the Ohio

Revised Code is not unconstitutional on its face, as it pertains

to the admissibility of recorded preliminary hearing testimony

at a defendant’s trial, this Court should, nevertheless, affirm

% Jd. at 196-197 (italics added).

67 The Ohio Supreme Court, in State v. Smith, 58 Ohio St. 2d 344,

N.E. 2d (1979), broadened its holding in Roberts, supra, to include

the preclusion at trial of an unavailable witness’ recorded preliminary hearing

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

briefly and ineffectively” at the preliminary hearing. 58 Ohio St. 2d at 347.

30

the Ohio Supreme Court’s decision and hold that the admission

at the defendant’s trial in this case of the witness’ recorded

preliminary hearing testimony, absent any cross-examination of

the witness at the hearing, violated the Confrontation Clause

of the Sixth Amendment to the United States Constitution.

Respectfully submitted,

STEVEN M. COX

EDWARD C. BARROWS

8 East Long Street

Room 519

Columbus, Ohio 43215

(614) 464-0335

Attorneys for Ohio Public Defenders Association

32

31 All parties required to be served have been served. Dated

CERTIFICATE OF SERVICE August —_, 1979.

I, Steven M. Cox, a member of the bar of the Supreme

Court of the United States and counsel of record for the Acasa a lc Pb: Defenders Association

Ohio Public Defenders Association, amicus curiae herein, 8 East Long Street, Room 519

hereby certify that on August __, 1979, pursuant to Columbus, Ohio 43215

Rule 33, Rules of the Supreme Court, I served three copies (614) SOe-e2>

of the attached Motion For Leave to File Brief Amicus

Curiae and Brief Amicus Curiae on each of the parties

herein, as follows:

On State of Ohio, petitioner herein, by depositing such

copies in the United States Post Office, Columbus, Ohio,

with first class postage prepaid, properly addressed to the

post office address of John E. Shoop, the above-named

petitioner’s counsel of record, at Lake County Court

House, Painesville, Ohio 44077.

On Herschel Roberts, respondent herein, by depositing

such copies in the United States Post Office, Columbus,

Ohio with first class postage prepaid, properly addressed

to the post office address of Marvin R. Plasco, the above-

named respondent’s counsel of record, at Western Reserve

Law Building, 7556 Mentor Avenue, Mentor, Ohio 44060.

On the Solicitor General of the United States, amicus

curiae herein, by depositing such copies in the United

States Post Office, Columbus, Ohio, with first class postage

prepaid, properly addressed to the post office address of

Wade McCree, the above-named amicus curiae’s counsel

- of record, at the Department of Justice, Washington, D.C.

20530.

IN a