Barber v. Page
390 U.S. 719 (1968)
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Rule of Law:
The Confrontation Clause of the Sixth Amendment requires the prosecution to make a good-faith effort to obtain the presence of a witness before that witness can be declared "unavailable" for the purpose of using their prior testimony at trial. A witness's incarceration in an out-of-state prison does not automatically render them unavailable if the state has legal means to seek their attendance.
Facts:
- Petitioner Barber and one Woods were jointly charged with armed robbery in Oklahoma.
- At their preliminary hearing, Barber and Woods were initially represented by the same retained counsel, Mr. Parks.
- During the hearing, Woods waived his privilege against self-incrimination, and Parks withdrew as his attorney but continued to represent Barber.
- Woods then provided testimony that incriminated Barber.
- Barber's attorney, Parks, did not cross-examine Woods at the preliminary hearing, though another co-defendant's attorney did.
- At the time of Barber's trial seven months later, Woods was incarcerated in a federal penitentiary in Texarkana, Texas, approximately 225 miles from the Oklahoma trial court.
- The State of Oklahoma made no effort to secure Woods' presence at Barber's trial, other than confirming his location.
- The State proposed to read the transcript of Woods' preliminary hearing testimony into evidence at Barber's trial.
Procedural Posture:
- At Barber's criminal trial in an Oklahoma state court, the prosecution introduced a transcript of Woods' preliminary hearing testimony over Barber's objection.
- The jury convicted Barber.
- Barber appealed his conviction to the Oklahoma Court of Criminal Appeals (the state's highest court for criminal cases), which affirmed the conviction.
- Barber filed a petition for a writ of habeas corpus in the U.S. District Court, which rejected his constitutional claim.
- Barber, as the appellant, appealed to the U.S. Court of Appeals for the Tenth Circuit, which affirmed the district court's decision, with the State of Oklahoma as the appellee.
- The U.S. Supreme Court granted certiorari to review the case.
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Issue:
Does the introduction of a witness's preliminary hearing testimony at a criminal trial violate the defendant's Sixth Amendment right to confrontation when the witness is incarcerated in an out-of-state federal prison and the prosecution has made no effort to secure their presence?
Opinions:
Majority - Mr. Justice Marshall
Yes, the introduction of the preliminary hearing testimony under these circumstances violates the defendant's Sixth Amendment right to confrontation. A witness is not "unavailable" for Confrontation Clause purposes unless the prosecutorial authorities have made a good-faith effort to obtain their presence at trial. The historical exception allowing prior testimony requires both a showing of unavailability and a prior opportunity for cross-examination. The court rejected the old theory that a witness's mere absence from the jurisdiction automatically makes them unavailable, noting that increased cooperation between states and the federal government has made securing such witnesses feasible. In this case, the State of Oklahoma could have sought a writ of habeas corpus ad testificandum, as the U.S. Bureau of Prisons has a policy of permitting federal prisoners to testify in state court proceedings. Because the State made absolutely no effort to use available means to secure Woods' presence, he could not be considered unavailable, and admitting the transcript was a constitutional error. The possibility of refusal from federal authorities does not excuse the prosecution from making the request.
Concurring - Mr. Justice Harlan
Yes, the State's failure to attempt to obtain the witness's presence denied the petitioner due process. This concurrence agrees with the Court's judgment but does so based on the reasoning from Justice Harlan's prior opinion in Pointer v. Texas.
Analysis:
This decision significantly redefines the concept of witness "unavailability" under the Confrontation Clause. It moves away from a purely formalistic view (i.e., the witness is outside the court's jurisdiction) to a more practical, diligence-based standard. The ruling establishes an affirmative duty on the prosecution to make a "good-faith effort" to produce a witness, even if that witness is in the custody of another sovereign like the federal government or another state. This holding strengthens defendants' confrontation rights by requiring prosecutors to exhaust reasonable means of securing live testimony before resorting to prior transcripts, thereby ensuring the jury has the opportunity to observe witness demeanor.
