Ohio v. Roberts
(1980)
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Rule of Law:
The Confrontation Clause of the Sixth Amendment does not bar the admission of a prior statement from a declarant who does not appear at a criminal trial if the declarant is unavailable and the statement bears adequate indicia of reliability. Reliability is inferred when the evidence falls within a firmly rooted hearsay exception, such as prior testimony given at a preliminary hearing where the defendant had an adequate opportunity for cross-examination.
Facts:
- Herschel Roberts was arrested for forgery of a check and possession of stolen credit cards belonging to Bernard and Amy Isaacs.
- At a preliminary hearing, Roberts' counsel called the Isaacs' daughter, Anita Isaacs, as a defense witness.
- Roberts' counsel questioned Anita at length, using leading questions to suggest that she had given Roberts the checks and credit cards without permission from her parents.
- Anita denied giving Roberts permission to use the items.
- After the preliminary hearing, Anita left her parents' home in Ohio and her whereabouts became unknown.
- A year before trial, a social worker from San Francisco contacted Anita's parents about a welfare application she had filed, and they spoke to her once by phone through the social worker.
- About seven or eight months before trial, Anita called her parents, stating she was 'traveling' but did not reveal her location.
- At the time of trial, Anita's parents had no knowledge of her location and knew of no way to contact her.
Procedural Posture:
- The State of Ohio prosecuted Herschel Roberts in the Court of Common Pleas of Lake County, Ohio (a trial court).
- The trial court admitted the transcript of Anita Isaacs' preliminary hearing testimony over the defense's Confrontation Clause objection, and a jury convicted Roberts.
- Roberts, as appellant, appealed to the Court of Appeals of Ohio (an intermediate appellate court).
- The Court of Appeals reversed the conviction, holding the prosecution failed to make a 'good-faith effort' to show the witness was unavailable.
- The State of Ohio, as appellant, appealed to the Supreme Court of Ohio (the state's highest court).
- The Supreme Court of Ohio affirmed the reversal on the alternative ground that the mere opportunity to cross-examine at a preliminary hearing did not satisfy the Confrontation Clause.
- The State of Ohio petitioned the United States Supreme Court for a writ of certiorari.
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Issue:
Does the introduction of a witness's preliminary hearing testimony at a defendant's criminal trial, where the witness is unavailable to testify, violate the Confrontation Clause of the Sixth Amendment when the defendant's counsel had an adequate opportunity to cross-examine the witness at the preliminary hearing?
Opinions:
Majority - Justice Blackmun
No. The introduction of the preliminary hearing testimony does not violate the Confrontation Clause because the witness was constitutionally unavailable and her prior testimony bore adequate indicia of reliability due to the prior opportunity for cross-examination. To satisfy the Confrontation Clause when a hearsay declarant is not present for trial, the prosecution must first demonstrate the declarant is unavailable. Here, the prosecution made a 'good-faith effort' by issuing five subpoenas to Anita's last known address and confirming with her mother that her location was unknown; the law does not require the performance of a futile act. Second, the statement must bear adequate 'indicia of reliability.' Reliability can be inferred when the evidence falls within a firmly rooted hearsay exception. Prior testimony given under circumstances closely approximating trial, such as a preliminary hearing where the defendant had an adequate opportunity to cross-examine the witness, satisfies this requirement. Roberts' counsel's questioning of Anita, though formally direct examination, was functionally equivalent to cross-examination because it was under oath, before a judicial tribunal, and involved substantive questioning that challenged her testimony.
Dissenting - Justice Brennan
Yes. The introduction of the testimony violated the Confrontation Clause because the prosecution failed to meet its threshold burden of demonstrating that the witness was unavailable. The State's efforts to locate Anita Isaacs did not constitute a 'good-faith effort.' Merely delivering five subpoenas to an address the prosecution knew the witness no longer occupied was a perfunctory gesture, not a diligent search. The prosecution had promising leads, such as the San Francisco social worker and a potential contact in Tucson, but failed to pursue any of them. The possibility that an investigation might fail does not excuse the constitutional requirement to at least conduct one. Because the State did not establish the impossibility of procuring Anita's attendance, the court should not have even reached the question of the testimony's reliability.
Analysis:
This case established the influential 'Roberts two-part test' for the admissibility of an unavailable witness's prior statements under the Confrontation Clause: 1) unavailability and 2) indicia of reliability. This framework solidified the principle that reliability could be inferred if the statement fell within a 'firmly rooted hearsay exception,' making prior testimony with an opportunity for cross-examination presumptively admissible. This test governed Confrontation Clause jurisprudence for over two decades until it was largely abrogated by Crawford v. Washington (2004), which replaced the 'reliability' prong with an inquiry into whether the statement was 'testimonial.' However, the 'unavailability' analysis from Roberts continues to be relevant.
