ohio roberts argued november decided june respondent preliminary hearing ohio state charges forgery check name one bernard isaacs possession stolen credit cards belonging isaacs wife respondent counsel called witness isaacs daughter testified permitted respondent use apartment several days away however refused admit given respondent checks credit cards without informing permission use respondent counsel ask witness declared hostile place respondent subsequent criminal trial testified daughter given parents checkbook credit cards understanding use daughter failed appear trial despite state issued five separate subpoenas parents residence state offered rebuttal transcript preliminary hearing testimony relying ohio statute permits use testimony witness reason produced trial voir dire hearing admissibility conducted defense objected use transcript violative sixth amendment confrontation clause mother sole witness testified daughter left home soon preliminary hearing year trial san francisco social worker communicated parents daughter welfare application filed last time daughter telephoned seven eight months trial told parents traveling outside ohio reveal mother knew way reach daughter case emergency know anybody knew daughter trial admitted transcript evidence respondent convicted affirming ohio appeals reversal conviction ohio held transcript inadmissible daughter actually preliminary hearing absent trial admission transcript thus violated respondent confrontation right held introduction evidence respondent trial daughter preliminary hearing testimony constitutionally permissible pp hearsay declarant present trial confrontation clause normally requires showing unavailable even statement admissible bears adequate indicia reliability reliability inferred without case evidence falls within firmly rooted hearsay exception cases evidence must excluded least absent showing particularized guarantees trustworthiness cf mancusi stubbs pp daughter prior testimony preliminary hearing bore sufficient indicia reliability cf california green need decided whether green mere opportunity satisfies confrontation clause defense counsel tested daughter testimony equivalent significant questioning replete leading questions clearly partook matter form comported principal purpose challenging daughter veracity regardless state law might formally characterize questioning afforded substantial compliance purposes behind confrontation requirement case distinguished green merely daughter personally available questioning trial respondent different lawyer trial one preliminary hearing moreover case fall among particularized search indicia reliability must made pp facts presented trial ohio correctly concluded daughter unavailability appear trial constitutional sense established pp blackmun delivered opinion burger stewart white powell rehnquist joined brennan filed dissenting opinion marshall stevens joined post john shoop argued cause filed brief petitioner marvin plasco argued cause filed brief respondent solicitor general mccree assistant attorney general heymann sara sun beale jerome feit kathleen felton filed brief amicus curiae urging reversal steven cox filed brief ohio public defenders association amicus curiae urging affirmance justice blackmun delivered opinion case presents issues concerning constitutional propriety introduction evidence preliminary hearing testimony witness produced defendant subsequent state criminal trial local police arrested respondent herschel roberts january lake county ohio roberts charged forgery check name bernard isaacs possession stolen credit cards belonging isaacs wife amy preliminary hearing held municipal january prosecution called several witnesses including isaacs respondent appointed counsel seen isaacs daughter anita courthouse hallway called defense witness anita isaacs testified knew respondent permitted use apartment several days away defense counsel questioned anita length attempted elicit admission given respondent checks credit cards without informing permission use anita however denied respondent attorney ask witness declared hostile request permission place prosecutor question anita county grand jury subsequently indicted respondent forgery receiving stolen property including credit cards possession heroin attorney represented respondent preliminary hearing withdrew upon becoming municipal judge new counsel appointed roberts november march five subpoenas four different trial dates issued anita parents ohio residence last three carried written instruction anita call appearing residence executed telephone appear trial march case went trial jury common pleas respondent took stand testified anita isaacs given parents checkbook credit cards understanding use tr relying ohio rev code ann permits use preliminary examination testimony witness reason produced trial state rebuttal offered transcript anita testimony tr asserting violation confrontation clause indeed unconstitutionality thereunder defense objected use transcript trial conducted voir dire hearing admissibility tr amy isaacs sole witness voir dire questioned prosecutor defense counsel concerning daughter whereabouts anita according mother left home tucson soon preliminary hearing year trial san francisco social worker communication isaacs welfare application anita filed social worker isaacs reached daughter telephone since however anita called parents one time touch two sisters anita called seven eight months trial told parents traveling outside ohio reveal place called isaacs stated knew way reach anita case emergency app know anybody knows trial admitted transcript evidence respondent convicted counts appeals ohio reversed reviewing voir dire concluded prosecution failed make showing effort secure absent witness attendance required barber page noted witness prosecution testify one behalf state determine anita whereabouts anyone exhausted contact san francisco social worker app unavailability established said ad state demonstrated subpoenas never actually served witness unable make contact way witness isaacs voir dire requested defense state done nothing absolutely nothing show anita absent unavailability showed effort made seek whereabouts purpose trial ibid ohio vote affirmed grounds ohio first held appeals erred concluding anita unavailable barber page distinguished case government knew absent witness whereas anita whereabouts entirely unknown ohio trial judge reasonably concluded isaacs voir dire testimony due diligence procured attendance anita isaacs reasonably infer anita left san francisco properly hold witness unavailable testify person nonetheless held transcript inadmissible reasoning normally little incentive witness preliminary hearing ultimate issue probable cause citing dissenting opinion california green held mere opportunity preliminary hearing afford constitutional confrontation purposes trial see ohio syllabus distinguished green ruled admissible preliminary hearing testimony declarant present trial claimed forgetfulness ohio perceived dictum green suggested mere opportunity renders preliminary hearing testimony admissible ohio citing concluded green goes suggest actually conducted preliminary hearing may afford adequate confrontation purposes later trial ohio emphasis original since anita preliminary hearing absent trial introduction transcript testimony held violated respondent confrontation right three dissenting justices ruled test opportunity full complete rather use made opportunity citing allen ohio granted certiorari consider important issues confrontation clause ii called upon consider relationship confrontation clause hearsay rule many exceptions basic rule hearsay course riddled exceptions developed three centuries see cleary mccormick evidence ed mccormick history rule exceptions exceptions vary among jurisdictions number nature detail see fed rules evid specified exceptions every set exceptions seems fit apt description offered years ago crazy quilt made patches cut group paintings cubists futurists surrealists morgan maguire looking backward forward evidence harv rev sixth amendment confrontation clause made applicable fourteenth amendment pointer texas davis alaska provides criminal prosecutions accused shall enjoy right confronted witnesses one read language literally require objection exclusion statement made declarant present trial see mattox nothing directly contrary letter provision question admission dying declarations thus applied clause abrogate virtually every hearsay exception result long rejected unintended extreme historical evidence leaves little doubt however clause intended exclude hearsay see california green nn see also mccormick moreover underlying policies support conclusion emphasized confrontation clause reflects preference confrontation trial primary interest secured provision right douglas alabama short clause envisions personal examination witness accused opportunity testing recollection sifting conscience witness compelling stand face face jury order may look judge demeanor upon stand manner gives testimony whether worthy belief mattox however recognized competing interests closely examined chambers mississippi may warrant dispensing confrontation trial see mattox general rules law kind however beneficent operation valuable accused must occasionally give way considerations public policy necessities case significantly every jurisdiction strong interest effective law enforcement development precise formulation rules evidence applicable criminal proceedings see snyder massachusetts california green concurring opinion series cases sought accommodate competing interests true tradition process gradual building past decisions drawing new experience responding changing conditions sought map theory confrontation clause determine validity hearsay exceptions california green general approach problem discernible confrontation clause operates two separate ways restrict range admissible hearsay first conformance framers preference accusation sixth amendment establishes rule necessity usual case including cases prior occurred prosecution must either produce demonstrate unavailability declarant whose statement wishes use defendant see mancusi stubbs barber page see also motes california green second aspect operates witness shown unavailable reflecting underlying purpose augment accuracy factfinding process ensuring defendant effective means test adverse evidence clause countenances hearsay marked trustworthiness material departure reason general rule snyder massachusetts principle recently formulated mancusi stubbs focus concern insure indicia reliability widely viewed determinative whether statement may placed jury though confrontation declarant dutton evans supra afford trier fact satisfactory basis evaluating truth prior statement california green supra clear statements numerous prior decisions even though witness unavailable prior testimony must bear indicia reliability sum hearsay declarant present trial confrontation clause normally requires showing unavailable even statement admissible bears adequate indicia reliability reliability inferred without case evidence falls within firmly rooted hearsay exception cases evidence must excluded least absent showing particularized guarantees trustworthiness iii turn first aspect confrontation analysis deemed dispositive ohio answered negative whether anita isaacs prior testimony preliminary hearing bore sufficient indicia reliability resolution issue requires careful comparison case california green supra green preliminary hearing youth named porter identified green drug supplier called stand green trial however porter professed lapse memory frustrated attempt adduce live testimony prosecution offered porter prior statements trial judge ruled evidence admissible substantial portions preliminary hearing transcript read jury found error citing established rule prior trial testimony admissible upon retrial declarant becomes unavailable mattox mancusi stubbs recent dicta suggesting admissibility preliminary hearing testimony proper circumstances barber page pointer texas rejected green confrontation clause attack reasoned porter statement preliminary hearing already given circumstances closely approximating surround typical trial porter oath respondent represented counsel counsel fact later represented trial respondent every opportunity porter statement proceedings conducted judicial tribunal equipped provide judicial record hearings passage others green opinion suggest opportunity preliminary hearing even absent actual satisfies confrontation clause yet record showed recognized defense counsel fact porter earlier proceeding thus justice brennan writing dissent conclude erhaps mere opportunity encounter sufficient see note texas rev need decide whether ohio correctly dismissed statements green suggesting mere opportunity rendered prior testimony admissible see westen future confrontation rev issue truly difficult resolve conventional theories confrontation need decide whether de minimis questioning sufficient defense counsel case tested anita testimony equivalent significant counsel questioning clearly partook matter form presentation replete leading questions principal tool hallmark addition counsel questioning comported principal purpose challenge whether declarant sincerely telling believed truth whether declarant accurately perceived remembered matter related whether declarant intended meaning adequately conveyed language employed davenport confrontation clause exception criminal prosecutions functional analysis harv rev anita unwillingness shift blame away respondent became discernible early testimony yet counsel continued explore underlying events detail attempted example establish anita respondent sharing apartment assertion critical respondent defense trial might suggested ulterior personal reasons unfairly casting blame respondent another point directly challenged anita veracity seeking admit given credit cards respondent obtain television anita denied defense counsel elicited fact television owned twenty dollar old model app cf davis alaska respondent argues defense counsel never asked declare anita hostile questioning necessarily occurred direct examination see state minneker ohio however state law might formally characterize questioning anita afforded substantial compliance purposes behind confrontation requirement green less classic although ohio law may authorized objection prosecutor intervention happen green respondent counsel significantly limited way scope nature ibid also unpersuaded green distinguishable ground anita isaacs unlike declarant porter green personally available questioning trial argument ignores language logic green porter statement think admissible trial even porter absence porter actually unavailable case think different result follow witness actually produced finally reject respondent attempt fall back general principles confrontation argument case falls among must undertake particularized search indicia reliability theory factors previously cited absence contact trial presence new attorney lack classic combine considerations uniquely tied anita mandate exclusion statements anita respondent says every reason lie avoid prosecution parental reprobation unknown whereabouts explicable effort avoid punishment perjury given facts prior testimony falls unreliable side excluded making argument respondent effect asks us disassociate preliminary hearing testimony previously subjected previously testimony deemed generally immune subsequent confrontation attack precedent requires us decline invitation green found guarantees trustworthiness accouterments preliminary hearing mention inherent reliability unreliability porter story see also mancusi stubbs sum perceive reason resolve reliability issue differently green since adequate opportunity witness counsel availed opportunity transcript bore sufficient indicia reliability afforded trier fact satisfactory basis evaluating truth prior statement iv holding ohio erred indicia reliability analysis fully dispose case respondent defend judgment alternative ground state contends failed lay proper predicate admission preliminary hearing transcript failure demonstrate anita isaacs available testify person trial justices ohio rejected argument ohio basic litmus sixth amendment unavailability established witness unavailable purposes exception confrontation requirement unless prosecutorial authorities made effort obtain presence trial barber page emphasis added accord mancusi stubbs supra california green berger california although might said prior cases provide refinement statement rule certain general propositions safely emerge law require futile act thus possibility procuring witness exists example witness intervening death good faith demands nothing prosecution possibility albeit remote affirmative measures might produce declarant obligation good faith may demand effectuation lengths prosecution must go produce witness question reasonableness california green concurring opinion citing barber page supra ultimate question whether witness unavailable despite efforts undertaken prior trial locate present witness evidentiary proponents prosecution bears burden establishing predicate facts presented hold trial ohio correctly concluded anita unavailability constitutional sense established voir dire hearing called defense shown four months prior trial prosecutor touch amy isaacs discussed anita whereabouts may appropriately inferred isaacs told prosecutor essentially facts testified voir dire isaacs last heard anita preceding summer san francisco traveling outside ohio isaacs children knew way reach anita even emergency last fact takes added significance recalled anita parents earlier undertaken affirmative efforts reach daughter social worker inquiry came san francisco case parents abandoning interest absent daughter evidence record demonstrates prosecutor issued subpoena anita parents home five separate occasions period several months addition voir dire argument prosecutor stated respondent witnessed attempted locate subpoenaed voir dire witness parents able locate year app given facts prosecution breach duty effort sure prosecutor might tried locate telephone san francisco social worker isaacs spoken many months might undertaken steps effort find anita one hindsight may always think things nevertheless great improbability efforts resulted locating witness led production trial neutralizes intimation concept reasonableness required execution accept general rule course proposition possibility refusal equivalent asking receiving rebuff barber page quoting dissenting opinion case appeals service ineffectiveness five subpoenas conversation anita mother far mere reluctance face possibility refusal investigation real address conversation parent concerned daughter whereabouts barber mancusi stubbs supra cases explored issue constitutional unavailability although factually distinguishable case mancusi provides significant support conclusion effort barber contrary significance insofar record discloses basis concluding anita abroad case factually weaker mancusi stronger mancusi sense ohio prosecutor unlike prosecutor mancusi clear indication anita whereabouts barber found absence effort prosecution made attempt secure presence declarant incarcerated federal penitentiary neighboring state prosecution knew witness procedures existed whereby witness brought trial witness position frustrate efforts secure production anita whereabouts known assurance found place forced return ohio conclude prosecution carried burden demonstrating anita constitutionally unavailable purposes respondent trial judgment ohio reversed case remanded proceedings inconsistent opinion ordered footnotes statute reads testimony taken examination preliminary hearing defendant present former trial cause taken deposition instance defendant state may used whenever witness giving testimony dies reason produced trial whenever witness since giving testimony become incapacitated testify former testimony contained within bill exceptions authenticated transcript testimony shall proven bill exceptions transcript otherwise testimony ohio syllabus rule stated baltimore ohio baillie ohio see zacchini broadcasting caveat implification measure falsification mccormick defines hearsay evidence testimony written evidence statement made statement offered assertion show truth matters asserted therein thus resting value upon credibility asserter see california green literal right confront witness time trial forms core values furthered confrontation clause concurring opinion barber page dowdell see also davis alaska bruton pointer texas california green greatest legal engine ever invented discovery truth quoting wigmore evidence ed course purposes interrelated since one critical goal draw discrediting demeanor viewed factfinder see government virgin islands aquino confrontation trial also operates ensure reliability ways first requirement personal presence undoubtedly makes difficult lie someone particularly person accused present trial weinstein berger weinstein evidence see also note iowa rev second insures witness give statements oath thus impressing seriousness matter guarding lie possibility penalty perjury california green demonstration unavailability however always required dutton evans example found utility trial confrontation remote require prosecution produce seemingly available witness cf read new confrontation hearsay dilemma cal rev term harv rev see pointer texas dying declarations mattox mancusi stubbs testimony comment la rev properly administered business public records exceptions seem among safest hearsay exceptions complexity reconciling confrontation clause hearsay rules triggered outpouring scholarly commentary observers commented without proposing roughly detail basic approach advanced theories shift general mode analysis favor criminal defendant see heller sixth amendment seidelson hearsay exceptions sixth amendment geo rev hearsay excluded except perhaps prosecution shows absolute necessity high degree trustworthiness total absence motive falsify term harv rev note vand rev others advanced theories relax constitutional restrictions use hearsay prosecutor see wigmore evidence chadbourn rev note confrontation test hearsay exceptions uncertain standard rev fixed procedural definition confrontation clause makes actual protection afforded depend upon particular evidence rules force state younger confrontation hearsay look backward peek forward hofstra rev westen future confrontation rev graham confrontation clause hearsay rule forgetful witness texas rev note yale see california green harlan concurring confrontation clause requires prosecution produce available witnesses due process clause bars conviction critical issues trial supported ex parte testimony subjected found reliable trial judge still others proposed theories might either help hurt accused see graham right confrontation hearsay rule sir walter raleigh loses another one crim bull baker right confrontation hearsay rules due process rev comment ucla rev advocating probative quotient comment texas rev finally number commentators sometimes criticizing particular results language past decisions generally agreed present approach see davenport confrontation clause exception criminal prosecutions functional analysis harv rev read new dilemma cal rev traditional approach recognition core constitutional value preserved reluctance make sweeping declarations meaning right best compromise note rev requiring adequate substitute confrontation recognizing substitute fully adequate see also natali green dutton chambers three cases search theory term harv rev notwithstanding divergence critical opinion found commentary suggesting misidentified basic interests accommodated commentator demonstrated prevailing analysis line intentions framers sixth amendment convinced rule perfectly resolve possible problems natali reject invitation overrule jurisprudence reluctance begin new heightened implicit prior rejection principal alternative proposals see dutton evans concurring opinion california green concurring opinion mutually critical character commentary demonstrated success steering middle course among proposed alternatives reasoning appears part iii green section opinion directly relevant issue raised ohio present case appears dismissed part iii dictum ohio suggested part iii properly viewed alternative holding brief amicus curiae either view perhaps diminish green precedential significance accept neither part ii green held use trial witness prior inconsistent statements substantive evidence general rule violate confrontation clause part iii went held porter preliminary hearing testimony admissible wholly apart question whether respondent effective opportunity confrontation subsequent trial porter statement preliminary hearing already given circumstances closely approximating surround typical trial part iv returned general rule articulated part ii contrasted cases declarant testifies trial forgotten underlying events rather claiming recollection advancing inconsistent story noted commentators disagreed whether former class cases brought within general rule articulated part ii given difficulty issue neither briefed addressed remanded case determination whether assertedly inconsistent remarks made porter police officer admitted rule part ii since critical reason disposition porter asserted forgetfulness trial result clearly obtained regard porter preliminary hearing testimony holding part iii follows part iii alternative holding certainly dictum portion opinion alone dispositively established admissibility porter preliminary hearing testimony see also note term harv rev less plainly leading questions asked indicated phrases counsel inquiries fact knowledge correct never gave pack never seen discussed talked never gave need consider whether defense counsel questioning preliminary hearing surmounts inevitably nebulous threshold effectiveness mancusi sure explored extent adequacy counsel earlier proceeding see discussion however must read light fact defendant representation earlier proceeding provided counsel appointed four days prior thereto already held ineffective see unusual circumstances necessary explore character actual ensure adequate opportunity full afforded defendant cf pointer texas hold extraordinary cases inquiry effectiveness required holding every case involving prior testimony requires inquiry frustrate principal objective generally validating exception first place increasing certainty consistency application confrontation clause statement mancusi quoted text indicates propriety approach effect mattox substance constitutional protection preserved prisoner advantage seeing witness face face subjecting ordeal mancusi declarant born sweden become naturalized american citizen returned sweden taken permanent residence country testified stubbs tennessee trial murder kidnaping stubbs convicted obtained habeas corpus relief years later retired tennessee second trial prosecution sent subpoena served texas declarant last place residence country served rejected stubbs assertion prosecution undertaken efforts failing tennessee powerless compel attendance either process established procedures justice brennan justice marshall justice stevens join dissenting concludes anita isaacs testimony respondent preliminary hearing subjected equivalent significant hearsay evidence bore sufficient indicia reliability permit introduction respondent trial without offending confrontation clause sixth amendment recognizes however constitution imposes threshold requirement prosecution must demonstrate unavailability witness whose prerecorded testimony wishes use defendant agree state met burden establishing predicate dissent subjects perhaps upon courts nearly unanimous expressions belief right confrontation essential fundamental requirement kind fair trial country constitutional goal pointer texas accord berger california barber page pointer texas supra stewart concurring kirby historically inclusion confrontation clause bill rights reflected framers conviction defendant must denied opportunity challenge accusers direct encounter trier fact see california green park huff gewin concurring heart constitutional guarantee accused right compel witness stand face face jury order may look judge demeanor upon stand manner gives testimony whether worthy belief mattox see also california green supra harlan concurring present case simply unable conclude prosecution met burden establishing anita isaacs unavailability appears record suggestion record incomplete respect state total effort secure anita attendance respondent trial consisted delivery five subpoenas name parents residence three issued authorities learned longer living least four months trial began prosecution aware anita moved away yet entire interval nothing whatsoever try make contact difficult believe state derelict attempting secure witness presence trial favorable preliminary hearing testimony upon rely event unavailability perfunctory steps state took case hardly qualify effort point fact effort however apparently willing excuse prosecution inaction ground endeavor locate anita isaacs unlikely bear fruit see ante take issue premise underlying reasoning improbability success condone refusal conduct even cursory investigation witness whereabouts also seriously question conclusion bona fide search present case inevitably come naught surely prosecution mere speculation difficulty locating anita isaacs relieve obligation attempt find although rigor undertaking might serve palliate failure prevail justify failure even try barber cautioned possibility refusal equivalent asking receiving rebuff quoting decision aldrich dissenting possibility defeat equivalent pursuing obvious leads returning duty effort meaningless indeed effort required circumstances success guaranteed mancusi stubbs marshall dissenting concur bleak prognosis likelihood procuring anita isaacs attendance respondent trial although anita mother testified current knowledge daughter whereabouts prosecution possessed sufficient information upon least initiated investigation acknowledges one especially promising lead san francisco social worker isaacs spoken anita filed welfare fails mention however prosecution go datum alone example isaacs testified day talked social worker also spoke daughter although isaacs told defense counsel knew way get touch daughter emergency tr response similar question prosecutor indicated someone tucson might able contact anita serve purpose essay exhaustive catalog numerous measures state taken diligent attempt locate anita suffices simply note hindsight see ante permits us envision skilled investigator armed information additional facts brought voir dire might discovered anita whereabouts reasonable effort indeed precisely prosecution absolutely nothing try locate anita hindsight enhance vista investigatory opportunities available state actually attempted find sum said barber page equally germane far record reveals sole reason witness present testify person state attempt seek presence right confrontation may dispensed lightly convinced state failed lay proper foundation admission anita isaacs preliminary hearing testimony occasion consider whether testimony fact subjected full effective adverse questioning whether even conceding adequacy prior significant differences nature objectives preliminary hearing trial preclude substituting confrontation former proceeding constitutional requirement confrontation latter see california green brennan dissenting criminal prosecutions accused shall enjoy right confronted witnesses five subpoenas issued anita parents address showed returns made november december february february respectively course voir dire anita mother prosecutor indicated sometime november isaacs told anita left home see tr ante attempting distinguish case barber page demonstrate reasonableness state conduct assurance anita found place forced return ohio ante located however extremely unlikely anita resisted state efforts secure return uniform act secure attendance witnesses without state criminal proceedings enables prosecuting authorities one state obtain order another state compelling witness appearance testify first state uniform act adopted district columbia panama canal zone puerto rico virgin islands every state union except alabama supp appeals ohio expressed doubt whether isaacs totally forthcoming professing knowledge whereabouts daughter linked respondent criminal involvements isaacs words wants make way forget unpleasantness happened prove something us think future forget past tr see app reservations candidness isaacs testimony provide yet another reason state justified relying solely isaacs representations establish anita unavailability