When a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause, U.S. Const. amend VI, normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.
At a preliminary hearing in an Ohio state court for a defendant on charges that he had forged a check in the name of another person and possessed stolen credit cards belonging to that person and his wife, the defendant's appointed counsel called the victims' daughter as the defense's only witness. The daughter testified that she had permitted the defendant to use her apartment, but, despite lengthy questioning by the attorney, she denied giving the defendant the checks and credit cards without informing him that she did not have permission to use them. At the defendant's subsequent trial before a jury in an Ohio Court of Common Pleas, the defendant, represented by new counsel, testified that the daughter had given him her parents' checkbook and credit cards with the understanding that he could use them. The daughter did not appear at trial, even though several subpoenas had been issued to her at her parents' residence during the previous year, and the state, pursuant to a state statute permitting the use of preliminary examination testimony of a witness who could not for any reason be produced at the trial, offered the transcript of her preliminary hearing testimony in rebuttal. The defendant objected to the use of the transcript, asserting a violation of the Sixth Amendment's confrontation clause. After conducting a voir dire hearing as to the transcript's admissibility, it was established that the daughter’s whereabouts could not be found and so, the trial court admitted the transcript into evidence. The appellate court reversed defendant's convictions, and the Ohio State Supreme Court affirmed, on grounds that defendant's rights under the Confrontation Clause were violated.
Were the defendant’s right under the Confrontation Clause violated due to the fact that the preliminary hearing testimony of the witness was used as evidence in the trial?
The Court held that the introduction in evidence of the preliminary hearing testimony of the witness did not violate the confrontation clause of the Sixth Amendment, since the witness' prior testimony bore sufficient indicia of reliability and afforded the trier of fact a satisfactory basis for evaluating the truth of the prior statement, even though defense counsel's questioning of the witness occurred on direct examination--counsel's questioning being replete with leading questions and comporting with the principal purpose of cross-examination to challenge the declarant's truth-telling, perception, memory, and meaning--and even though the witness was not personally available for questioning at trial and the defendant had a different lawyer at trial from the one at the preliminary hearing. Furthermore, the record disclosed that the witness was constitutionally unavailable for purposes of the defendant's trial.