390 U.S. 719 (1968)
Petitioner Barber and one Woods were jointly charged with armed robbery in Oklahoma.1 At the preliminary hearing, they were represented by the same retained counsel, a Mr. Parks.2 Woods agreed to waive his privilege against self-incrimination, after which Parks withdrew as Woods' attorney but continued to represent petitioner.3 Woods then gave testimony that incriminated petitioner, though Parks did not cross-examine him.4
By the time of petitioner's trial some seven months later, Woods was incarcerated in a federal penitentiary in Texarkana, Texas, about 225 miles from the trial court in Oklahoma.5 The State proposed to introduce the transcript of Woods' testimony at the preliminary hearing.6 Petitioner objected on confrontation grounds, but the objection was overruled and the transcript was admitted and read to the jury, which found him guilty.7
On appeal the Oklahoma Court of Criminal Appeals affirmed his conviction.8 Petitioner then sought federal habeas corpus relief, claiming a violation of his federal constitutional right to confrontation.9 His contention was rejected by the District Court, and the Court of Appeals for the Tenth Circuit affirmed.10 The Supreme Court granted certiorari to consider the denial of the confrontation claim.11
Whether petitioner was deprived of his Sixth and Fourteenth Amendment right to be confronted with the witnesses against him at his trial in Oklahoma for armed robbery, at which the principal evidence against him consisted of the reading of a transcript of the preliminary hearing testimony of a witness who at the time of trial was incarcerated in a federal prison in Texas?12
The Confrontation Clause of the Sixth Amendment, made applicable to the states through the Fourteenth Amendment, bars the use of prior testimony in place of live confrontation unless the witness is unavailable and the defendant had an adequate prior opportunity for cross-examination.13 Unavailability requires that prosecutorial authorities make a good-faith effort to secure the witness's presence at trial using available legal mechanisms.14 The confrontation right is fundamentally a trial right that includes both cross-examination and the jury's assessment of demeanor.15
Yes. The state made absolutely no effort to obtain the presence of Woods at trial other than to ascertain that he was in a federal prison outside Oklahoma.16 Writs of habeas corpus ad testificandum were available under 28 U.S.C. § 2241(c)(5) and Bureau of Prisons policy. The state did not pursue them.17
This means the witness was not unavailable under the exception to the confrontation requirement, and the preliminary hearing did not provide a constitutionally adequate substitute for trial confrontation.18
Petitioner was deprived of his Sixth and Fourteenth Amendment right to be confronted with the witnesses against him.19
Related opinions on this issue
Justice Harlan agreed that the State's failure to attempt to obtain the presence of the witness denied petitioner due process.20 He therefore concurred in the opinion of the Court on the premises of his opinion in Pointer v. Texas, 380 U. S.
400, 408.21 Harlan's separate writing emphasizes that the denial of confrontation under these circumstances violated fundamental fairness protected by the Due Process Clause.22 His position aligns with his longstanding view that confrontation claims against state courts are properly grounded in due process rather than direct incorporation of the Sixth Amendment.23