448 U.S. 56 (1980)
In January 1975, local police in Lake County, Ohio, arrested Herschel Roberts and charged him with forgery of a check in the name of Bernard Isaacs and with possession of stolen credit cards belonging to Isaacs and his wife Amy.1
A preliminary hearing took place on January 10 in Municipal Court, where the prosecution presented several witnesses including Mr. Isaacs.2 Roberts's appointed counsel called Anita Isaacs, the daughter of the Isaacs, as the defense's sole witness.3 Anita testified that she knew Roberts and had allowed him to use her apartment for several days while she was away, but she denied giving him her parents' checks or credit cards.4 Defense counsel questioned her extensively in an attempt to obtain an admission that she had provided the items without permission, though she maintained her denial, and the prosecutor did not examine her.5
A county grand jury later indicted Roberts for forgery, receiving stolen property, and possession of heroin, after which new counsel was appointed for him.6 Between November 1975 and March 1976, the State issued five subpoenas to Anita at her parents' Ohio residence for four different trial dates, with the last three including instructions that she should call before appearing.7 Anita did not respond to the subpoenas or appear at the March 1976 trial in the Court of Common Pleas.8 At trial, Roberts testified that Anita had given him her parents' checkbook and credit cards with permission to use them.9 The State then offered the transcript of Anita's preliminary hearing testimony pursuant to an Ohio statute allowing use of such testimony when a witness cannot be produced.10
During a voir dire hearing on the transcript's admissibility, Amy Isaacs testified that Anita had left home for Tucson, Arizona, shortly after the preliminary hearing.11 She described limited contacts, including a welfare application in San Francisco about a year before trial that led to one phone call, and another call seven or eight months before trial in which Anita said she was traveling outside Ohio.12 Mrs. Isaacs stated she had no way to reach Anita in an emergency and knew of no one who knew her location.13 The trial court admitted the transcript, and the jury convicted Roberts on all counts.14
The Ohio Court of Appeals reversed the convictions after reviewing the voir dire evidence, concluding that the prosecution had not made a good-faith effort to secure Anita's attendance at trial.15 The Supreme Court of Ohio affirmed the reversal but on different grounds, determining that while Anita was unavailable, the preliminary hearing testimony did not satisfy the requirements for admission under the Confrontation Clause because defense counsel had not actually cross-examined her there.16 The United States Supreme Court granted certiorari to address the constitutional issues raised by the admission of the testimony.17
Whether the preliminary hearing testimony of an unavailable witness bore sufficient indicia of reliability to satisfy the Confrontation Clause?18
The Confrontation Clause does not bar admission of an unavailable witness' statement against a criminal defendant if the statement bears adequate indicia of reliability.19 Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.20 If the evidence does not fall within a firmly rooted hearsay exception, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.21
Yes. The established facts show that Anita Isaacs testified under oath at the preliminary hearing in Municipal Court on January 10.22 Defense counsel called her as the sole defense witness and questioned her at length with leading questions in an attempt to elicit an admission that she had given Roberts the checks and credit cards without permission.23 The proceeding occurred before a judicial tribunal equipped to provide a record, and Anita had every incentive to tell the truth given her relationship to the victims.24
Although the prosecutor did not examine her, the defense questioning challenged her veracity and explored the underlying events in detail, including whether she and Roberts shared an apartment.25
The preliminary hearing testimony bore sufficient indicia of reliability to satisfy the Confrontation Clause.26
Whether the prosecution demonstrated that it made a good-faith effort to secure the attendance of the witness at trial?27
The basic litmus of Sixth Amendment unavailability is established. A witness is not unavailable for purposes of the exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.28 The lengths to which the prosecution must go to produce a witness is a question of reasonableness.29 The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness.30
Yes. The established facts demonstrate that between November 1975 and March 1976 the State issued five separate subpoenas to Anita Isaacs at her parents' Ohio residence for four different trial dates.31 The last three carried a written instruction that Anita should call before appearing.32
At the voir dire hearing Amy Isaacs testified that Anita had left home for Tucson shortly after the preliminary hearing.33 The family had limited contact with her, including one phone call about a welfare application in San Francisco and another call seven or eight months before trial.34 The prosecutor had discussed Anita's whereabouts with her mother four months before trial and learned she was traveling outside Ohio with no known way to reach her.35
The prosecution demonstrated that it made a good-faith effort to secure the attendance of the witness at trial.36
Related opinions on this issue
Joined by Justices Marshall And Stevens
Justice Brennan dissented on the ground that the prosecution failed to meet its burden of establishing Anita Isaacs' unavailability.37 He noted that the State's total effort consisted of the delivery of five subpoenas to her parents' residence, three of which were issued after the authorities had learned that she was no longer living there.38 Brennan argued that the prosecution did nothing to try to make contact with Anita despite knowing four months before trial that she had moved away.39
He concluded that the perfunctory steps could hardly qualify as a good-faith effort.40