Barber v. Page

Supreme Court of the United States · 1968 · Evidence

EvidenceConfrontation ClauseFormer testimonyWitness unavailabilitySixth AmendmentFourteenth Amendmentconfrontationcross-examination

Facts

At petitioner's Oklahoma armed robbery trial, the State's principal evidence was a transcript of codefendant Woods' testimony from the preliminary hearing. By the time of trial, Woods was incarcerated in a federal prison in Texarkana, Texas, and the State asserted that he was unavailable because he was outside Oklahoma's jurisdiction. Petitioner had not cross-examined Woods at the preliminary hearing, though another codefendant's attorney did. The State made no effort to secure Woods' live testimony at trial beyond determining that he was in federal custody in Texas.

Issue

Whether admitting the transcript of a witness's preliminary-hearing testimony at trial violated petitioner's Sixth and Fourteenth Amendment right to confrontation when the witness was in federal prison in another state and the prosecution made no effort to obtain his presence at trial. Also, whether petitioner's failure to cross-examine the witness at the preliminary hearing waived his confrontation right at trial.

Rule

The Confrontation Clause generally permits use of prior testimony only when the witness is actually unavailable and the defendant previously had an opportunity for cross-examination. A witness is not unavailable for this purpose unless prosecutorial authorities have made a good-faith effort to obtain the witness's presence at trial. Failure to cross-examine at a preliminary hearing does not waive confrontation at trial absent an intentional relinquishment of a known right.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a burglary trial in Kansas City, Missouri, the prosecution seeks to read a transcript of Nina Torres's testimony from a pretrial hearing. By the time of trial, Nina is serving a sentence in a federal prison in Illinois, and the prosecutor simply tells the court that she is outside Missouri and therefore unavailable.

Over the defendant's Sixth Amendment objection, should the transcript be admitted?

Explanation. The majority held that mere absence from the jurisdiction does not establish unavailability. The prosecution must make a good-faith effort to obtain the witness's presence, and that requirement applies even when the witness is in federal custody in another state. Because the prosecutor made no effort beyond identifying the witness's location, admission of the transcript would violate the confrontation right.