390 U.S. 719 (1968), 703, Barber v. Page

Docket Nº:No. 703
Citation:390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255
Party Name:Barber v. Page
Case Date:April 23, 1968
Court:United States Supreme Court
 
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Page 719

390 U.S. 719 (1968)

88 S.Ct. 1318, 20 L.Ed.2d 255

Barber

v.

Page

No. 703

United States Supreme Court

April 23, 1968

Argued March 28, 1968

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Syllabus

Petitioner and one Woods were jointly charged with armed robbery. During the preliminary hearing, Woods waived his privilege against self-incrimination and testified, incriminating petitioner. Petitioner's counsel did not cross-examine Woods. When petitioner was tried in Oklahoma seven months later, Woods was in a federal prison in Texas. The State of Oklahoma made no effort to obtain Woods' presence at trial, but introduced, over petitioner's objection on the ground of deprivation of his right to be confronted with the witnesses against him, the transcript of Woods' testimony at the preliminary hearing on the basis that he was out of the State, and thus unavailable to testify. Petitioner was convicted. He sought federal habeas corpus, claiming deprivation of his right of confrontation, but his contention was rejected by the District Court, and the Court of Appeals affirmed.

Held:

1. While there is a traditional exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant, the witness is not "unavailable" for the purposes of that exception unless the prosecutorial authorities have made a good faith effort to obtain his presence at trial. Pp. 722-725.

2. Petitioner's failure to cross-examine at the preliminary hearing did not constitute a waiver of the right of confrontation at the subsequent trial, and even if petitioner had cross-examined the witness at the hearing, he would not have waived his right of confrontation, since it is basically a trial right, and includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. P. 725.

381 F.2d 479, reversed and remanded.

Page 720

MARSHALL, J., lead opinion

MR. JUSTICE MARSHALL delivered the opinion of the Court.

The question presented is 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.

Petitioner and one Woods were jointly charged with the robbery, and at the preliminary hearing were represented by the same retained counsel, a Mr. Parks. During the course of the hearing, Woods agreed to waive his privilege against self-incrimination. Parks then withdrew as Woods' attorney, but continued to represent petitioner. Thereupon Woods proceeded to give testimony that incriminated [88 S.Ct. 1320] petitioner. Parks did not cross-examine Woods, although an attorney for another codefendant did.

By the time petitioner was brought to trial some seven months later, Woods was incarcerated in a federal penitentiary in Texarkana, Texas, about 225 miles from the trial court in Oklahoma. The State proposed to introduce against petitioner the transcript of Woods' testimony at the preliminary hearing on the ground that Woods was unavailable to testify because he was outside the jurisdiction. Petitioner objected to that course on the ground that it would deprive him of his right to be confronted with the witnesses against him. His objection was overruled, and the transcript was admitted and read to the jury, which found him guilty. On appeal,

Page 721

the Oklahoma Court of Criminal Appeals affirmed his conviction. Barber v. State, 388 P.2d 320 (Okla.Crim.App. 1963).

Petitioner then sought federal habeas corpus, claiming that the use of the transcript of Woods' testimony in his state trial deprived him of his federal constitutional right to confrontation in violation of the Sixth and Fourteenth Amendments. His contention was rejected by the District Court and on appeal the Court of Appeals for the Tenth Circuit, one judge dissenting, affirmed. 381 F.2d 479 (1966). We granted certiorari, 389 U.S. 819 (1967), to consider petitioner's denial of confrontation claim, and we reverse.

Many years ago, this Court stated that

[t]he primary object of the [Confrontation Clause of the Sixth Amendment] . . . was to prevent depositions or ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.

Mattox v. United States, 156 U.S. 237, 242-243 (1895). More recently, in holding the Sixth Amendment right of confrontation applicable to the States through the Fourteenth Amendment, this Court said,

There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.

Pointer v. Texas, 380 U.S. 400, 405 (1965). See also Douglas v. Alabama, 380 U.S. 415 (1965).

Page 722

It is true that there has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant. E.g., Mattox v. United States, supra, (witnesses who testified in original trial died prior to the second trial). This exception...

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