Barber v. Page, No. 703

• Court: United States Supreme Court
• Writing for the Court: MARSHALL
• Citation: 20 L.Ed.2d 255,390 U.S. 719,88 S.Ct. 1318
• Decision Date: 23 April 1968
• Docket Number: No. 703
• Parties: Jack Allen BARBER, Petitioner, v. Ray H. PAGE, Warden

390 U.S. 719 88 S.Ct. 1318 20 L.Ed.2d 255 Jack Allen BARBER, Petitioner,

v.

Ray H. PAGE, Warden.

No. 703. Argued March 28, 1968. Decided April 23, 1968.

Ira G. Rothgerber, Jr., Denver, Colo., for petitioner.

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Charles L. Owens, Oklahoma City, Okl., for respondent.

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 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

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the Oklahoma Court of Criminal Appeals affirmed his conviction. Barber v. State, 388 P.2d 320 (Okl.Cr.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, 88 S.Ct. 115, 19 L.Ed.2d 69 (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, 15 S.Ct. 337, 339, 39 L.Ed. 409 (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. State of Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). See also Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).

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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 has been explained as arising from necessity and has been justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement. See 5 Wigmore, Evidence §§ 1395—1396, 1402 (3d ed. 1940); C. McCormick, Evidence §§ 231, 234 (1954).

Here the State argues that the introduction of the transcript is within that exception on the grounds that Woods was outside the jurisdiction and therefore 'unavailable' at the time of trial, and that the right of cross-examination was afforded petitioner at the...