Master Pre-Crawford Confrontation Clause case establishing the "unavailability + reliability" framework; admission of a witness's preliminary-hearing testimony after a good-faith but unsuccessful effort to secure her presence at trial. with this comprehensive case brief.
Ohio v. Roberts is the Supreme Court’s leading pre-Crawford decision articulating how the Sixth Amendment’s Confrontation Clause applies to hearsay. The Court fashioned a two-step admissibility framework: (1) the prosecution must show the declarant is unavailable despite a good-faith effort to procure attendance; and (2) the out-of-court statement must bear adequate indicia of reliability—presumed if it falls within a firmly rooted hearsay exception, otherwise shown by particularized guarantees of trustworthiness. In Roberts, the statement at issue was prior testimony from a preliminary hearing, given under oath and subject to cross-examination.
For nearly a quarter century, Roberts governed Confrontation Clause analysis and intertwined constitutional law with evidence doctrine. Although Crawford v. Washington (2004) later rejected Roberts’s reliability balancing for testimonial hearsay, Roberts remains essential to understanding the Clause’s evolution, the unavailability requirement, and why prior testimony accompanied by an opportunity for cross-examination generally satisfies the Constitution.
Ohio v. Roberts, 448 U.S. 56 (1980) (U.S. Supreme Court)
The State of Ohio prosecuted Roberts for offenses arising out of his use of another family’s checks and credit card. At a preliminary hearing, a key witness connected to the account (the adult daughter of the account holders) testified under oath and was subject to defense cross-examination. After that proceeding, the witness left Ohio and could not be found for trial. The prosecution issued multiple subpoenas to her last known address (her parents’ residence), conferred repeatedly with her parents, checked leads about her having moved out of state, and otherwise attempted to secure her appearance without success. The trial court deemed the witness unavailable and allowed the State to introduce a transcript of her preliminary-hearing testimony. Roberts was convicted. The Ohio Court of Appeals affirmed, but the Ohio Supreme Court reversed, concluding the Confrontation Clause was violated because the State had not sufficiently demonstrated unavailability and because the hearsay lacked the constitutionally required reliability. The U.S. Supreme Court granted certiorari.
Does the Confrontation Clause permit admission of a witness’s preliminary-hearing testimony at trial when the witness is unavailable despite the State’s good-faith efforts to secure her presence, and when the testimony bears adequate indicia of reliability?
Under the Confrontation Clause, hearsay may be admitted against a criminal defendant if (1) the prosecution demonstrates the declarant’s unavailability after making a good-faith effort to obtain the witness’s presence at trial; and (2) the statement bears adequate indicia of reliability. Reliability is presumed if the statement falls within a firmly rooted hearsay exception; otherwise, it must be supported by particularized guarantees of trustworthiness. Prior testimony given under oath with an opportunity for cross-examination generally satisfies this reliability requirement.
Yes. The witness was constitutionally unavailable because the State made a good-faith effort to secure her presence at trial, and the preliminary-hearing testimony bore adequate indicia of reliability since it was under oath, transcribed, and subject to defense cross-examination. Admission of the transcript did not violate the Confrontation Clause.
The Court began by reaffirming that the Confrontation Clause expresses a preference for face-to-face confrontation, not an absolute bar to the admission of hearsay. Consistent with common-law practice and prior precedent (e.g., Barber v. Page), the State must first show that the declarant is unavailable despite a good-faith effort to obtain the witness’s presence. The record showed multiple subpoenas to the witness’s last known address, repeated contacts with her parents, and pursuit of leads indicating she had left the state. Those efforts satisfied the constitutional standard for unavailability. Turning to reliability, the Court articulated a general framework: hearsay is admissible where it bears adequate indicia of reliability—presumed if it falls within a firmly rooted exception, otherwise demonstrated by particularized guarantees of trustworthiness. The preliminary-hearing testimony here possessed substantial guarantees: it was given under oath, transcribed, and, critically, subjected to defense cross-examination in an adversarial setting with the same defendant and counsel. Although a preliminary hearing focuses on probable cause rather than guilt, the defense had both opportunity and motive to cross-examine the witness about the very events at issue, and in fact did so. Those features sufficed to assure reliability for Confrontation Clause purposes. Accordingly, the Ohio Supreme Court’s contrary conclusion was incorrect as a matter of federal constitutional law.
Ohio v. Roberts set the pre-Crawford template for admitting hearsay against a criminal defendant: prove unavailability and demonstrate reliability. It integrated constitutional confrontation analysis with evidence-law concepts like hearsay exceptions and trustworthiness. Although Crawford later displaced Roberts’s reliability test for testimonial statements, Roberts remains pivotal for understanding (1) the unavailability/good-faith effort requirement; (2) why prior testimony with an opportunity for cross-examination generally satisfies the Clause; and (3) the historical shift from judicial reliability balancing to Crawford’s categorical confrontation requirement for testimonial hearsay.
Roberts required the State to show (1) the declarant is unavailable despite a good-faith effort to procure attendance, and (2) the hearsay bears adequate indicia of reliability. Reliability was presumed for statements within a firmly rooted hearsay exception; otherwise, courts looked for particularized guarantees of trustworthiness based on the statement’s circumstances.
The Court held that prior testimony from a preliminary hearing may be admitted when the witness is unavailable and the defendant previously had an opportunity to cross-examine. The oath, transcript, adversarial setting, and cross-examination together supply the requisite indicia of reliability.
Good faith is a practical, case-specific inquiry. In Roberts, efforts included repeated subpoenas to the last known address, ongoing contact with the witness’s family, and pursuit of leads indicating the witness had left the state. The State need not exhaust every theoretical avenue, but it must take reasonable, diligent steps proportionate to the circumstances.
Crawford rejected Roberts’s reliability balancing for testimonial hearsay, holding that testimonial statements are inadmissible unless the witness is unavailable and the defendant had a prior opportunity to cross-examine. Thus, for testimonial statements, judicial assessments of "reliability" no longer suffice. However, Roberts remains relevant to unavailability principles and helps explain why prior testimony with cross-examination still satisfies Crawford.
Yes, in several ways. First, it anchors the unavailability and good-faith effort requirement. Second, its approval of prior testimony subject to cross-examination aligns with Crawford’s core rule for testimonial statements. Finally, understanding Roberts is essential for tracing the doctrinal evolution from judicial reliability assessments to Crawford’s categorical confrontation framework.
Ohio v. Roberts provided the pre-Crawford blueprint for reconciling hearsay with the Confrontation Clause: admit out-of-court statements only after demonstrating unavailability and reliability, with prior testimony under oath and subject to cross-examination serving as the paradigm. The Court concluded that the State’s diligent but unsuccessful efforts to secure the witness, coupled with the defendant’s earlier opportunity to cross-examine at the preliminary hearing, satisfied the Constitution.
While Crawford later supplanted Roberts’s general reliability analysis for testimonial statements, Roberts remains a foundational case for law students: it clarifies unavailability, illuminates how prior testimony fits within confrontation doctrine, and contextualizes the seismic shift Crawford introduced in modern Confrontation Clause jurisprudence.