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

Barber v. Page

No. 703

Argued March 28, 1968
Decided April 23, 1968
390 U.S. 719

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.