author: Mr. Justice White Mr. Justice Brennan, Mr. Justice Marshall, Mr. Justice Rehnquist,

text:
    ADAMS v. TEXAS
    No. 79-5175.
    Argued March 24, 1980
    Decided June 25, 1980

      White, J., delivered the opinion of the Court, in which Brennan, Stewart, Blackmun, Powell, and Stevens, JJ., joined. Brennan, J., filed a concurring opinion, post, p. 51. Burger, C. J., concurred in the judgment. Marshall, J., filed an opinion concurring in the judgment, post, p. 51. Behnquist, J., filed a dissenting opinion, post, p. 52.

      Melvyn Carson Bruder argued the cause for petitioner. With him on the brief were J. Stephen Cooper and George A. Preston.

      Douglas M. Becker, Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were Mark White, Attorney General, John W. Fainter, Jr., First Assistant Attorney General, Ted L. Hartley, Executive Assistant Attorney General, and W. Barton Boling, Assistant Attorney General.

        Jack Greenberg, James M. Nabrit III, Joel Berger, John Charles Boger, and Anthony G. Amsterdam filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging reversal.

   Mr. Justice White

delivered the opinion of the Court.

This capital case presents the question whether Texas contravened the Sixth and Fourteenth Amendments as construed and applied in Witherspoon v. Illinois, 391 U. S. 510 (1968), when it excluded members of the venire from jury service because they were unable to take an oath that the mandatory penalty of death or imprisonment for life would not “affect [their] deliberations on any issue of fact.” We hold that there were exclusions that were inconsistent with Witherspoon, and we therefore reverse the sentence of death imposed on the petitioner.

I

Trials for capital offenses in Texas are conducted in a two-phase proceeding. See Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon Supp. 1979). In the first phase, the jury considers the question of the defendant’s guilt or innocence. If the jury finds the defendant guilty of a capital offense, the trial court holds a separate sentencing proceeding at which a wide range of additional evidence in mitigation or aggravation is admissible. The jury is then required to answer the following questions based on evidence adduced during either phase of the trial:

“(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
“(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
“(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.” Art. 37.071 (b).

If the jury finds beyond a reasonable doubt that the answer to each of these questions is “Yes,” the court is required to impose a sentence of death. If the jury finds that the answer to any of the three questions is “No,” the court imposes a sentence of life imprisonment. Arts. 37.071 (c), (e).

The petitioner in this case was charged with the capital offense of murdering a peace officer. During voir dire examination of individual prospective jurors, the prosecutor, and sometimes the trial judge, intensively inquired as to whether their attitudes about the death penalty permitted them to take the oath set forth in Tex. Penal Code Ann. § 12.31 (b) (1974). Section 12.31 (b) provides as follows:

“Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.”

Typically, the prospective juror was first advised that the State was seeking the death penalty and asked to state his general views on the subject, which were sometimes explored in considerable depth. He was then informed in detail of the special procedure used by Texas in capital cases, including in particular the fact that “Yes” answers to the three punishment questions would automatically result in the trial judge’s imposing the death sentence. Finally, he was asked whether he could state under oath, as required by § 12.31 (b), that the mandatory penalty of death or imprisonment for life would not affect his deliberations on any issue of fact. On the State’s submission and over petitioner’s objections, the trial judge excused a number of prospective jurors who were unwilling or unable to take the § 12.31 (b) oath.

The jury selected under this procedure convicted the petitioner of the charged offense and answered the statutory questions affirmatively at the punishment phase, thus causing the trial judge to impose the death sentence as required by Art. 37.071 (e). On appeal, the petitioner argued that prospective jurors had been excluded in violation of this Court’s decision in Witherspoon v. Illinois, supra. The Texas Court of Criminal Appeals rejected the contention on the authority of its previous cases, which had “consistently held that the statutory scheme for the selection of jurors in capital cases in. Texas, and in particular the application of [§ 12.31 (b)] to the punishment issues, comports with the constitutional requirements of Witherspoon.” 577 S. W. 2d 717, 728 (1979). We granted the petition for a writ of certiorari, 444 U. S. 990 (1979), limited to the following questions:

“(1) Is the doctrine of Witherspoon v. Illinois, 391 U. S. 510, applicable to the bifurcated procedure employed by Texas in capital cases? (2) If so, did the exclusion from jury service in the present case of prospective jurors pursuant to Texas Penal Code § 12.31 (b) violate the doctrine of Witherspoon v. Illinois, supra?

II

A

Witherspoon involved a state procedure for selecting juries in capital cases, where the jury did the sentencing and had complete discretion as to whether the death penalty should be imposed. In this context, the Court held that a State may not constitutionally execute a death sentence imposed by a jury culled of all those who revealed during voir dire examination that they had conscientious scruples against or were otherwise opposed to capital punishment. The State was held to have no valid interest in such a broad-based rule of exclusion, since “[a] man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him . . . and can thus obey the oath he takes as a juror.” Witherspoon v. Illinois, 391 U. S., at 519. The defendant, on the other hand, was seriously prejudiced by the State’s practice. The jury which sentenced him to death fell “woefully short of that impartiality to which the petitioner was entitled” on the issue of punishment, id., at 518. By excluding all those who opposed capital punishment, the State “crossed the line of neutrality” and “produced a jury uncommonly willing to condemn a man to die.” Id., at 520, 521.

The Court recognized that the State might well have power to exclude jurors on grounds more narrowly drawn:

“[Njothing we say today bears .upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt ” Id., at 522-523, n. 21 (emphasis in original).

This statement seems clearly designed to accommodate the State’s legitimate interest in obtaining jurors who could follow their instructions and obey their oaths. For example, a juror would no doubt violate his oath if he were not impartial on the question of guilt. Similarly, the Illinois law in effect at the time Witherspoon was decided required the jury at least to consider the death penalty, although it accorded the jury absolute discretion as to whether or not to impose it. A juror wholly unable even to consider imposing the death penalty, no matter what the facts of a given case, would clearly be unable to follow the law of Illinois in assessing punishment. .

In Boulden v. Holman, 394 U. S. 478, 483-484 (1969), we again emphasized the State’s legitimate interest in obtaining jurors able to follow the law:

“[Ijt is entirely possible that a person who has a ‘fixed opinion against’ or who does not ‘believe in’ capital punishment might nevertheless be perfectly able as a juror to abide by existing law — to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.”

And in Lockett v. Ohio, 438 U. S. 586, 595-596 (1978), we upheld against a Witherspoon challenge the exclusion of several jurors who were unable to respond affirmatively to the following question:

“[D]o you feel that you could take an oath to well and truely [sic] try this case . . . and follow the law, or is your conviction so strong that you cannot take an oath, knowing that a possibility exists in regard to capital punishment?”

This line of cases establishes the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.

B

We have little difficulty in concluding. that this rule applies to the bifurcated procedure employed by Texas in capital cases. This procedure differs from the Illinois statute in effect at the time Witherspoon was decided in three principal ways: (1) the Witherspoon jury assessed punishment at the same time as it rendered its verdict, whereas in Texas the jury considers punishment in a subsequent penalty proceeding; (2) the Witherspoon jury was given unfettered discretion to impose the death sentence or not, whereas the discretion of a Texas jury is circumscribed by the requirement that it impartially answer the statutory questions; and (3) the Witherspoon jury directly imposed the death sentence, whereas Texas juries merely give answers to the statutory questions, which in turn determine the sentence pronounced by the trial judge. Because of these differences, the jury plays a somewhat more limited role in Texas than it did in Illinois. If the juror is to obey his oath and follow the law of Texas, he must be willing not only to accept that in certain circumstances death is an acceptable penalty but also to answer the statutory questions without conscious distortion or bias. The State does not violate the Witherspoon doctrine when it excludes prospective jurors who are unable or unwilling to address the penalty questions with this degree of impartiality.

Nevertheless, jurors in Texas must determine whether the evidence presented by the State convinces them beyond reasonable doubt that each of the three questions put to them must be answered in the affirmative. In doing so, they must consider both aggravating and mitigating circumstances, whether appearing in the evidence presented at the trial on guilt or innocence or during the sentencing proceedings. Jurors will characteristically know that affirmative answers to the questions will result in the automatic imposition of the death penalty, Hovila v. State, 532 S. W. 2d 293, 294 (Tex. Crim. App. 1975), and each of the jurors whose exclusion is challenged by petitioner was so informed. In essence, Texas juries must be allowed to consider “on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.” Jurek v. Texas, 428 U. S. 262, 271 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). This process is not an exact science, and the jurors under the Texas bifurcated procedure unavoidably exercise a range of judgment and discretion while remaining true to their instructions and their oaths.

With these considerations in mind, it is apparent that a Texas juror’s views about the death penalty might influence the manner in which he performs his role but without exceeding the “guided jury discretion,” 577 S. W. 2d, at 730, permitted him under Texas law. In such circumstances, he could not be excluded consistently with Witherspoon. Exclusions under § 12.31 (b), like other exclusions, must be examined in this light.

C

The State urges that Witherspoon and § 12.31 (b) may coexist as separate and independent bases for excluding jurors in Texas and that exclusion under the statute is consistent with the Sixth and Fourteenth Amendments as construed in Witherspoon. Brief for Respondent 48. It is the State’s position that even if some jurors in the present case were excluded on grounds broader than that permitted under' Witherspoon, the exclusion was nevertheless proper under § 12.31 (b). The State’s argument is consistent with the holdings of decisions in the Texas Court of Criminal Appeals which have considered the relationship between Witherspoon and § 12.31 (b). The argument, such as it is, is unpersuasive.

As an initial matter, it is clear beyond peradventure that Witherspoon is not a ground for challenging any prospective juror. It is rather a limitation on the State’s power to exclude: if prospective jurors are barred from jury service because of their views about capital punishment on “any broader basis” than inability to follow the law or abide by their oaths, the death sentence cannot be carried out. Witherspoon v. Illinois, 391 U. S., at 522, n. 21. While this point may seem too obvious to bear repetition, it is apparent from their frequent references to Witherspoon as a ground for “disqualifying” prospective jurors that the State, and the Texas Court of Criminal Appeals, might have fallen into the error of assuming that Witherspoon and § 12.31 (b) are both grounds for exclusion, so that there is no conflict if § 12.31 (b) excludes prospective jurors that Witherspoon does not.

Nor do we agree with the State’s argument that because it has a different origin and purpose § 12.31 (b) cannot and will not lead to exclusions forbidden by Witherspoon. Unlike grounds for exclusion having nothing to do with capital punishment, such as personal bias, ill health, financial hardship, or peremptory challenges, § 12.31 (b) focuses the inquiry directly on the prospective juror’s beliefs about the death penalty, and hence clearly falls within the scope of the Wither-spoon doctrine. The State could, consistently with Wither-spoon, use § 12.31 (b) to exclude prospective jurors whose views on capital punishment are such as to make them unable to follow the law or obey their oaths. But the use of § 12.31 (b) to exclude jurors on broader grounds based on their opinions concerning the death penalty is impermissible.

Finally, we cannot agree that § 12.31 (b) is “neutral” with respect to the death penalty since under that section the defendant may challenge jurors who state that their views in favor of the death penalty will affect their deliberations on fact issues. Despite the hypothetical existence of the juror who believes literally in the Biblical admonition “an eye for an eye,” see Witherspoon v. Illinois, supra, at 536 (Black, J., dissenting), it is undeniable, and the State does not seriously dispute, that such jurors will be few indeed as compared with those excluded because of scruples against capital punishment. The appearance of neutrality created by the theoretical availability of § 12.31 (b) as a defense challenge is not sufficiently substantial to take the statute out of the ambit of Witherspoon.

Ill

Based on our own examination of the record, we have concluded that § 12.31 (b) was applied in this case to exclude prospective jurors on grounds impermissible under Wither-spoon and related cases. As employed here, the touchstone of the inquiry under § 12.31 (b) was not whether putative jurors could and would follow their instructions and answer the posited questions in the affirmative if they honestly believed the evidence warranted it beyond reasonable doubt. Rather, the touchstone was whether the fact that the imposition of the death penalty would follow automatically from affirmative answers to the questions would have any effect at all on the jurors’ performance of their duties. Such a test could, and did, exclude jurors who stated that they would be “affected” by the possibility of the death penalty, but who apparently meant only that the potentially lethal consequences of their decision would invest their deliberations with greater seriousness and gravity or would involve them emotionally. Others were excluded only because they were unable positively to state whether or not their deliberations would in any way be “affected.” But neither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obey their oaths, regardless of their feelings about the death penalty. The grounds for excluding these jurors were consequently insufficient under the Sixth and Fourteenth Amendments. Nor in our view would the Constitution permit the exclusion of jurors from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law.

We repeat that the State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths. But in the present case Texas has applied § 12.31 (b) to exclude jurors whose only fault was to take their responsibilities with special seriousness or to acknowledge honestly that they might or might not be affected. It does not appear in the record before us that these individuals were so irrevocably opposed to capital punishment as to frustrate the State’s legitimate efforts to administer its constitutionally valid death penalty scheme. Accordingly, the Constitution disentitles the -State to execute a sentence of death imposed by a jury from which such prospective jurors have been excluded.

The judgment of the Texas Court of Criminal Appeals is consequently reversed to the extent that it sustains the imposition of the death penalty.

So ordered.

The Chief Justice concurs in the judgment.

Mr. Justice Brennan,

concurring.

Although I join the Court’s.opinion, I continue to believe that the death penalty is, in all circumstances, contrary to the Eighth Amendment’s prohibition against imposition of cruel and unusual punishments. Gregg v. Georgia, 428 U. S. 153, 227 (1976) (Brennan, J., dissenting).

Mr. Justice Marshall,

concurring in the judgment.

I continue to believe that the death penalty is, under all circumstances, cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U. S. 238, 314-374 (1972) (Marshall, J., concurring) ; Gregg v. Georgia, 428 U. S. 153, 231-241 (1976) (Marshall, J., dissenting); Godfrey v. Georgia, 446 U. S. 420, 437-440 (1980) (Marshall, J., concurring in judgment). In addition, I agree with the Court that the exclusion of veniremen in this case violated the doctriné'.of Witherspoon v. Illinois, 391 U. S. 510 (1968). I do not, however, join in the Court’s assumption that the death penalty may ever be imposed without violating the command of the Eighth Amendment that no "cruel and unusual punishments” be imposed. Cf. Beck v. Alabama, 447 U. S. 625, 646 (1980) (Marshall, J., concurring in judgment). I join in the judgment of the Court.

Mr. Justice Rehnquist,

dissenting.

The Court today holds that, under Witherspoon v. Illinois, 391 U. S. 510 (1968), the State of Texas may not excuse from service on a jury considering a capital case persons who are unwilling or unable to swear that the possibility that the defendant will be executed will not affect their deliberations on any issue of fact. Thus, at a time when this Court should be re-examining the doctrinal underpinnings of Witherspoon in light of our intervening decisions in capital cases, it instead expands that precedent as if those underpinnings had remained wholly static and would benefit from expansion of the holding. I find myself constrained to dissent.

At the time Witherspoon was decided, Illinois, like many States, gave the juries in capital cases complete and unbridled discretion in considering the death penalty. In the words of Witherspoon itself, “the State of Illinois empowered the jury ... to answer ‘yes’ or ‘no’ to the question whether this defendant was fit to live.” 391 U. S., at 521, n. 20. This feature of the capital-sentencing scheme under consideration in that case was perhaps the single most important factor in this Court’s ultimate decision:

“'[I]n Illinois ... the jury is given broad discretion to decide whether or not death is “the proper penalty” in a given case, and a juror’s general views about capital punishment play an inevitable role in any such decision.
“A man who opposes the death penalty, no less than one .who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it. Guided by neither rule nor standard, 'free to select or reject as it [sees] fit,’ a jury that must choose between life imprisonment and capital punishment can do little more — and must do nothing less — than express the conscience of the community on the ultimate question of life or death.” Id., at 519 (emphasis in original; footnote omitted).

However one feels about the constitutionality of excluding persons with qualms about the death penalty from such a jury, one has to admit that the conditions that formed the predicate for Witherspoon no longer exist. Our recent decisions on the constitutionality of the death penalty leave little doubt that, contrary to this Court’s only slightly less recent decision in McGautha v. California, 402 U. S. 183 (1971), a State may not leave the decision whether to impose capital punishment upon a particular defendant solely to the untrammeled discretion of a jury. See Furman v. Georgia, 408 U. S. 238 (1972); Gregg v. Georgia, 428 U. S. 153 (1976); Proffitt v. Florida, 428 U. S. 242 (1976); Jurek v. Texas, 428 U. S. 262 (1976); Roberts v. Louisiana, 428 U. S. 325 (1976).

The statute presently in force in Texas requires imposition of the death penalty if the jury in a capital case answers three questions in the affirmative:

“(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
“(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a .continuing threat to society; and
“(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.” Tex. Code Crim. Proc. Ann., Art. 37.071 (b) (Vernon Supp. 1979).

If the jury answers any of these inquiries in the negative, capital punishment cannot be imposed.

It is hard to imagine a system of capital sentencing that leaves less discretion in the hands of the jury while at the same time allowing them to consider the particular circumstances of each case — that is, to perform their assigned task at all. In upholding this system against constitutional challenge in Jurek v. Texas, supra, the opinion announcing the judgment stressed that this procedure “guides and focuses the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.” Id., at 274 (emphasis added). Given this mandate to a jury in a capital case to answer certain specific questions on the basis of the evidence submitted, I see no reason why Texas should not be entitled to require each juror to swear that he or she will answer those questions without regard to their possible cumulative consequences.

In holding otherwise, the Court seems to recognize that the jury’s role in this case is fundamentally different from that considered in Witherspoon. It nevertheless dismisses this difference on the grounds that the sentencing process employed by Texas “is not an exact science” and that “the jurors under the Texas bifurcated procedure unavoidably exercise a range of judgment and discretion while remaining true to their instructions and their oaths.” Ante, at 46. I would suggest that the Court’s observations in this regard are as true when applied to the initial determination of guilt as they are when applied to the sentencing proceeding. In either determination, a juror is required to make “unscientific” determinations and to exercise a good deal of discretion within the bounds of his or her oath. In fact. I can see no plausible distinction between the role of the jury in the guilt/innoeence phase of the trial and its role, as defined by the State of Texas, in the sentencing phase. No one would suggest, however, that jurors could not be excused for cause if they declined to swear that the possibility of capital punishment would not affect their determination of the defendant’s guilt or innocence. Cf. Witherspoon v. Illinois, 391 U. S., at 523, n. 21 (“Nor . . . does today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case”).

In his dissent in Witherspoon, Mr. Justice Black pointed out that society, as much as the defendant, has a right to an impartial jury. Id., at 535. He also observed that, if a person could not be excluded from a jury for being “too soft” on the death penalty, then a court would be without a basis for excluding someone who was “too hard.” As he wrote, “I would not dream of foisting on a criminal defendant a juror who admitted that he had conscientious or religious scruples against not inflicting the death sentence on any person convicted of murder (a juror who claims, for example, that he adheres literally to the Biblical admonition of ‘an eye for an eye’).” Id., at 536 (emphasis added). I cannot believe that the Court would question the excusal of a juror who would not take the challenged oath for those same reasons. To dismiss this possibility, as does the Court here, because “such jurors will be few indeed,” ante, at 49, is not only to engage in unsupportable speculation, but also to miss the point of Mr. Justice Black’s argument. The question is not one of statistical parity, but of logical consistency.

Like the Texas Court of Criminal Appeals, I do not read Witherspoon as casting any doubt upon the constitutionality of the oath required by Tex. Penal Code Ann. § 12.31 (b) (1974). See Hughes v. State, 563 S. W. 2d 581 (1978); Freeman v. State, 556 S. W. 2d 287 (1977); Burns v. State, 556 S. W. 2d 270 (1977); Boulware v. State, 542 S. W. 2d 677 (1976). I therefore would affirm the judgment of the court below.

       Under Tex. Penal Code Ann. § 19.03 (a) (1) (1974), whoever “murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman” is guilty of a capital felony. Texas also authorizes the death penalty for four other offenses: murder committed in the course of kidnaping, burglary, robbery, forcible rape, or arson; murder committed for remuneration; murder committed while escaping or attempting to escape from a penal institution; and murder of a prison employee by a prison inmate. § 19.03.
      Under the current Texas capital punishment scheme, the jury’s discretion over sentencing is limited both by § 19.03, which authorizes the death penalty for only a small class of aggravated crimes, and by Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon Supp. 1979), which mandates a sentence of death if, but only if, the jury answers “Yes” to each of the statutory penalty questions. This system was adopted in response to the Court’s judgment in Branch v. Texas, decided together with Furman v. Georgia, 408 U. S. 238 (1972), which struck down a statute giving the jury absolute discretion whether to impose the death penalty or not. The Court upheld the revised Texas capital punishment scheme in Jurek v. Texas, 428 U. S. 262 (1976).

       In Burns v. Estelle, 592 F. 2d 1297 (1979), a panel of the Court of Appeals for the Fifth Circuit found that the application of Tex. Penal Code Ann. § 12.31 (b) (1974) to the facts of that case violated Wither-spoon. The en bane Fifth Circuit has since set the case for rehearing en banc. 598 F. 2d 1016 (1979). The court held oral argument on January 8, 1980, but has as yet issued no decision.

       In Davis v. Georgia, 429 U. S. 122 (1976), the Court applied the Witherspoon doctrine to a case arising under a death penalty scheme similar in some respects to the current Texas system. Petitioner and amicus suggest that Davis conclusively establishes the applicability of Witherspoon to the present case. We do not treat the question as foreclosed, however, because the issue was not explicitly raised in that case.

       Even the State concedes that Witherspoon “applies” to the Texas system. Brief for Respondent 36-48. The State suggests that this proposition is questionable as a matter of “logic,” but agrees that Texas experience and case law conclusively demonstrate Witherspoon’s applicability. The Texas Court of Criminal Appeals has consistently held that Witherspoon is “alive and well” in that State. E. g., Woodkins v. State, 542 S. W. 2d 855, 862 (1976), cert. denied, 431 U. S. 960 (1977); Burns v. State, 556 S. W. 2d 270, 275, cert. denied, 434 U. S. 935 (1977); Brock v. State, 556 S. W. 2d 309, 312, cert. denied, 434 U. S. 1002 (1977); Whitmore v. State, 570 S. W. 2d 889, 893 (1976).

        E. g., Moore v. State, 542 S. W. 2d 664, 672 (1976), cert. denied, 431 U. S. 949 (1977); Woodkins v. State, supra, at 862; Shippy v. State, 556 S. W. 2d 246, 251, cert. denied, 434 U. S. 935 (1977); Burns v. State, supra, at 275-276; Freeman v. State, 556 S. W. 2d 287, 297-298 (1977), cert. denied, 434 U. S. 1088 (1978); Brock v. State, supra, at 313; Hughes v. State, 562 S. W. 2d 857, 859-861, cert. denied, 439 U. S. 903 (1978); Hughes v.
        State, 563 S. W. 2d 581, 583 (1978), cert. denied, 440 U. S. 950 (1979) ; Bodde v. State, 568 S. W. 2d 344, 348-349 (1978), cert. denied, 440 U. S. 968 (1979); Whitmore v. State, supra, at 893; Garcia v. State, 581 S. W. 2d 168, 174-175 (1979), cert. pending, No. 79-5464; Burks v. State, 583 S. W. 2d 389, 393-394 (1979), cert. pending, No. 79-5533.

         E. g., Brief for Respondent 34, 42, 48; Moore v. State, supra, at 672; Brock v. State, supra, at 313; Hughes v. State, 562 S. W. 2d, at 860; Hughes v. State, 563 S. W. 2d, at 586; Chambers v. State, 568 S. W. 2d 313, 320 (1978), cert. denied, 440 U. S. 928 (1979); Bodde v. State, supra, at 348; Garcia v. State, supra, at 175.

       Prospective jurors Mahon, Jenson, and Ferguson fell into this category. As Jenson said at one point during his voir dire examination:
      “Well, I think it probably would [affect my deliberations] because afterall [sic], you’re talking about a man’s life here. You definitely don’t want to take it lightly.” Tr. of Voir Dire 367.

       Prospective jurors Coyle, White, McDonald, and Riddle were excluded on this ground.


source: Caselaw Access Project

author: Me. Justice Blackmun Mr. Justice Brennan,

license: Public Domain

text:
    OHIO v. ROBERTS
    No. 78-756.
    Argued November 26, 1979
    Decided June 25, 1980

      Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, and Rehnquist, JJ., joined. BkennaN, J., filed a dissenting opinion, in which Marshall and Stevens, JJ., joined, post, p. 77.

      John E. Shoop argued the cause and filed a brief for petitioner.

      Marvin B. Plasco argued the cause and filed a brief for respondent.

        Solicitor General McCree, Assistant Attorney General Heymann, Sara

        Sun Beale, Jerome M. Feit, and Kathleen A. Felton filed a- brief for the United States as amicus curiae urging reversal.

        Steven M. Cox filed a brief for the Ohio Public Defenders Association as amicus curiae urging affirmance.

   Me. Justice Blackmun

delivered the opinion of the Court.

This case presents issues concerning the constitutional propriety of the introduction in evidence of the preliminary hearing testimony of a witness not produced at the defendant’s subsequent state criminal trial.

I

Local police arrested respondent, Herschel Roberts, on January 7, 1975, in Lake County, Ohio. Roberts was charged with forgery of a check in the name of Bernard Isaacs, and with possession of stolen credit cards belonging to Isaacs and his wife Amy.

A preliminary hearing was held in Municipal Court on January 10. The prosecution called several witnesses, including Mr. Isaacs. Respondent’s appointed counsel had seen the Isaacs’ daughter, Anita, in the courthouse hallway, and called her as the defense’s only witness. Anita Isaacs testified that she knew respondent, and that she had permitted him to use her apartment for several days while she was away. Defense counsel questioned Anita at some length and attempted to elicit from her an admission that she had given respondent checks and the credit cards without informing him that she did not have permission to use them. Anita, however, denied this. Respondent’s attorney did not ask to have the witness declared hostile and did not request permission to place her on cross-examination. The prosecutor did not question Anita.

A county grand jury subsequently indicted respondent for forgery, for receiving stolen property (including the credit cards), and for possession of heroin. The attorney who represented respondent at the preliminary hearing withdrew upon becoming a Municipal Court Judge, and new counsel was appointed for Roberts.

Between November 1975 and March 1976, five subpoenas for four different trial dates were issued to Anita at her parents’ Ohio residence. The last three carried a written instruction that Anita should “call before appearing.” She was not at the residence when these were executed. She did not telephone and she did not appear at trial.

In March 1976, the case went to trial before a jury in the Court of Common Pleas. Respondent took the stand and testified that Anita Isaacs had given him her parents’ checkbook and credit cards with the understanding that he could use them. Tr. 231-232. Relying on Ohio Rev. Code Ann. § 2945.49 (1975), which permits the use of preliminary examination testimony of a witness who “cannot for any reason be produced at the trial,” the State, on rebuttal, offered the transcript of Anita’s testimony. Tr. 273-274.

Asserting a violation of the Confrontation Clause and, indeed, the unconstitutionality thereunder of § 2945.49, the defense objected to the use of the transcript. The trial court conducted a voir dire hearing as to its admissibility. Tr. 194-199. Amy Isaacs, the sole witness at voir dire, was questioned by both the prosecutor and defense counsel concerning her daughter’s whereabouts. Anita, according to her mother, left home for Tucson, Ariz., soon after the preliminary hearing. About a year before the trial, a San Francisco social worker was in communication with the Isaacs about a welfare application Anita had filed there. Through the social worker, the Isaacs reached their daughter once by telephone. Since then, however, Anita had called her parents only one other time and had not been in touch with her two sisters, When Anita called, some seven or eight months before trial, she told her parents that she “was traveling” outside Ohio, but did not reveal the place from which she called. Mrs. Isaacs stated that she knew of no way to reach Anita in case of an emergency. App. 9. Nor did she “know of anybody who knows where she is.” Id., at 11. The trial court admitted the transcript into evidence. Respondent was convicted on all counts.

The Court of Appeals of Ohio reversed. After reviewing the voir dire, that court concluded that the prosecution had failed to make a showing of a “good-faith effort” to secure the absent witness’ attendance, as required by Barber v. Page, 390 U. S. 719, 722-725 (1968). The court noted that “we have no witness from the prosecution to testify . . . that no one on behalf of the State could determine Anita’s whereabouts, [or] that anyone had exhausted contact with the San Francisco social worker.” App. 5. Unavailability would have been established, the court said, “[h]ad the State demonstrated that its subpoenas were never actually served on the witness and that they were unable to make contact in any way with the witness. . . . Until the Isaacs’ voir dire, requested by the defense, the State had done nothing, absolutely nothing, to show the Court that Anita would be absent because of unavailability, and they showed no effort having been made to seek out her whereabouts for purpose of trial.” Ibid.

The Supreme Court of Ohio, by a 4-3 vote, affirmed, but did so on other grounds. 55 Ohio St. 2d 191, 378 N. E. 2d 492 (1978). It first held that the Court of Appeals had erred in concluding that Anita was not unavailable. Barber v. Page was distinguished as a case in which “the government knew where the absent witness was,” whereas Anita’s “whereabouts were entirely unknown.” 55 Ohio St. 2d, at 194, 378 N. E. 2d, at 495. “[T]he trial judge could reasonably have concluded from Mrs. Isaacs’ voir dire testimony that due diligence could not have procured the attendance of Anita Isaacs”; he “could reasonably infer that Anita had left San Francisco”; and he “could properly hold that the witness was unavailable to testify in person.” Id., at 195, 378 N. E. 2d, at 495-496.

The court, nonetheless, held that the transcript was inadmissible. Reasoning that normally there is little incentive to cross-examine a witness at a preliminary hearing, where the “ultimate issue” is only probable cause, id., at 196, 378 N. E. 2d, at 496, and citing the dissenting opinion in California v. Green, 399 U. S. 149, 189 (1970), the court held that the mere opportunity to cross-examine at a preliminary hearing did not afford constitutional confrontation for purposes of trial. See 55 Ohio St. 2d, at 191, 378 N. E. 2d, at 493 (court syllabus). The court distinguished Green, where this Court had ruled admissible the preliminary hearing testimony of a declarant who was present at trial, but claimed forgetfulness. The Ohio court perceived a “dictum” in Green that suggested that the mere opportunity to cross-examine renders preliminary hearing testimony admissible. 55 Ohio St. 2d, at 198, and n. 2, 378 N. E. 2d, at 497, and n. 2, citing 399 U. S., at 165-166. But the court concluded that Green “goes no further than to suggest that cross-examination actually conducted at preliminary hearing may afford adequate confrontation for purposes of a later trial.” 55 Ohio St. 2d, at 199, 378 N. E. 2d, at 497 (emphasis in original). Since Anita had not been cross-examined at the preliminary hearing and was absent at trial, the introduction of the transcript of her testimony was held to have violated respondent’s confrontation right. The three dissenting justices would have ruled that “ ‘the test is the opportunity for full and complete cross-examination rather than the use which is made of that opportunity’ ” (citing United States v. Allen, 409 F. 2d 611, 613 (CA10 1969)). 55 Ohio St. 2d, at 200, 378 N. E. 2d, at 498.

We granted certiorari to consider these important issues under the Confrontation Clause. 441 U. S. 904 (1979).

II

A

The Court here is called upon to consider' once again the relationship between the Confrontation Clause and the hearsay rule with its many exceptions. The basic rule against hearsay, of course, is riddled with exceptions developed over three centuries. See E. Cleary, McCormick on Evidence § 244 (2d ed. 1972) (McCormick) (history of rule); id., §§ 252-324 (exceptions). These exceptions vary among jurisdictions as to number, nature, and detail. See, e. g., Fed. Rules Evid. 803, 804 (over 20 specified exceptions). But every set of exceptions seems to fit an apt description offered more than 40 years ago: “an old-fashioned crazy quilt made of patches cut from a group of paintings by cubists, futurists and surrealists.” Morgan & Maguire, Looking Backward and Forward at Evidence, 50 Harv. L. Rev. 909, 921 (1937).

The Sixth Amendment’s Confrontation Clause, made applicable to the States through the Fourteenth Amendment, Pointer v. Texas, 380 U. S. 400, 403-405 (1965); Davis v. Alaska, 415 U. S. 308, 315 (1974), provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” If one were to read this language literally, it would require, on objection, the exclusion of any statement made by a declarant not present at trial. See Mattox v. United States, 156 U. S. 237, 243 (1895) (“[Tjhere could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations”). But, if thus applied, the Clause would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme.

The historical evidence leaves little doubt, however, that the Clause was intended to exclude some hearsay. See California v. Green, 399 U. S., at 156-157, and nn. 9 and 10; see also McCormick § 252, p. 606. Moreover, underlying policies support the same conclusion. The Court has emphasized that the Confrontation Clause reflects a preference for face-to-face confrontation at trial, and that “a primary interest secured by [the provision] is the right of cross-examination.” Douglas v. Alabama, 380 U. S. 415, 418 (1965). In short, the Clause envisions

“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., at 242-243.

These means of testing accuracy are so important that the absence of proper confrontation at trial “calls into question the ultimate ‘integrity of the fact-finding process.’ ” Chambers v. Mississippi, 410 U. S. 284, 295 (1973), quoting Berger v. California, 393 U. S. 314, 315 (1969).

The Court, however, has recognized that competing interests, if “closely examined,” Chambers v. Mississippi, 410 U. S., at 295, may warrant dispensing with confrontation at trial. See Mattox v. United States, 156 U. S., at 243 (“general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case”). Significantly, every jurisdiction has a strong interest in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings. See Snyder v. Massachusetts, 291 U. S. 97, 107 (1934) ; California v. Green, 399 U. S., at 171-172 (concurring opinion).

This Court, in a series of cases, has sought to accommodate these competing interests. True to the common-law tradition, the process has been gradual, building on past decisions, drawing on new experience, and responding to changing conditions. The Court has not sought to “map out a theory of the Confrontation Clause that would determine the validity of all . . . hearsay ‘exceptions/ ” California v. Green, 399 U. S., at 162. But a general approach to the problem is discernible.

B

The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. See Mancusi v. Stubbs, 408 U. S. 204 (1972); Barber v. Page, 390 U. S. 719 (1968). See also Motes v. United States, 178 U. S. 458 (1900); California v. Green, 399 U. S., at 161-162, 165, 167, n. 16.

The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that “there is no material departure from the reason of the general rule.” Snyder v. Massachusetts, 291 U. S., at 107. The principle recently was formulated in Mancusi v. Stubbs:

“The focus of the Court’s concern has been to insure that there ‘are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant,’ Dutton v. Evans, supra, at 89, and to ‘afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement/ California v. Green, supra, at 161. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these ‘indicia of reliability.’ ” 408 U. S., at 213.

The Court has applied this “indicia of reliability” requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the “substance of the constitutional protection.” Mattox v. United States, 156 U. S., at 244. This reflects the truism that “hearsay rules and the Confrontation Clause are generally designed to protect similar values,” California v. Green, 399 U. S., at 155, and “stem from the same roots,” Dutton v. Evans, 400 U. S. 74, 86 (1970). It also responds to the need for certainty in thé workaday world of conducting criminal trials.

In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a -firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

III

We turn first to that aspect of confrontation analysis deemed dispositive by the Supreme Court of Ohio, and answered by it in the negative — whether Anita Isaacs’ prior testimony at the preliminary hearing bore sufficient “indicia of reliability.” Resolution of this issue requires a careful comparison of this case to California v. Green, supra.

A

In Green, at the preliminary hearing, a youth named Porter identified Green as a drug supplier. When called to the stand at Green’s trial, however, Porter professed a lapse of memory. Frustrated in its attempt to adduce live testimony, the prosecution offered Porter’s prior statements. The trial judge ruled the evidence admissible, and substantial portions of the preliminary hearing transcript were read to the jury. This Court found no error. Citing the established rule that prior trial testimony is admissible upon retrial if the declarant becomes unavailable, Mattox v. United States, 156 U. S. 237 (1895); Mancusi v. Stubbs, 408 U. S. 204 (1972), and recent dicta suggesting the admissibility of preliminary hearing testimony under proper circumstances, Barber v. Page, 390 U. S., at 725-726; Pointer v. Texas, 380 U. S., at 407, the Court rejected Green’s Confrontation Clause attack. It reasoned:

“Porter’s statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial. Porter was under oath; respondent was represented by counsel — the same counsel in fact who later represented him at the trial; respondent had every opportunity to cross-examine Porter as to his statement; and the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings.” 399 U. S., at 165.

These factors, the Court concluded, provided all that the Sixth Amendment demands: “substantial compliance with the purposes behind the confrontation requirement.” Id., at 166.

This passage and others in the Green opinion suggest that the opportunity to cross-examine at the preliminary hearing— even absent actual cross-examination — satisfies the Confrontation Clause. Yet the record showed, and the Court recognized, that defense counsel in fact had cross-examined Porter at the earlier proceeding. Id., at 151. Thus, Me. Justice Brennan, writing in dissent, could conclude only that “[p]erhaps” “the mere opportunity for face-to-face encounter [is] sufficient.” Id., at 200, n. 8. See Note, 52 Texas L. Rev. 1167, 1170 (1974).

We need not decide whether the Supreme Court of Ohio correctly dismissed statements in Green suggesting that the mere opportunity to cross-examine rendered the prior testimony admissible. See Westen, The Future of Confrontation, 77 Mich. L. Rev. 1185, 1211 (1979) (issue is “truly difficult to resolve under conventional theories of confrontation”). Nor need we decide whether de minimis questioning is sufficient, for defense counsel in this case tested Anita’s testimony with the equivalent of significant cross-examination.

B

Counsel’s questioning clearly partook of cross-examination as a matter of form. His presentation was replete with leading questions, the principal tool and hallmark of cross-examination. In addition, counsel’s questioning comported with the principal purpose of cross-examination: to challenge “whether the declarant was sincerely telling what he believed to be the truth, whether the declarant accurately perceived and remembered the matter he related, and whether the de-clarant’s intended meaning is adequately conveyed by the language he employed.” Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv. L. Rev. 1378 (1972). Anita’s unwillingness to shift the blame away from respondent became discernible early in her testimony. Yet counsel continued to explore the underlying events in detail. He attempted, for example, to establish that Anita and respondent were sharing an apartment, an assertion that was critical to respondent’s defense at trial and that might have suggested ulterior personal reasons for unfairly casting blame on respondent. At another point, he directly challenged Anita’s veracity by seeking to have her admit that she had given the credit cards to respondent to obtain a television. When Anita denied this, defense counsel elicited the fact that the only television she owned was a “Twenty Dollar . . . old model.” App. 21. Cf. Davis v. Alaska, 415 U. S. 308, 316-317 (1974).

Respondent argues that, because defense counsel never asked the court to declare Anita hostile, his questioning necessarily occurred on direct examination. See State v. Minneker, 27 Ohio St. 2d 155, 271 N. E. 2d 821 (1971). But however state law might formally characterize the questioning of Anita, it afforded “substantial compliance with the purposes behind the confrontation requirement,” Green, 399 U. S., at 166, no less so than classic cross-examination. Although Ohio law may have authorized objection by the prosecutor or intervention by the court, this did not happen. As in Green, respondent’s counsel was not “significantly limited in any way in the scope or nature of his cross-examination.” Ibid.

We are also unpersuaded that Green is distinguishable on the ground that Anita Isaacs — unlike the declarant Porter in Green — was not personally available for questioning at trial. This argument ignores the language and logic of Green:

“Porter’s statement would, we think, have been admissible at trial even in Porter’s absence if Porter had been actually unavailable. . . . That being the case, we do not think a different result should follow where the witness is actually produced.” Id., at 165.

Nor does it matter that, unlike Green, respondent had a different lawyer at trial from the one at the preliminary hearing. Although one might strain one’s reading of Green to assign this factor some significance, respondent advances no reason of substance supporting the distinction. Indeed, if we were to accept this suggestion, Green would carry the seeds of its own demise; under a “same attorney” rule, a defendant could nullify the effect of Green by obtaining new counsel after the preliminary hearing was concluded.

Finally, we reject respondent’s attempt to fall back on general principles of confrontation, and his argument that this case falls among those in which the Court must undertake a particularized search for “indicia of reliability.” Under this theory, the factors previously cited — absence of face-to-face contact at trial, presence of a new attorney, and the lack of classic cross-examination — combine with considerations uniquely tied to Anita to mandate exclusion of her statements. Anita, respondent says, had every reason to lie to avoid prosecution or parental reprobation. Her unknown whereabouts is explicable as an effort to avoid punishment, perjury, or self-incrimination. Given these facts, her prior testimony falls on the unreliable side, and should have been excluded.

In making this argument, respondent in effect asks us to disassociate preliminary hearing testimony previously subjected to cross-examination from previously cross-examined prior-trial testimony, which the Court has deemed generally immune from subsequent confrontation attack. Precedent requires us to decline this invitation. In Green the Court found guarantees of trustworthiness in the accouterments of the preliminary hearing itself; there was no mention of the inherent reliability or unreliability of Porter and his story. See also Mancusi v. Stubbs, 408 U. S., at 216.

In sum, we perceive no reason to resolve the reliability issue differently here than the Court did in Green. “Since there was an adequate opportunity to cross-examine [the witness], and counsel . . . availed himself of that opportunity, the transcript . . . bore sufficient ‘indicia of reliability’ and afforded ‘ “the trier of fact a satisfactory basis for evaluating the truth of the prior statement.” ’ ” 408 U. S., at 216.

IV

Our holding that the Supreme Court of Ohio erred in its “indicia of reliability” analysis does not fully dispose of the case, for respondent would defend the judgment on an alternative ground. The State, he contends, failed to lay a proper predicate for admission of the preliminary hearing transcript by its failure to demonstrate that Anita Isaacs was not available to testify in person at, the trial. All the justices of the Supreme Court of Ohio rejected this argument. 55 Ohio St. 2d, at 195 and 199, 378 N. E. 2d, at 495 and 497.

A

The basic litmus of Sixth Amendment unavailability is established: “[A] witness is not ‘unavailable’ for purposes of . . . the exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Barber v. Page, 390 U. S., at 724-725 (emphasis added). Accord, Mancusi v. Stubbs, supra; California v. Green, 399 U. S., at 161-162, 165, 167, n. 16; Berger v. California, 393 U. S. 314 (1969).

Although it might be said that the Court’s prior cases provide no further refinement of this statement of the rule, certain general propositions safely emerge. The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness’ intervening death), “good faith” demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. “The lengths to which the prosecution must go to produce a witness ... is a question of reasonableness.” California v. Green, 399 U. S., at 189, n. 22 (concurring opinion, citing Barber v. Page, supra). The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness. As with other evi-dentiary proponents, the prosecution bears the burden of establishing this predicate.

B

On the facts presented we hold that the trial court and the Supreme Court of Ohio correctly concluded that Anita's unavailability, in the constitutional sense, was established.

At the voir dire hearing, called for by the defense, it was shown that some four months prior to the trial the prosecutor was in touch with Amy Isaacs and discussed with her Anita’s whereabouts. It may appropriately be inferred that Mrs. Isaacs told the prosecutor essentially the same facts to which she testified at voir dire: that the Isaacs had last heard from Anita during the preceding summer; that she was not then in San Francisco, but was traveling outside Ohio; and that the Isaacs and their other children knew of no way to reach Anita even in an emergency. This last fact takes on added significance when it is recalled that Anita’s parents earlier had undertaken affirmative efforts to reach their daughter when the social worker’s inquiry came in from San Francisco. This is not a case of parents abandoning all interest in an absent daughter.

The evidence of record demonstrates that the prosecutor issued a subpoena to Anita at her parents’ home, not only once, but on five separate occasions over a period of several months. In addition, at the voir dire argument, the prosecutor stated to the court that respondent “witnessed that I have attempted to locate, I have subpoenaed, there has been a voir dire of the witness’ parents, and they have not been able to locate her for over a year.” App. 12.

Given these facts, the prosecution did not breach its duty of good-faith effort. To be sure, the prosecutor might have tried to locate by telephone the San Francisco social worker with whom Mrs. Isaacs had spoken many months before and might have undertaken other steps in an effort to find Anita. One, in hindsight, may always think of other things. Nevertheless, the great improbability that such efforts would have resulted in locating the witness, and would have led to her production at trial, neutralizes any intimation that a concept of reasonableness required their execution. We accept as a general rule, of course, the proposition that “the possibility of a refusal is not the equivalent of asking and receiving a rebuff.” Barber v. Page, 390 U. S., at 724, quoting from the dissenting opinion in that case in the Court of Appeals (381 F. 2d 479, 481 (CA10 1966)). But the service and ineffectiveness of the five subpoenas and the conversation with Anita's mother were far more than mere reluctance to face the possibility of a refusal. It was investigation at the last-known real address, and it was conversation with a parent who was concerned about her daughter’s whereabouts.

Barber and Mancusi v. Stubbs, supra, are the cases in which this Court has explored the issue of constitutional unavailability. Although each is factually distinguishable from this case, Mancusi provides significant support for a conclusion of good-faith effort here, and Barber has no contrary significance. Insofar as this record discloses no basis for concluding that Anita was abroad, the case is factually weaker than Mancusi; but it is stronger than Mancusi in the sense that the Ohio prosecutor, unlike the prosecutor in Mancusi, had no clear indication, if any at all, of Anita’s whereabouts. In Barber, the Court found an absence of good-faith effort where the prosecution made no attempt to secure the presence of a declarant incarcerated in a federal penitentiary in a neighboring State. There, the prosecution knew where the witness was, procedures existed whereby the witness could be brought to the trial, and the witness was not in a position to frustrate efforts to secure his production. Here, Anita’s whereabouts were not known, and there was no assurance that she would be found in a place from which she could be forced to return to Ohio.

We conclude that the prosecution carried its burden of demonstrating that Anita was constitutionally unavailable for purposes of respondent’s trial.

The judgment of the Supreme Court of Ohio is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Brennan,

with whom Mr. Justice Marshall and Mr. Justice Stevens join, dissenting.

The Court concludes that because Anita Isaacs’ testimony at respondent’s preliminary hearing was subjected to the equivalent of significant cross-examination, such hearsay evidence bore sufficient “indicia of reliability” to permit its introduction at respondent’s trial without offending the Confrontation Clause of the Sixth Amendment. As the Court recognizes, however, the Constitution imposes the threshold requirement that the prosecution must demonstrate the unavailability of the witness whose prerecorded testimony it wishes to use against the defendant. Because I cannot agree that the State has met its burden of establishing this predicate, I dissent.

“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). Accord, Berger v. California, 393 U. S. 314, 315 (1969); Barber v. Page, 390 U. S. 719, 721 (1968); Pointer v. Texas, supra, at 410 (Stewart, J., concurring); Kirby v. United States, 174 U. S. 47, 55-56 (1899). Historically, the inclusion of the Confrontation Clause in the Bill of Rights reflected the Framers’ conviction that the defendant must not be denied the opportunity to challenge his accusers in a direct encounter before the trier of fact. See California v. Green, 399 U. S. 149, 156-158 (1970); Park v. Huff, 506 F. 2d 849, 861-862 (CA5 1975) (Gewin, J., concurring). At the heart of this constitutional guarantee is the accused’s right to compel the witness “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). See also California v. Green, supra, at 174-183 (Harlan, J., concurring).

Despite the literal language of the Sixth Amendment, our cases have recognized the necessity for a limited exception to the confrontation requirement for the prior testimony of a witness who is unavailable at the defendant’s trial. In keeping with the importance of this provision in our constitutional scheme, however, we have imposed a heavy burden on the prosecution either to secure the presence of the witness or to demonstrate the impossibility of that endeavor. Barber v. Page, supra, held that the absence of a witness from the jurisdiction does not excuse the State’s failure to attempt to compel the witness’ attendance at trial; in such circumstances, the government must show that it has engaged in a diligent effort to locate and procure the witness’ return. “In short, a witness is not ‘unavailable’ for purposes of the foregoing exception to the confrontation requirement unless the prosecu-torial authorities have made a good-faith effort to obtain his presence at trial.” Id., at 724-725. See, e. g., United States v. Mann, 590 F. 2d 361, 367 (CA1 1978); United States v. Lynch, 163 U. S. App. D. C. 6, 18-19, 499 F. 2d 1011, 1023-1024 (1974); Government of the Virgin Islands v. Aquino, 378 F. 2d 540, 549-552 (CA3 1967). See generally 5 J. Wig-more, Evidence § 1405 (J. Chadbourn rev. 1974) and cases cited therein.

In the present case, I am simply unable to conclude that the prosecution met its burden of establishing Anita Isaacs’ unavailability. From all that appears in the record — and there has been no suggestion that the record is incomplete in this respect — the State’s total effort to secure Anita’s attendance at respondent’s trial consisted of the delivery of five subpoenas in her name to her parents’ residence, and three of those were issued after the authorities had learned that she was no longer living there. At least four months before the trial began, the prosecution was aware that Anita had moved away; yet during that entire interval it did nothing whatsoever to try to make contact with her. It is difficult to believe that the State would have been so derelict in attempting to secure the witness’ presence at trial had it not had her favorable preliminary hearing testimony upon which to rely in the event of her “unavailability.” The perfunctory steps which the State took in this case can hardly qualify as a “good-faith effort.” In point of fact, it was no effort at all.

The Court, however, is apparently willing to excuse the prosecution’s inaction on the ground that any endeavor to locate Anita Isaacs was unlikely to bear fruit. See ante, at 75-76. I not only take issue with the premise underlying that reasoning — that the improbability of success can condone a refusal to conduct even a cursory investigation into the witness’ whereabouts — but I also seriously question the Court’s conclusion that a bona fide search in the present case would inevitably have come to naught.

Surely the prosecution’s mere speculation about the difficulty of locating Anita Isaacs cannot relieve it of the obligation to attempt to find her. Although the rigor of the undertaking might serve to palliate a failure to prevail, it cannot justify a failure even to try. Just as Barber cautioned that “ ‘the possibility of a refusal is not the equivalent of asking and receiving a rebuff,’ ” 390 TJ. S., at 724 (quoting the decision below, 381 F. 2d 479, 481 (CA10 1966) (Aldrich, J., dissenting)), so, too, the possibility of a defeat is not the equivalent of pursuing all obvious leads and returning empty-handed. The duty of “good-faith effort” would be meaningless indeed “if that effort were required only in circumstances where success was guaranteed.” Mancusi v. Stubbs, 408 U. S. 204, 223 (1972) (Marshall, J., dissenting).

Nor do I concur in the Court’s bleak prognosis of the likelihood of procuring Anita Isaacs’ attendance at respondent’s trial. Although Anita’s mother testified that she had no current knowledge of her daughter’s whereabouts, the prosecution possessed sufficient information upon which it could have at least initiated an investigation. As the Court acknowledges, one especially promising lead was the San Francisco social worker to whom Mrs. Isaacs had spoken and with whom Anita had filed for welfare. What the Court fails to mention, however, is that the prosecution had more to go on than that datum alone. For example, Mrs. Isaacs testified that on the same day she talked to the social worker, she also spoke to her daughter. And although Mrs. Isaacs told defense counsel that she knew of no way to get in touch with her daughter in an emergency, Tr. 195, in response to a similar question from the prosecutor she indicated that someone in Tucson might be able to contact Anita. Id., at 198-199. It would serve no purpose here to essay an exhaustive catalog of the numerous measures the State could have taken in a diligent attempt to locate Anita. It suffices simply to note that it is not “hindsight,” see ante, at 75, that permits us to envision how a skilled investigator armed with this information (and any additional facts not brought out through the voir dire) might have discovered Anita’s whereabouts with reasonable effort. Indeed, precisely because the prosecution did absolutely nothing to try to locate Anita, hindsight does not enhance the vista of investigatory opportunities that were available to the State had it actually attempted to find her.

In sum, what the Court said in Barber v. Page, 390 U. S., at 725, is equally germane here: “[S]o far as this record reveals, the sole reason why [the witness] was not present to testify in person was because the State did not attempt to seek [her] presence. The right of confrontation may not be dispensed with so lightly.”

       A number of continuances were granted for reasons unrelated to Anita’s absence.

       The statute reads:
      “Testimony taken at an examination or a preliminary hearing at which the defendant is present, or at a former trial of the cause, or taken by deposition at the instance of the defendant or the state, may be used whenever the witness giving such testimony dies, or cannot for any reason be produced at the trial, or whenever the witness has, since giving such testimony, become incapacitated to testify. If such former testimony is contained within a bill of exceptions, or authenticated transcript of such testimony, it shall be proven by the bill of exceptions, or transcript, otherwise by other testimony.”

       The Ohio “syllabus rule” is stated in Baltimore & Ohio R. Co. v. Baillie, 112 Ohio St. 567, 570, 148 N. E. 233, 234 (1925). See Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562, 565 (1977).

       With the caveat, “[s]implification has a measure of falsification,” McCormick defines hearsay evidence as “testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” § 246, p. 584.

       See California v. Green, 399 U. S. 149, 157 (1970) (“it is this literal right to 'confront’ the witness at the time of the trial that forms the core of the values furthered by the Confrontation Clause”); id., at 172-189 (concurring opinion); Barber v. Page, 390 U. S. 719, 725 (1968); Dowdell v. United States, 221 U. S. 325, 330 (1911).

         See also Davis v. Alaska, 415 U. S. 308, 315 (1974); Bruton v. United States, 391 U. S. 123, 126 (1968); Pointer v. Texas, 380 U. S. 400, 406-407 (1965); California v. Green, 399 U. S., at 158 (cross-examination is the “ 'greatest legal engine ever invented for the discovery of truth/ ” quoting 5 J. Wigmore, Evidence § 1367 (3d ed. 1940)). Of course, these purposes are interrelated, since one critical goal of cross-examination is to draw out discrediting demeanor to be viewed by the factfinder. See Government of Virgin Islands v. Aquino, 378 F. 2d 540, 548 (CA3 1967).
      Confrontation at trial also operates to ensure reliability in other ways. First, “[t]he requirement of personal presence . . . undoubtedly makes it more difficult to lie against someone, particularly if that person is an accused and present at trial.” 4 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 800 [01], p. 800-10 (1979). See also Note, 54 Iowa L. Rev. 360, 365 (1968). Second, it “insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury.” California v. Green, 399 U. S., at 158.

       A demonstration of -unavailability, however, is not always required. In Dutton v. Evans, 400 U. S. 74 (1970), for example, the Court found the utility of trial confrontation so remote that it did not require the prosecution to produce a seemingly available witness. Cf. Read, The New Confrontation — Hearsay Dilemma, 45 S. Cal. L. Rev. 1, 43, 49 (1972); The Supreme Court, 1970 Term, 85 Harv. L. Rev. 3, 194-195, 197-198 (1971).

       See, e. g., Pointer v. Texas, 380 U. S., at 407 (dying declarations); Mattox v. United States, 156 U. S., at 243-244 (same); Mancusi v. Stubbs, 408 U. S. 204, 213-216 (1972) (cross-examined prior-trial testimony); Comment, 30 La. L. Rev. 651, 668 (1970) (“Properly administered the business and public records exceptions would seem to be among the safest of the hearsay exceptions”).

       The complexity of reconciling the Confrontation Clause and the hearsay rules has triggered an outpouring of scholarly commentary. Few observers have commented without proposing, roughly or in detail, a basic approach. Some have advanced theories that would shift the general mode of analysis in favor of the criminal defendant. See F. Heller, The Sixth Amendment 105 (1951); Seidelson, Hearsay Exceptions and the Sixth Amendment, 40 Geo. Wash. L. Rev. 76, 91-92 (1971) (all hearsay should be excluded except, perhaps, when prosecution shows absolute necessity, high degree of trustworthiness, and “total absence” of motive to falsify); The Supreme Court, 1967 Term, 82 Harv. L. Rev. 63, 237 (1968); Note, 31 Vand. L. Rev. 682, 694 (1978).
      Others have advanced theories that would relax constitutional restrictions on the use of hearsay by the prosecutor. See 5 J. Wigmore, Evidence § 1397, p. 159 (J. Chadbourn rev. 1974); Note,. The Confrontation Test for Hearsay Exceptions: An Uncertain Standard, 59 Calif. L. Rev. 580, 594 (1971) (“fixed procedural definition of the confrontation clause makes the actual protection afforded depend upon the particular evidence rules in force in each state”); Younger, Confrontation and Hearsay: A Look Backward, A Peek Forward, 1 Hofstra L. Rev. 32 (1973); Westen, The Future of Confrontation, 77 Mich. L. Rev. 1185 (1979); Graham, The Confrontation Clause, the Hearsay Rule, and the Forgetful Witness, 56 Texas L. Rev. 151 (1978); Note, 75 Yale L. J. 1434 (1966). See California v. Green, 399 U. S., at 172-189 (Harlan, J., concurring) (Confrontation Clause requires only that prosecution produce available witnesses; Due Process Clause bars conviction “where the critical issues at trial were supported only by ex parte testimony not subjected to cross-examination, and not found to be reliable by the trial judge,” id., at 186, n. 20).
      Still others have proposed theories that might either help or hurt the accused. See Graham, The Right of Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One,- 8 Crim. L. Bull. 99, 129 (1972); Baker, The Right to Confrontation, the Hearsay Rules, and Due Process, 6 Conn. L. Rev. 529 (1974); Comment, 13 UCLA L. Rev. 366, 376-377 (1966) (advocating sliding-scale “probative value-need quotient”); Comment, 52 Texas L. Rev. 1167, 1190-1191 (1974).
      Finally, a number of commentators, while sometimes criticizing particular results or language in past decisions, have generally agreed with the Court's present approach. See Davenport, The Confrontation Clause and The Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv. L. Rev. 1378, 1405 (1972); Read, The New Confrontation-Hearsay Dilemma, 45 S. Cal. L. Rev. 1, 48 (1972) (“the traditional approach . . . with its recognition of a core constitutional value to be preserved, but with its reluctance to make sweeping declarations as to the meaning of that right ... is the best. . . compromise”); Note, 113 U. Pa. L. Rev. 741, 748, and n. 38 (1965) (requiring “adequate substitute for confrontation,” while recognizing that no substitute can be “fully .adequate”), See also Natali, Green, Dutton and Chambers: Three Cases in Search of a Theory, 7 Rutgers-Camden L. J. 43, 62 (1975); The Supreme Court, 1970 Term, 85 Harv. L. Rev. 3, 199 (1971);
      Notwithstanding this divergence of critical opinion, we have found no commentary suggesting that the Court has misidentified the basic interests to be accommodated. Nor has any commentator demonstrated that prevailing analysis is out of line with the intentions of the Framers of the Sixth Amendment. Convinced that “no rule will perfectly resolve all possible problems,” Natali, 7 Rutgers-Camden L. J., at 73, we reject the invitation to overrule a near-century of jurisprudence. Our reluctance to begin anew is heightened by the Court’s implicit prior rejection of principal alternative proposals, see Dutton v. Evans, 400 U. S., at 93-100 (concurring opinion), and California v. Green, 399 U. S., at 172-189 (concurring opinion); the mutually critical character of the commentary; and the Court’s demonstrated success in steering a middle course among proposed alternatives.

       This reasoning appears in Part III of Green, the only section of that opinion directly relevant to the issue raised here. The Ohio court in the present case appears to have dismissed Part III as “dictum.” 55 Ohio St. 2d, at 198, 378 N. E. 2d, at 497. The United States has suggested that Part III properly is viewed as an “alternative holding.” Brief for United States as Amicus Curiae 24, n. 15. Either view, perhaps, would diminish Green’s precedential significance. We accept neither.
      In Part II of Green, the Court held that use of a trial witness’ prior inconsistent statements as substantive evidence did not, as a general rule, violate the Confrontation Clause. In Part III, the Court went further and held: “Porter’s preliminary hearing testimony was admissible . . . wholly apart from the question of whether respondent had an effective opportunity for confrontation at the subsequent trial. For Porter’s statement at the preliminary hearing had already been given under circumstances closely approximating those that surround the typical trial.” 399 U. S., at 165. In Part IV, the Court returned to the general rule articulated in Part II. The Court contrasted cases in which the declarant testifies at trial that he has forgotten the underlying events, rather than claiming recollection but advancing an inconsistent story. The Court noted that commentators disagreed over whether the former class of cases should be brought within the general rule articulated in Part II. Id., at 169, n. 18. Given the difiiculty of the issue, which was neither briefed in this Court nor addressed below, the Court remanded the case for a determination of whether assertedly inconsistent remarks made by Porter to a police officer could be admitted under the rule of Part II. Since the critical reason for this disposition was Porter’s asserted forgetfulness at trial, the same result clearly would have obtained in regard to Porter’s preliminary hearing testimony were it not for the Court’s holding in Part III. It follows that Part III was not an alternative holding, and certainly was not dictum. That portion of the opinion alone dispositively established the admissibility of Porter’s preliminary hearing testimony. See also Note, 59 Calif. L. Rev., at 589; The Supreme Court, 1969 Term, 84 Harv. L. Rev. 1, 114-115 (1970).

       No less than 17 plainly leading questions were asked, as indicated by phrases in counsel’s inquiries: “is[n’t] it a fact . . . that”; “is it to your knowledge, then, that . . .”; “is[n’t] that correct”; “you never gave them . . “this wasn’t then in the pack . . .”; “you have never [not] seen [discussed; talked] . . .”; “you never gave. . . .”

       We need not consider whether defense counsel’s questioning at the preliminary hearing surmounts some inevitably nebulous threshold of “effectiveness.” In Mancusi, to be sure, the Court explored to some extent the adequacy of counsel’s cross-examination at the earlier proceeding. See 408 U. S., at 214-215. That discussion, however, must be read in light of the fact that the defendant’s representation at the earlier proceeding, provided by counsel who had been appointed only four days prior thereto, already had been held to be ineffective. See id., at 209. Under those unusual circumstances, it was necessary to explore the character of the actual cross-examination to ensure that an adequate opportunity for full cross-examination had been afforded to the defendant. Cf. Pointer v. Texas, 380 U. S., at 407. We hold that in all but such extraordinary cases, no inquiry into “effectiveness” is required. A holding that every case involving prior testimony requires such an inquiry would frustrate the principal objective of generally validating the prior-testimony exception in the first place — increasing certainty and consistency in the application of the Confrontation Clause.
      The statement in Mancusi quoted in the text indicates the propriety of this approach. To the same effect is Mattox v. United States, 156 U. S., at 244 (“The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross-examination”).

       In Mancusi, the declarant “who had been bom in Sweden but had become a naturalized American citizen, had returned to Sweden and taken up permanent residence there.” 408 U. S., at 209. While in this country, he had testified against Stubbs at his Tennessee trial for murder and kidnaping. Stubbs was convicted, but obtained habeas corpus relief 10 years later, and was retried by Tennessee. Before the second trial, the prosecution sent a subpoena to be served in Texas, the declarant’s last place of residence in this country. It could not be served. The Court rejected Stubbs’ assertion that the prosecution had not undertaken good-faith efforts in failing to do more. “Tennessee . . . was powerless to compel his attendance . . . either through its own process or through established procedures.” Id., at 212.

       Because I am convinced that the State failed to lay a proper foundation for the admission of Anita Isaacs’ preliminary hearing testimony, I have no occasion to consider whether that testimony had in fact been subjected to full and effective adverse questioning and whether, even conceding the adequacy of the prior cross-examination, the significant differences in the nature and objectives of the preliminary hearing and the trial preclude substituting confrontation at the former proceeding for the constitutional requirement of confrontation at the latter. See California v. Green, 399 U. S. 149, 195-203 (1970) (BeeNnan, J., dissenting).

       “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”

       The five subpoenas, all of which were issued to Anita at her parents’ address, showed that returns were made on November 3 and 4, 1975, December 10, 1975, February 3, 1976, and February 25, 1976, respectively. During the course of the voir dire of Anita’s mother, the prosecutor indicated that sometime in November 1975 the Isaacs had told him that Anita had left home. See Tr. 197; ante, at 75.

       In attempting to .distinguish this case from Barber v. Page, 390 U. S. 719 (1968), and demonstrate the reasonableness of the State’s conduct, the Court states that “there was no assurance that [Anita] would be found in a place from which she could be forced to return to Ohio.” Ante, at 77. Once located, however, it is extremely unlikely that Anita could- have resisted the State's efforts to secure her return. The Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings enables prosecuting authorities in one State to obtain an order from a court in another State compelling the witness’ appearance to testify in court in the first State! The Uniform Act has been adopted in the District of Columbia, the Panama Canal Zone, Puerto Rico, the Virgin Islands, and every State in the Union except Alabama. 11 U. L. A. 1 (Supp. 1980).

       The Court of Appeals of Ohio expressed some doubt as to whether Mrs. Isaacs had been totally forthcoming in professing no knowledge of the whereabouts of her daughter, who had been linked to respondent’s criminal involvements and who, in Mrs. Isaacs’ words, “wants to make her own way, and forget all the unpleasantness that happened here, and prove something to herself and to us, and to think about her future and forget her past.” Tr. 195-196. See App. 5-6. These reservations about the candidness of Mrs. Isaacs’ testimony provide yet another reason why the State was not justified in relying solely on the Isaacs’ representations to establish Anita’s unavailability.