The Ohio Supreme Court recently held in State v. Roberts that when a witness is unavailable at the trial of a criminal defendant, the state may not introduce the witness' preliminary hearing testimony into evidence unless he had been cross-examined at the preliminary hearing. The court found that the defendant, Roberts, had been denied his right to confront an adverse witness when the trial court admitted the preliminary hearing testimony of a witness who was not present at trial, and held that mere opportunity to cross-examine at a preliminary hearing, unexercised, did not satisfy the demands of the Confrontation Clause of the sixth amendment. Section I of this Note provides the facts of the case, the trial court and appellate decisions, and the Ohio Supreme Court’s decision. Section II delves into the Court’s decision on the preliminary hearing testimony in relation to the Confrontation Clause. Section III explains why the majority opinion is problematic, and Section IV provides an alternative rationale for the Court to use instead.
Note, State v. Roberts: A Persuasive but Unsupported Position, 27 Clev. St. L. Rev. 453 (1978)