Ohio v. Roberts

RESPONDENT: Herschel Roberts
LOCATION: Court of Common Pleas for Lake County, Ohio

DOCKET NO.: 78-756
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: Ohio Supreme Court

CITATION: 448 US 56 (1980)
ARGUED: Nov 26, 1979
DECIDED: Jun 25, 1980
GRANTED: Apr 16, 1979

John E. Shoop - on behalf of the petitioner
Marvin R. Plasco - on behalf of the respondent

Facts of the case

On January 7, 1975, police arrested Herschel Roberts in Lake County, Ohio. Roberts was charged with forgery of a check in the name of Bernard Isaacs and of possessing stolen credit cards belonging to Amy Isaacs. At the preliminary hearing on January 10, Roberts’ lawyer called the Isaacs’ daughter, Anita, as a witness to testify that she knew Roberts and allowed him to use her apartment while she was away. The attorney attempted to elicit testimony from Anita that she gave Roberts the checks and credit cards without telling him that she did not have permission to do so. Ms. Isaacs would not admit to these actions, and Roberts’ attorney did not ask the court to declare her a hostile witness or place her on cross-examination. When Ms. Isaacs failed to respond to five subpoenas to appear at Roberts’ subsequent criminal trial, the state entered the transcript of her earlier testimony into evidence, as allowed by an Ohio Statute.

After being convicted by the trial court, Roberts appealed on the grounds that the admission of the prior testimony violated the Confrontation Clause of the Sixth Amendment. The Ohio Court of Appeals reversed the conviction and the Ohio Supreme Court affirmed.


Does the introduction into evidence of prior testimony of a witness who had not been cross-examined violate the Sixth Amendment?

Media for Ohio v. Roberts

Audio Transcription for Oral Argument - November 26, 1979 in Ohio v. Roberts

Warren E. Burger:

We will hear arguments next in 78-756, Ohio against Roberts.

Mr. Shoop, I think you may proceed whenever you're ready.

John E. Shoop:

Mr. Chief Justice, and may it please the Court.

I am John Shoop, Lake County prosecuting attorney, representing the State of Ohio, petitioner herein.

I would like to take some time, with the Court's indulgence, to explain some of the facts that brought the case before this Court.

In January of 1975, one Herschel Roberts was arrested on the charge of forging a check.

At that time he was afforded a preliminary hearing in the Mentor Municipal Court, at which hearing he was present it was a hearing before a judicial tribunal, a judge the hearing was recorded witnesses were called and sworn the defendant had the opportunity and the use of counsel, counsel was present and other indicia of reliability were present at this time in that defendant had the opportunity to use the compulsory process of the state to force the attendance of witnesses.

Warren E. Burger:

Who called the witness that's in question here?

John E. Shoop:

All right.

At the preliminary hearing the witness was called by the defense counsel, and it was expected then that this witness would corroborate something in light of the defendant's testimony, or anticipated defense.

The case -- the preliminary hearing proceeded, and after the calling of this witness and the discovery, then, by the defense counsel, that this witness was testifying adversely to his defendant, the defense counsel, without objection from the state, without objection from the court, began to ask leading and argumentative questions --

William H. Rehnquist:

But he couldn't have objected, the other side couldn't have objected, could he have? Hadn't Ohio abolished the voucher rule?

John E. Shoop:

Technically, we have abolished the voucher rule.

But we do have a provision that provides that in this type of situation, the counsel can ask the court to declare the witness hostile to allow him to cross-examine the witness.

Now, of course, with no objection --

He did not require -- or ask the court at that time and that could be because there was no objection from either the court or the state at that point.

Without --

Byron R. White:

Well, you say there were some questions he wanted to but didn't ask, because of any rule of Ohio law?

John E. Shoop:


The question that he could have asked was, that he could have asked the court --

Byron R. White:

Well, I know, but he didn't.

And -- but do you think he terminated his examination of the witness he called?

John E. Shoop:

Of his own free will, yes.

Byron R. White:

But short of asking some questions that he wishes now he had asked?

John E. Shoop:

That's totally within the mind of the attorney.

I can't tell you whether he had asked all of the questions.

I feel that --

Byron R. White:

As far as the record shows, he was free to ask any question he wanted to?

John E. Shoop:

And I believe he did.

And I feel he explored this witness, Anita Isaacs, as far as he could and wanted to at that point.