Hearsay Testimony of An Unavailable Witness
In Ohio v. Roberts (1980), 448 U.S. 56, 65, 100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597. Under Evid.R. 804(A)(5), the United States Supreme Court held that hearsay testimony of an unavailable witness was admissible if it bore "sufficient indicia of reliability." 448 U.S. at 66.
In the case before it, the Roberts court found that the absent witness's preliminary hearing testimony bore sufficient indicia of reliability because defense counsel had an adequate opportunity to cross-examine the witness at the preliminary hearing, counsel availed himself of that opportunity, and the transcript afforded the trier-of-fact sufficient basis for evaluating the truth of the witness's prior statement. Id. at 73.
In Crawford v. Washington (2004), 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177, the Supreme Court rejected the practice of allowing the use of an unavailable witness's out-of-court statement if it had sufficient indicia of reliability, reasoning that such a practice violated the accused's right to confront the witnesses against him.
Crawford held that a testimonial statement from a witness who does not appear at trial is inadmissible against the accused unless the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness. Id. at 59.
Thus, when the state wishes to offer the statements of an unavailable declarant, the pivotal questions are whether the hearsay statements in question are properly characterized as "testimonial" and, if so, whether the accused had a prior opportunity to cross-examine the witness.
The Ohio Rules of Evidence place an additional layer of analysis.
Because testimony may be admissible under the Confrontation Clause yet inadmissible under the rules of evidence, and vice versa, see Crawford, 541 U.S. at 51, the declarant's statements must fall within the constitutional requirements and the rules of evidence to be admissible.