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h Gord Who is this Gord? Well, let me tell you about Gord.
took it upon myself to bring the slobbering masses into my embrace, and occasionally one aspiring demigod stood above the rest, and proved himself worthy of the name Owner. One of my most promising Keepers of the Retail Faith was The Gord. "Go," I said unto The Gord. "Go, and continue to give to the masses what they so richly deserve!" And he did.
ut the story was not yet over. For some time The Gord and I concurrently kept The Retail Faith. His Establishment maintained, surpassed and soon eclipsed mine in sheer Consumer Idiocy. Tales were told that begged disbelief. "No one," we thought, "Is really that stupid." But the stories continued, and the cries of the wretched grew louder and more plentiful. The stories were true: The Gord had become an Owner in Hell. Witness after Witness held forth tales of lunacy and mental vacuousness.
nd when I travelled from the hallowed halls of my Game Store and visited the Game Store of The Gord, the truth became apparent. I have no cause to disbelieve the veracity of the tales told here. The truth, it would certainly seem, is contained herein. Go now, and read of The Gord, and know that he has walked the path of the Game Store Owner, and that he has suffered for all of us.
knew him as Gord. These were his stories.
Last Update:
August 8, 2012:
1. Now that pretty much everyone who has ever ordered a book in the past has got their's, I am selling the extra copies that were printed. If you want what is basically a hardcover version of this site, make a payment via PayPal to firstname.lastname@example.com.
2. Please ensure you include your address. Canada: $22, US: $24, and worldwide: $29. Basically, it's $19 plus shipping. US$ or CA$ are fine as the currencies are equal.
February 8, 2012:
1. For those who never received your book, please email me your PayPal receipt and a copy of the book you paid for years ago will be sent to you. I assure you that the reason you didn't get your book is because PayPal hates you more than you can possibly imagine. Or me. Perhaps both.
2. Once the last of the pre-paid books have been shipped, there will be a limited number of copies left over for people who would like to basically buy the site in hardcover paper form. However, no copies will be sold until essentially the last of the pre-ordered books have been shipped.
3. Gord's personal web set is currently being blocked by his ISP until the new fibre line is run to the house. Telus allows people to run servers from their home, but they block port 80 on DSL connections. http://aog.2y.net/
4. There is no new content to speak of. Though a related site on how not to run a business may be done in the coming months, because if there is one thing I don't know what to do, it's how to run a business. Less humour, more just an amazing list of how I can't do anything right.
Really old news:
I really should get a current email address for Stephanie if I am going to be suggesting people contact her. I wonder if I told her we're on for dinner when I am in Korea at the end of the month. Why do I not yet have a personal assistant who confirms these things for me?

subset: commoncrawl


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How to Reduce Transport Stress in Horses
Reprinted from The Horse Report with permission from the Center for Equine Health, School of Veterinary Medicine, University of California, Davis (UC Davis).
Before Transport
Tranquilization and Familiarization
Many horses have been familiarized with transport from a young age. Even many that have never been transported before will often readily allow themselves to be loaded and confined in a transport vehicle. A small minority of horses could be difficult to handle during transport. Tranquilization by a veterinarian might facilitate loading and assist with the safe handling of the horse during transport. However, the medication can interfere with temperature regulation so should be done with caution.
Quick Tips to Reduce Transport Stress Before Travel
- Train the horse to load, unload, and haul quietly. This will drastically reduce the stress levels right from the start of travel. Loading is by far the most stressful single aspect of transport (other than ultra-long duration hauling).
- Make sure your preventive health program, particularly vaccinations, is up to date. Vaccinations take two to three weeks to provide protection.
- Make sure you have the proper health records for any regulatory requirements, especially if crossing state lines or country borders.
- Select a van or trailer that suits your horse's size and temperament, preferably one that allows the horse to lower its head as this can make a significant difference. Make a safety check of the trailer.
- Inspect the transport vehicle for cleanliness and sanitize, if necessary.
- If hiring a commercial transport company, make sure the grooms and other caretakers are experienced in handling horses and their care.
- Plan the route to minimize duration, along with any extremes in weather or environmental temperatures.
- Ensure that the flooring remains nonslip for the entire trip. Provide absorbent bedding to help soak up any urine and manure excreted.
- Ensure adequate ventilation in the transport vehicle.
- Avoid prolonged stationary periods in traffic or at refueling stops. A trailer in the sun can be more than 20 degrees warmer inside than outside. Traffic delays during the summer, with associated fumes, can be disastrous to the horse. Unload, if safe to do so, if a prolonged delay is apparent.
- Provide a well-fitting halter; leather is ideal.
- Bring sufficient feed and water.
- Have an effective means of restraint.
- Plan for rest or recovery periods. Offer water every four to six hours, or every three to four hours in hot weather. If possible, pick up manure and urine at the same time intervals.
- Check that veterinary help is available, if required.
- Notify the point of arrival of the journey plan and any special requirements.
Water and Electrolytes
Unless a horse has a history of dehydration, excessive or uncontrolled administration of electrolytes could actually have adverse effects on water and electrolyte balance in the horse. Check that a horse that is to be transported has been drinking normally in the days leading up to transport, and especially immediately before transport. The pre-travel administration of oral or intravenous fluids is not usually recommended unless the horse has a history of developing dehydration during travel.
Body Weight
It is normal for a horse to lose weight during transport. The amount of weight lost can range from 0.45 to 0.55% of total body weight (about five to six pounds in a normal mature Thoroughbred) per hour of transport. This weight loss might reflect reduced dietary intake during travel, dehydration, manure and urine excretion, and sweating. Horses can lose 45 pounds (20 kilograms) on international flights, and horses with shipping fever could lose 75 pounds or more en route. Horses traveling more than 12 hours have been found to lose up to 5% of their body weight. Weight loss in transit tends to be regained over the following three to seven days in healthy horses, and possibly over longer periods in horses with shipping fever.
It is recommended that horses be weighed before travel to establish a baseline for comparison with weight status on arrival and in the recovery period. Since scales are likely to vary, weigh two large sacks of feed and record their weights. Keep the sacks intact to weigh on the scale at your destination. You will then be able to compare departure with arrival weights, compensating for differences in scale accuracy. Weight tapes, when applied correctly, tend to be accurate within 40 pounds.
Respiratory Health and Disease
One of the fundamental rules of transport is "sick horse on, sicker horse when getting off." The importance of avoiding the shipment of horses that are even slightly sick (other than for transport to a hospital or clinic) cannot be overemphasized. This is especially true for horses with respiratory illness. Horses with fever or nasal discharge and those with a history of exposure to other horses with infectious respiratory disease (such as strangles or viral respiratory infections) should not be transported.
Unnecessary medication should be avoided, especially before travel. Adverse reactions are always a possibility with any therapeutic substance. Tranquilizers should be administered only by a veterinarian and are not recommended unless necessary.
Transport Vehicle (Trailer/Van) Inspection
Prior to departure, the transport vehicle should be carefully inspected to be sure that it is safe and road-worthy. Special attention to competency of flooring should be paid in all trailers. Ensure that:
- All lights are in working order.
- Brakes are fully operational.
- Doors fully open and close and can be locked properly.
- Vents fully open and close.
- The trailer floor and any loading ramps have been thoroughly checked.
- If rubber mats are used, make sure these are flush with floor to avoid any tripping during loading and traveling.
- The trailer's emergency brake box has been tested and is in working order.
- Tire pressure is adjusted according to the manufacturer's suggested levels.
- The spare tire is accessible and properly inflated.
- The vehicle is stocked with an appropriate trailer and truck jack as well as tire chocks (a wedge placed behind a vehicle's wheels to prevent accidental movement).
- The hitch is functional for the trailer and the vehicle.
Route Plan
The route for road transport should be carefully considered. Plan the time of day for transport to avoid extremes of heat or cold. Night travel can be advantageous because ambient temperatures will be lower during hot weather, traffic is likely to be lighter so as to avoid stops and starts, refueling might be faster, and horses could be more relaxed during the evening. Plan the route so that it is possible to stop regularly to check horses and offer them water every four to six hours. Locate veterinarians along the way in case of a medical emergency during transit.
Flight Plan for Air Transport
The duration of confinement to the air should be minimized as much as possible. Loading and unloading of planes should be facilitated in every way possible. The shortest route to reach a distant destination is always preferred. The duration of ground stops should be minimized and auxiliary ventilation systems should be used to maintain excellent air quality. Typically, the worst air quality occurs during ground times. Planes are much better ventilated when aloft. Relative humidity and temperature rise quickly in a stationary closed vehicle, especially in warm climates and sunny conditions.
Emergency Preparedness
Consult your veterinarian for his or her recommendation for what to include in a first aid kit prior to travel. Some essential items should include sterile bandage material, adhesive wrap and tape, leg wraps, scissors, rectal thermometer, antiseptic solution, latex gloves, and PVC tubing cut into lengths of eighteen inches to two feed (for emergency splinting).
Blankets and Bandages
Bandages and bell boots for leg and coronary band protection can be useful if horses are accustomed to wearing them. If not (i.e., foals or yearlings), shipping boots or bandages could be a liability instead of an asset. Train the horse to wear protective bandages if you plan to use them. If the horse is blanketed (not advised unless it is cold), select a blanket that will not overheat the horse and cause sweating. Remember the horse will be using his muscles to balance and there could be limited ventilation once the vehicle is fully loaded with horses.
Recovery Period
Despite every effort at preventing shipping fever or other transport-related disease, some horses will become ill during or within the first three days following transport. It is advisable to plan for a convalescent period of at least three days after shipping to allow for treatment of horses that could be ill. Contact a veterinarian if the horse exhibits nasal discharge, refuses feed, or has an elevated rectal temperature.
During Transport
Duration of Journey
Journeys of three hours or less than 500 miles are unlikely to be associated with transport-related diseases, dehydration, or fatigue due to energy expenditure and reduced feed intake. Road transport time per day should not exceed 12 hours from the time the first horse is loaded on the vehicle. After 12 hours of transport, horses should be removed from the vehicle and comfortably stabled for at least eight hours. This time period is necessary for tracheal clearance and rehydration.
Behavior and Injury
Horse behavior should be monitored regularly throughout any transport. Additional skillful help might be required if a horse becomes extremely agitated. Any depression or injury in horses should be noted and appropriate first-aid action taken wherever possible.
Feed and Water
Clean water should be offered regularly—approximately every three to six hours—during prolonged ground or air transport. If possible, it is advisable to bring water from home as some horses are reluctant to drink water that is not from the home sources. In warmer conditions, high humidity, or when horses are sweating, water should be offered more frequently.
It is important that horses eat during long journeys. However, it is also imperative that the environment on the transport vehicle have as little contamination of the air with respirable particles as possible. In particular, the breathing zone around the horse's muzzle should not be heavily contaminated with particulate matter. Because hay nets must be placed very close to (or within) the breathing zone, it is essential that hay be as dust-free as possible. It is therefore recommended that hay be thoroughly soaked in water before being loaded on the vehicle or fed in a net to horses.
Head Posture
Horses should be given as much freedom of movement of their heads as is safe. Restraint in the head up posture for prolonged intervals can severely compromise lung clearance mechanisms and predispose a horse to shipping fever. Hay nets should be placed as low as possible while still assuring that horses cannot entangle their feet in the nets. Alternatively, horses travel well in small box stalls in which they can extend their heads to the floor to consume hay.
Orientation During Transport
Orientation of the horse within a transport vehicle has been identified as a potential source of stress. Several studies have examined horses facing toward or away from the direction of road travel. With some variation, the studies suggest that horses facing away from travel experience less stress and better ability to clear their airways and adjust posture. While most horses seem to prefer this, there is evidence that some individuals prefer head forward and might show greater signs of stress if forced to ride backward. It is not known whether the horses respond this way because they have become accustomed to it or for other reasons. Decisions regarding restraint and orientation during travel should be made on a case-by-case basis. Greater caution is required when opening the doors of a trailer with an unrestrained horse inside.
Ventilation and the Environment
There are a number of factors about air quality that impact the respiratory system. The properly designed trailer or van will allow for adequate ventilation without a gale force draft directly on the horse or a total drenching if it rains. That said, it is almost impossible not to have the airflow in a trailer recirculate rear to front along the floor, bringing noxious fumes up for the horses to breathe. The pressure profiles along a moving trailer largely dictate that there will be lots of rebreathing. More open-stock trailers potentially offer significant advantages for ventilation and reduced heat load during the summer.
Ensure that potential factors that can negatively impact air quality within the trailer/van are minimized. The exhaust system of the vehicle should be inspected yearly. If the truck has a vertical exhaust similar to that on a tractor-trailer, it should be taller than the ceiling of the van or trailer and not be flowing in the immediate vicinity of an intake vent. Note that diesel exhaust can be more harmful than gasoline exhaust, and keeping either engine in proper maintenance can decrease its emissions. (Health concerns about diesel exhaust relate not only to cancer, but also to other health problems such as lung and heart diseases.) Breathing of exhaust fumes can be an irritant to the respiratory system and excessive fumes in an enclosed compartment can cause death due to carbon monoxide poisoning. Deaths of horses in trailers have been reported when the wind currents during transit directed the exhaust directly into closed trailers.
Urine-soaked bedding or poor drainage from the trailer can also have a negative impact on air quality. When urine breaks down, a substantial amount of ammonia fumes can be generated. Excessive inhalation of ammonia fumes can cause respiratory irritation that predisposes the horse to respiratory problems. Recent research suggests that in the case of long road journeys there is benefit in removing feces and urine-soaked material during periodic stops.
After Arrival
Horses that travel well will be bright and alert with a normal rectal temperature upon arrival at their destination. Unload horses as soon as possible to avoid additional confinement and other stress factors. They should voluntarily drink and be keenly interested in eating within one to two hours of arrival. Hand walking or turnout in a small paddock for an hour or so upon arrival after a long journey is recommended.
Ideally, dietary adjustments are made over seven to 10 days to decrease the likelihood of digestive upsets. A normal horse passes approximately one pile of manure every three to four hours. Any decrease in manure output should be reported to a veterinarian.
Rectal temperature should be recorded morning and evening. When possible, weigh horses upon arrival and then daily at the same time for the next three to seven days. Comparison with a pre-transport weight is useful to quantify actual weight losses and to assess the effects of shipping. Horses with signs of shipping fever (see section above) will be readily identified by this monitoring system. Some horses will not show signs of shipping fever until two to three days after transport. Occasionally, horses might have colic or diarrhea after shipping. Seek veterinary assistance immediately if transport-associated disease is suspected.
Recovery Times
A specified recovery interval should be part of the pre-shipment plan for horses making long journeys. For road journeys of six to 12 hours, a one-day rest period is likely to be sufficient. When horses travel longer than 12 hours by road or are transported by plane, a recovery period of 2 to 3 days should be planned. Research at UC Davis in horses transported 24 hours by road in a commercial van has shown that physiological parameters, especially white blood cells, take 24 hours to return to normal levels for horses transported in box stalls and an additional day for horses cross-tied during the trip.
Horses traveling long distances for performance events should arrive five to six days prior to the competition date to comply with medication withdrawal rules in the event of travel-associated illness. Horses with shipping fever might need three to four weeks to resume athletic activity.
- Carolyn Stull, MS, PhD, of UC Davis is a Cooperative Extension Specialist and lecturer at UC Davis. She has authored numerous articles on the welfare of horses and livestock and was a major contributor to this Horse Report.
- Anne Rodiek, MS, PhD, has recently retired as a professor in equine studies and has performed research in horse transport, breeding and nutrition for over 30 years.
- Jim Jones, DVM, MS, PhD, a specialist in equine exercise physiology and sports medicine, has been researching transport stress for many years with colleagues at the Japan Racing Association. His most recent work focuses on heart rate variability as a sensitive indicator of stress in traveling horses.
- Desmond Leadon, MA, MVB, MSc, FRCVS, RCVS, is head of clinical pathology at the Irish Equine Center and formerly international director of the American Association of Equine Practitioners. He has a long-standing interest in the long-distance transport of horses.
- Michael Ball, DVM, runs his own practice at Early Winter Equine Medicine & Surgery in Ithaca, N.Y.
We thank these individuals for their contributions.
Written by:
UC Davis Center for Equine Health Horse Report
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Detroit, Michigan |
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The Tigers deserted Tiger Stadium for this ? While Comerica Park is a nice enough new park, is it really a better place to see a game for the average fan ? I don't think so. The seats are further away, the concessions are more expensive, and parking is both more expensive and harder to find. Of all the new retro parks that have been built in the past 10 years, Comerica is probably the least interesting of all of them. The exterior of the park is mostly red brick and very ornate as it is decorated with numerous tigers. Because the park is sunk in, it hardly stands out from other buildings around it. The seating is comfortable, but not as close as it was in Tiger Stadium - either on the lower deck or the upper deck. The park has a strange feel to it, especially down the right field line where there is a break in the seating - this is where the luxury boxes stop. Perhaps the aspect I most disliked about the park is the Tiger Den seating. This is seating on the lower level above the field boxes which consists of more comfortable seats and end tables. A few sections of this would have been sufficient, but to have it extend throughout the whole lower deck goes overboard. It's just takes up too much of the prime seating in the park. The concourse is located in view of the playing field. It is a little narrow, however, as it can become quite crowded. There are plenty of small concession stands as well as one main food court that features a grill as well as several international options (Mexican, Chinese, Sushi). The only complaint I have with the concessions is that there are too many pizza stands, but this isn't surprising since the Tigers are owned by the same guy who owns Little Caesars Pizza. Concession prices seemed about average for an MLB park. The concourse also has a carousel and ferris wheel which kids can ride on - for a fee of course. At least this entertainment is out of sight and does not interfere with the baseball experience. When Comerica Park opened it boasted one of the best scoreboards in baseball. But almost ten years later it looks outdated and is sorely in need of updating. Parking is quite expensive here - especially that which is close to the park. The cheapest parking within walking distance of the park is $10. However, most is either $20 or $25. Comerica Park is clean and comfortable, just not very memorable. |
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Course Description:
This course is designed to enable the student to construct an expository sermon based upon the skills of exegesis. In addition, students will gain experience explaining, proving, and applying a biblical passage and delivering a biblical sermon with or without notes.
Upon completion of the course, you should be able to do the following:
- deliver a sermon derived from the biblical text, with or without the use of notes.
- Have a basic procedure that moves one from the biblical text to a sermon based on that text.
- Develop skill in constructing a clear outline consisting of full, declarative sentences that relate to a basic idea. The outline should also show transitions in parentheses between the major points and if necessary the supporting points. This will be measured by handing in an outline of the first and the final sermon for grading.
- Have a working definition of expository preaching.
- Understand the basic elements in sermon construction and what they should accomplish—introduction, central idea (based on an exegetical idea), transitions, illustrations, development of the sermon, and conclusion.
- Begin to develop a skill in writing a sermon manuscript geared to the way listeners listen.
- Search the Internet for 5 public video-recorded sermons, of 5 different preachers. Watch and listen to each sermon, and write a sermon evaluation.
- Complete quizzes, and exams
- Write an expository sermon on a text of your choice. Your instructor may ask you to deliver your sermon online through the virtual classroom.
Farris, Stephen. Preaching That Matters: The Bible and Our Lives. Louisville: Westminster John Knox Press, 1998.
Graves, Mike. The Sermon As A Symphony: Preaching the Literary Forms of the New Testament. Valley Forge: Jackson Press, 1997.
Course Content
Lesson 1 - What Is Homiletics?
Lesson 2 - The Art of Preaching
Lesson 3 - Basic Elements of Good Preaching
Lesson 4 - Theoretical Constructs
Lesson 5 - Preaching from New Testament Texts


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Visiting the Work of Larry Bell and Dan Flavin
- September 10, 2014 4:00 PM
This program for families with young children is led by a docent and includes a gallery project designed by the Modern's education department. Both the tour and project focus on selected works on view in the galleries. Registration is not required, but attendance is limited. A sign-up sheet is provided at the information desk the day of the program. Admission and supplies are free.


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Milton Mizenberg, Jr. and his wife moved to the South Side Chicago neighborhood of Oakland in the 1980s. He responded to the two derelict lots across from his house by transforming them into the Oakland Museum of Contemporary Art, a public space to appreciate the neighborhood and view his sculpture. It has changed with the neighborhood's fortunes, although it likely exerted influence over the stability of its immediate neighbors, an example of which is seen below.
The best reporting I know about the museum is a 14 minute feature on Mizenberg and the museum from WBEZ that was broadcast September 9, 2003.
The light was a little off, but it'd been too long since I'd taken a photograph of the museum.


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ROSEN, NATIONAL TRIAL COUNSEL, Encourages Alphabet Inc. Investors with Losses to Secure Counsel Before Important Deadline in Securities Class Action – GOOG, GOOGL
NEW YORK, April 30, 2023 (GLOBE NEWSWIRE) — WHY: Rosen Law Firm, a global investor rights law firm, reminds purchasers of securities of Alphabet Inc. (NASDAQ: GOOG, GOOGL), the parent company of Google, between February 4, 2020 and January 23, 2023, both dates inclusive (the "Class Period"), of the important May 15, 2023 lead plaintiff deadline.
SO WHAT: If you purchased Alphabet securities during the Class Period you may be entitled to compensation without payment of any out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Alphabet class action, go to https://rosenlegal.com/submit-
WHY ROSEN LAW: We encourage investors to select qualified counsel with a track record of success in leadership roles. Often, firms issuing notices do not have comparable experience, resources or any meaningful peer recognition. Many of these firms do not actually litigate securities class actions, but are merely middlemen that refer clients or partner with law firms that actually litigate the cases. Be wise in selecting counsel. The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm has achieved the largest ever securities class action settlement against a Chinese Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 4 each year since 2013 and has recovered hundreds of millions of dollars for investors. In 2019 alone the firm secured over $438 million for investors. In 2020, founding partner Laurence Rosen was named by law360 as a Titan of Plaintiffs' Bar. Many of the firm's attorneys have been recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) Alphabet used its dominance in the field of digital advertising to disadvantage website publishers and advertisers who used competing advertising products; (2) the foregoing conduct was anticompetitive in nature and likely to draw significant regulatory scrutiny; (3) Alphabet's revenues were unsustainable to the extent that they were the product of said anticompetitive conduct; (4) Alphabet's conduct, once revealed, would negatively impact the Company's reputation and expose it to a heightened risk of litigation and regulatory enforcement action; and (5) as a result, the Company's public statements were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages.
To join the Alphabet class action, go to https://rosenlegal.com/submit-
No Class Has Been Certified. Until a class is certified, you are not represented by counsel unless you retain one. You may select counsel of your choice. You may also remain an absent class member and do nothing at this point. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff.
Follow us for updates on LinkedIn: https://www.linkedin.com/
Attorney Advertising. Prior results do not guarantee a similar outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
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New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
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Learn About the Law
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FindLaw's Learn About the Law features thousands of informational articles to help you understand your options. And if you're ready to hire an attorney, find one in your area who can help.
At respondent's preliminary hearing in an Ohio state court on charges of forgery of a check in the name of one Bernard Isaacs and of possession of stolen credit cards belonging to Isaacs and his wife, respondent's counsel called as a witness the Isaacs' daughter, who testified that she had permitted respondent to use her apartment for several days while she was away. However, she refused to admit that she had given respondent checks and the credit cards without informing him that she did not have permission to use them. Respondent's counsel did not ask to have the witness declared hostile or to place her on cross-examination. At respondent's subsequent criminal trial, he testified that the daughter had given him her parents' checkbook and credit cards with the understanding that he could use them. When the daughter failed to appear at the trial despite the State's having issued five separate subpoenas to her at her parents' residence, the State offered in rebuttal the transcript of her preliminary hearing testimony, relying on an Ohio statute which permits the use of such testimony when the witness "cannot for any reason be produced at the trial." At a voir dire hearing on admissibility, conducted after the defense objected to the use of the transcript as violative of the Sixth Amendment's Confrontation Clause, the mother, as the sole witness, testified that the daughter had left home soon after the preliminary hearing; that about a year before the trial a San Francisco social worker had communicated with the parents about the daughter's welfare application filed there; that the last time the daughter telephoned, some seven or eight months before trial, she told her parents that she "was traveling" outside Ohio, but did not reveal where she was; that the mother knew of no way to reach the daughter in case of an emergency; and that she did not know of anybody who knew where the daughter was. The trial court admitted the transcript into evidence, and respondent was convicted. Affirming the Ohio Court of Appeals' reversal of the conviction, the Ohio Supreme Court held that the transcript was inadmissible because the daughter had not been actually cross-examined at the preliminary hearing and was absent at trial, the admission of the transcript thus having violated respondent's confrontation right.
The introduction in evidence at respondent's trial of the daughter's [448 U.S. 56, 57] preliminary hearing testimony was constitutionally permissible. Pp. 62-77.
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, POWELL, and REHNQUIST, JJ., joined. BRENNAN, 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 R. Plasco argued the cause and filed a brief for respondent. *
[ Footnote * ] Solicitor General McCree, Assistant Attorney General Heymann, Sara [448 U.S. 56, 58] 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. [448 U.S. 56, 58]
MR. 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.
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 [448 U.S. 56, 59] 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 1 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), 2 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 [448 U.S. 56, 60] 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 [448 U.S. 56, 61] 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). 3 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 [448 U.S. 56, 62] 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).
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). 4 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 [448 U.S. 56, 63] 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) ("[T]here 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, 5 and that "a primary interest secured by [the provision] is the right of cross-examination." Douglas v. Alabama, 380 U.S. 415, 418 (1965). 6 In short, the Clause envisions
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 [448 U.S. 56, 65] of all . . . hearsay `exceptions.'" California v. Green, 399 U.S., at 162 . But a general approach to the problem is discernible.
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. 7
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:
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. 9 [448 U.S. 56, 67]
We turn first to that aspect of confrontation analysis deemed dispositive by the Supreme Court of Ohio, and [448 U.S. 56, 68] 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.
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; [448 U.S. 56, 69] Pointer v. Texas, 380 U.S., at 407 , the Court rejected Green's Confrontation Clause attack. It reasoned:
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, MR. 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.
Counsel's questioning clearly partook of cross-examination as a matter of form. His presentation was replete with leading questions, 11 the principal tool and hallmark of cross-examination. [448 U.S. 56, 71] 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 declarant'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. [448 U.S. 56, 72]
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:
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 [448 U.S. 56, 73] 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 . 12 [448 U.S. 56, 74]
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.
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 evidentiary [448 U.S. 56, 75] proponents, the prosecution bears the burden of establishing this predicate.
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, [448 U.S. 56, 76] 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, 13 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 [448 U.S. 56, 77] 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.
[ Footnote 2 ] 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."
[ Footnote 3 ] 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).
[ Footnote 4 ] 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.
[ Footnote 5 ] 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).
[ Footnote 6 ] 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 [448 U.S. 56, 64] 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 .
[ Footnote 7 ] 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).
[ Footnote 8 ] 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").
[ Footnote 9 ] 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 [448 U.S. 56, 67] 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 [448 U.S. 56, 68] 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 a new 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.
[ Footnote 10 ] 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 difficulty 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 [448 U.S. 56, 70] 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).
[ Footnote 11 ] 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. . . ."
[ Footnote 12 ] 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").
[ Footnote 13 ] In Mancusi, the declarant "who had been born 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 retired 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.
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. 1 [448 U.S. 56, 78]
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. 3 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 [448 U.S. 56, 80] 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 U.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. 4 Although Anita's mother testified that she had no [448 U.S. 56, 81] 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) 5 might have discovered Anita's whereabouts [448 U.S. 56, 82] 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."
[ Footnote 1 ] 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 [448 U.S. 56, 78] 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) (BRENNAN, J., dissenting).
[ Footnote 2 ] "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."
[ Footnote 3 ] 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.
[ Footnote 4 ] 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 [448 U.S. 56, 81] 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).
[ Footnote 5 ] 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. [448 U.S. 56, 83]
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Citation: 448 U.S. 56
Docket No: No. 78-756
Argued: November 26, 1979
Decided: June 25, 1980
Court: United States Supreme Court
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text:
When the man groaned, I thought he was reading the obituary section of the paper and had found some tragic news there. When he began to curse, my curiosity became too strong and I had to find out what was wrong so I asked him: "Whatsamatter?"
"My horoscope. It says: 'You are not likely to perform well those tasks you find distasteful tomorrow. It might be wiser to postpone them until you are in a better frame of mind.' I'm supposed to be in divorce court tomorrow. Oh no!"
He fumbled about in his jacket pocket, extracted a cell phone and walked away from the bar stabbing furiously at dial buttons.
Another customer snorted in disgust. "Look at him, the superstitious fool. Changing his plans because of that astrology garbage. I thought only gullible weirdoes like the Reagans believed that garbage."
I retrieved the discarded newspaper and ordered a beer. "What's your sign?" I asked the bartender as he brought me a cold, foamy mug of beer.
"Taurus," he answered while wiping a stubborn lipstick smear from a glass. "Don't tell me you believe that junk?"
"Taurus. It says: 'You tend to depend too heavily on chance and luck to get you over the rough spots. Try being more practical and down to earth."
"See? It goes to show what a pile of crap that stuff is. It makes me sound like a riverboat gambler. I don't even buy lottery tickets."
He fumbled the glass and made a desperate grab for it. He nearly caught it before he knocked it careening into the back bar where it cracked a mirror.
"Yeeoow!" he bellowed. "Now look what I've done! Seven years of bad luck to look forward to."
"It's only a little crack," a fat man deadpanned. "Maybe you'll get off with three-to-five."
"What's your sign?" I asked him.
"I don't believe any of that trash," he growled.
"C'mon. Be a sport," I chided.
He hesitated, then said, "Leo."
"Leo. It says: 'You are shrewd and calculating and a formidable business adversary. You should guard against being too cold, unfeeling and cruel."
"See? What rubbish! I told you that stuff was a crock. Gimme another Bud, barkeep."
The bartender drew a loud hiss and a glass of foam out of the tapper. "Woah, we're out of Bud. How 'bout a glass of Michelob until I get a new keg in?"
"A man outta be able to get his own brand around here. I got a good mind to tell the boss. Maybe I'll tell him how you were screwin' around and broke that mirror, too."
"…C'mon, man. I need this job. I got a wife and baby and I'm trying to work my way through school."
"You shoulda thought about that before you let the keg run dry and broke that mirror. If you got a wife and kid, you outta get yourself a real job instead of playin' around in college."
"Lay off the kid," another man piped up. "He don't mean nothin'."
"What's your sign?" I asked, hoping to diffuse the situation.
"Cancer," he replied, eagerly taking my cue.
"Cancer, huh? Hmmm… lessee, it says: 'You sometimes pretend to be knowledgeable about subjects which you really aren't. Memory exercises would help your forgetfulness."
"You see? Now that proves how wrong that baloney is. Those newspaper horoscopes are just made up by some two-bit writer. The real astrologers consult NASA for planetary positions and plot their movements on a graph to determine tidal pull. The tidal pull tells us what people are gonna do because we're all actually 99% water. They can predict what's gonna happen to you by keepin' an eye on what direction your water is being yanked."
Everyone stifled a laugh and I asked him: "Why would they want to plot them on a graph?"
"…Why would who plot what on a graph?"
"Never mind…"
The man who made the phone call returned. I gave him back his newspaper.
"There," he sighed. "Now I've managed to postpone my court date. I changed all my other appointments for tomorrow as well. It peeved everybody but I told 'em I had a death in the family and had to leave town."
The bartender shook his head. "I don't know about you, man. How can you run your life around a bunch of superstitious hogwash?"
"What've you got there?" the man asked, pointing to something fuzzy in the bartender's hand.
"Rabbit's foot. I've had it for years. It's my good luck charm."
"What do you need to rub a rabbit's foot for?" Cancer asked.
"Because I just broke that mirror, you rube. Can't you remember?"
"Hey, pipe down or I'll rat on you to your boss and have you fired," Leo barked, shaking a threatening finger at him.
Leo snatched the paper and asked me, "What's your sign?"
"Libra…" I told him.
"Lessee… Libra. It says: 'It might seem like the harder you try to please others, the less you are appreciated. You should mind your own business."
"AMEN," the others added in unison.
It's a good thing I'm not superstitious.
-Dave Aho