¶1Concurring Opinion
¶2I feel required in this case to add to that which has been said by the Chief Justice with regard to the admissibility at trial of the Patrick deposition. The right to confrontation is a trial right which includes the right to cross-examine the State’s witnesses and to have the jury judge their demeanor. Barber v. Page, (1968) 390 U.S. 719, 88 *357S.Ct. 1318, 20 L.Ed.2d 255. A waiver thereof should be an express, intentional act of the accused after having been informed of the nature of such right. Johnson v. Zerbst, (1938) 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. There is no such waiver shown on this record, and I would therefore resolve this issue by deciding whether the admission of the deposition deprived appellant of the right to confrontation. Here, the witness was unavailable to the State at the time of trial. The unavailability of the witness was in no way the fault of the State. Under such circumstances the Patrick statements could properly have been admitted consistent with the right of confrontation if they had been given at a prior trial or preliminary hearing at which a full opportunity to cross-examine existed. Mattox v. United States, (1895) 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409; California v. Green, (1970) 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489. Here however there was no trial or hearing, but only a deposition upon oral examination. Nevertheless, absent special circumstances, the deposition of an unavailable witness should be admitted on the same basis as prior trial or hearing testimony. Here the deponent received a subpoena to appear for the deposition in an ongoing court case; he testified under oath to questions by opposing counsel, several of which questions were intended to probe his ability to recall the events about which he was testifying and to probe areas of possible bias and prejudice; his statements were taken down by a court reporter. The absence of a judge from the room would not significantly distract from the compulsion one would feel on such an occasion to tell the truth. The deponent Patrick was not evasive, but was open and direct in his answers. The examination revealed little reason for the witness to exaggerate or falsify, other than factors which would be readily apparent to the jury in any event; namely, he would have been irked at losing his commission because of the theft of the car and was under the influence of his employer to cooperate in the prosecution. The deponent testified in substance that he was a salesman for a *358Sears tire center and that appellant came to the store, identified himself as Robert Johnson, ordered a set of tires to be put on, and left. Later he identified appellant as this customer from an array of from six to ten photos. Most of this statement was corroborated by other witnesses and physical evidence. Finally, there is nothing on the record which suggests that there would have been any line of questioning upon cross-examination which could have been employed before the jury, had the witness been present and testifying. Under the circumstances of this case the deposition provided the jury with a satisfactory basis for evaluating the deponent’s statements and therefore its use at trial was in accord with the demands of the confrontation clause.
¶3Note. — Reported at 375 N.E.2d 215.