dissenting. Evid. R. 804 provides in part:
“(B) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
“(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, * * * if the party against whom the testimony is now offered * * * had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. * * *”
In the case at bar, the witness was unavailable pursuant to Evid. R. 804(A), which states,
“Definition of unavailability. ‘Unavailability as a witness’ includes situations where the declarant:
* *
“(5) is absent from the hearing and the proponent of his statement has been unable to procure his attendance * * * by process or other reasonable means. * * *”
The majority does concede that appellee had an opportunity and similar motive to develop Huff’s testimony at appellee’s first trial. In fact, the majority states that Huff was “thoroughly cross-examined by appellee’s counsel.” In addition, the majority finds that Huff’s former testimony clearly bears sufficient indicia of reliability.
Nevertheless, the majority holds that Huff’s former testimony is inadmissible because the prosecutor, as the proponent of the testimony, failed to establish through sworn testimony that the witness was unavailable, even though the prosecutor explained to the trial court that subpoenas had been issued and that the county sheriff had been requested to conduct an ongoing search for the witness. In my view, such a holding is untenable and not mandated by the Confrontation Clause.
*234In Ohio v. Roberts (1980), 448 U.S. 56, the United States Supreme Court stated at 65:
“* * * 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.”
The United States Supreme Court further observed at fn. 7, at 65:
“A demonstration of unavailability, however, is not always required.
* *
That being the case, Ohio v. Roberts, supra, requires no greater demonstration of unavailability under the Confrontation Clause than is required by our Rules of Evidence. Evid. R. 104(A) states:
“* * * Preliminary questions concerning the * * * admissibility of evidence shall be determined by the court * * *. In making its determination it is not bound by the rules of evidence except those with respect to privileges.”
It is quite clear that the Rules of Evidence do not compel the formal presentation of sworn testimony on preliminary matters affecting the admissibility of evidence, yet that is precisely the nature of the majority’s decision. I would hold that all that is necessary is that the prosecutor satisfy the trial court that the. witness is unavailable and that a good faith attempt has been made to secure the witness’ attendance. No formal testimony is necessary and, in resolving these preliminary questions of admissibility, the trial court is not bound by the Rules of Evidence. Evid. R. 104(A). See my dissenting opinions in State v. Roberts (1978), 55 Ohio St. 2d 191, 199 [9 O.O.3d 143], and State v. Smith (1979), 58 Ohio St. 2d 344, 349 [12 O.O.3d 313]. Cf. my concurring opinion in State v. Young (1983), 5 Ohio St. 3d 221, 227. As a result, the majority has not advanced any recognized constitutional guarantee, but rather announces an “ad hoc amendment” of the Rules of Evidence. E.g., State v. Mowery (1982), 1 Ohio St. 3d 192, 202, concurring and dissenting opinion of Celebrezze, C.J.
Accordingly, I would reverse the decision of the court of appeals below.
Locher and Holmes, JJ., concur in the foregoing dissenting opinion.