484 U.S. 554 (1988).
One-Sentence Takeaway: The Confrontation Clause of the Sixth Amendment does not bar the admission of prior, out-of-court statements of identification when a witness is unable, because of memory loss, to explain the basis for the prior identification, and the prior out-of-state identification is not hearsay where the witness takes the stand and is subject to cross-examination.
Summary: A correctional officer was attacked and beaten by Defendant which resulted in memory loss. An FBI agent spoke to the victim, and the victim identified the Defendant as the attacker.
At trial, the victim took the stand and testified that he remembered identifying the Defendant, but he could not remember (due to memory loss) seeing the Defendant at the time of the assault and he also could not remember other visitors to his hospital room.
Defendant objected to the out-of-court identification by the victim and claimed that it violated his rights under the Confrontation Clause because the victim’s memory loss deprived Defendant the opportunity to cross-examine the victim. Defendant also objected that the out-of-court identification constituted inadmissible hearsay.
The United States Supreme Court held that the admission of the out-of-court identification did not violate the Confrontation Clause and it did not constitute hearsay.
The Court explained that the Confrontation Clause does not bar the introduction of an out-of-court statement of a testifying witness with memory loss, because the Clause “guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Rather, “[i]t is sufficient that the defendant has the opportunity to bring out such matters as the witness’ bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination) the very fact that he has a bad memory.” Id. at 559.
The Court further explained that the out-of-court identification was not hearsay because the victim willingly took the stand under oath and was subject to cross-examination.
REFERENCE DESK:
Summary
Federal Courts
Bugh v. Mitchell, 329 F.3d 496 (6th Cir. 2003):
The district court found that United States v. Owens, 484 U.S. 554 (1988) governed this issue. In Owens, the Supreme Court held that the Confrontation Clause does not bar the admission of prior, out-of-court statements of identification when a witness is unable, because of memory loss, to explain the basis for the prior identification. The Supreme Court explained that the Confrontation Clause “guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” This opportunity is not denied “when a witness testifies as to his current belief but is unable to recollect the reason for that belief.” According to the Court, it “is sufficient that the defendant has the opportunity to bring out such matters as the witness’ bias, his lack of care and attentiveness, his poor eyesight, and even . . . the very fact that he has a bad memory.” Id.; see also Delaware v. Fensterer, 474 U.S. 15, 21-22, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam) (holding that the Confrontation Clause was not violated where an expert witness who testified as to his opinion could not recollect the basis upon which he had formed that opinion). Further, in Fensterer, the Court explained that:
The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.
The Owens Court found this principle applied equally in the case of out-of-court statements.
Bugh v. Mitchell, 329 F.3d 496 (6th Cir.2003):
Holding that the trial court did not err in admitting a four-year-old child victim’s hearsay statements because she was subject to cross-examination regarding her inability to remember and her inarticulate responses.
United States v. McHorse, 179 F.3d 889 (10th Cir.1999):
The court finding no Confrontation Clause violation where a child victim testified at trial but was unable to recall the defendant’s sexual abuse and the defendant chose not to cross-examine the witness.
United States v. Milton, 8 F.3d 39 (D.C.Cir.1993):
The court finding no Confrontation Clause violation and upholding admission of prior statements under Federal Evidence Rule 801(d)(1)(A) when the witness testified at trial and was subject to cross-examination but could not remember events or prior statements.
California
People v. Perez, 82 Cal.App.4th 760 (2000):
[I]n United States v. Owens (1988) 484 U.S. 554, the United States Supreme Court adopted Justice Harlan’s view. “[W]e agree with the answer suggested 18 years ago by Justice Harlan. ‘[T]he Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”’” “The weapons available to impugn the witness’ statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee.” When the declarant “is present at trial and subject to unrestricted cross-examination,” “the traditional protections of the oath, cross-examination, and the opportunity for the jury to observe the witness’ demeanor satisfy the constitutional requirements.”
Owens was anticipated in California by People v. O’Quinn, supra, 109 Cal.App.3d 219, 226–228, which concluded there was no violation of the constitutional right to confrontation when, “although [the witness] was ostensibly unable to remember the circumstances of the crime or her statements to the police, she was nevertheless on the stand and available for cross-examination.” Owens has been followed by the California Supreme Court. (People v. Cummings (1993) 4 Cal.4th 1233, 1292, fn. 32 [also applying its rationale to the confrontation clause in the California Constitution].) Aguilar cites People v. Rios (1985) 163 Cal.App.3d 852, 864–866, but Rios is distinguishable because there the witnesses refused to answer any questions.
Delaware
Tucker v. State, 564 A.2d 1110 (Del.1989):
The court holding that because the child abuse victim was available for cross-examination, the victim’s lack of memory did not violate the defendant’s rights under the Confrontation Clause.
Georgia
London v. State, 549 S.E.2d 394 (Ga.2001):
The Court finding that a four-year-old child witness’s evasive, forgetful, and unresponsive answers at trial made her prior inconsistent statements admissible and that there was no Confrontation Clause problem because the defendant had an opportunity for cross-examination.
Montana
State v. Jenkins, 23 P.3d 201, 203 (Mont.2001):
When a witness, who suffered from Alzheimer’s, testified at trial that she had no memory of event and was subject to cross-examination, the court held that the State properly introduced her prior inconsistent statements under Montana Evidence Rule 801(d)(1)(A) and found no Confrontation Clause violation under Owens.