United States v. Owens

Decision Date23 February 1988
Docket NumberNo. 86-877,86-877
Citation108 S.Ct. 838,98 L.Ed.2d 951,484 U.S. 554
PartiesUNITED STATES, Petitioner v. James Joseph OWENS
CourtU.S. Supreme Court
Syllabus

As a result of injuries suffered in an attack at a federal prison, correctional counselor John Foster's memory was severely impaired. Nevertheless, in an interview with the investigating FBI agent, Foster described the attack, named respondent as his attacker, and identified respondent from photographs. At respondent's Federal District Court trial for assault with intent to commit murder, Foster testified, inter alia, that he clearly remembered so identifying respondent. On cross-examination, however, he admitted that he could not remember seeing his assailant, seeing any of his numerous hospital visitors except the FBI agent, or whether any visitor had suggested that respondent was the assailant. Defense counsel unsuccessfully sought to refresh his recollection with hospital records, including one indicating that he had attributed the assault to someone other than respondent. Respondent was convicted, but the Court of Appeals reversed, upholding challenges based on the Confrontation Clause of the Sixth Amendment and Rule 802 of the Federal Rules of Evidence, which generally excludes hearsay.

Held: Neither the Confrontation Clause nor Rule 802 is violated by admission of a prior, out-of-court identification statement of a witness who is unable, because of memory loss, to explain the basis for the identification. Pp. 557-564.

(a) The Confrontation Clause, which guarantees only an opportunity for effective cross-examination, not successful cross-examination, is satisfied where, as here, the defendant has a full and fair opportunity to bring out the witness' bad memory and other facts tending to discredit his testimony. Cf. Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). This analysis is not altered by the fact that the testimony here involved an out-of-court identification that would traditionally be categorized as hearsay, since the Confrontation Clause's requirements are satisfied when a hearsay declarant is present at trial, takes an oath, is subject to unrestricted cross-examination, and the jury has an opportunity to observe his demeanor. Pp. 557-564.

(b) The Court of Appeals erred in holding that Rule 801(d)(1)(C)—under which a prior identification statement is not hearsay if the declarant is "subject to cross-examination concerning the statement"—did not apply to Foster's identification statement because of his memory loss. A more natural reading of the Rule is that a witness is "subject to cross-examination" when, as here, he is placed on the stand, under oath, and responds willingly to questions. Meaningful cross-examination within the Rule's intent is not destroyed by the witness' assertion of memory loss, which is often the very result sought to be produced by cross-examination, and which can be effective in destroying the force of the prior statement. Moreover, the Rule does not on its face require more than that the cross-examination "concer[n] the statement." The Advisory Committee's notes on the Rule, the Rule's legislative history, and the language of Rule 804(a)(3)—which, in defining "unavailability as a witness" to include memory-loss situations, demonstrates Congress' awareness of the recurrent evidentiary problem of witness forgetfulness—all support this reading of the Rule. Respondent's contention that this reading is impermissible because it creates an internal inconsistency in the Rules—i.e., the forgetful witness who is deemed "subject to cross-examination" under Rule 801(d)(1)(C) is simultaneously deemed "unavailable" under Rule 804(a)(3)—is semantic rather than substantive. Because the characterizations in the two Rules were made for entirely different purposes, there is no requirement or expectation that they should coincide. Pp. 561-564.

789 F.2d 750, (CA 9 1986), reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 564. KENNEDY, J., took no part in the consideration or decision of the case.

William C. Bryson, Washington, D.C., for petitioner.

Allan Ides, Los Angeles, Cal., for respondent.

Justice SCALIA delivered the opinion of the Court.

This case requires us to determine whether either the Confrontation Clause of the Sixth Amendment or Rule 802 of the Federal Rules of Evidence bars testimony concerning a prior, out-of-court identification when the identifying witness is unable, because of memory loss, to explain the basis for the identification.

I

On April 12, 1982, John Foster, a correctional counselor at the federal prison in Lompoc, California, was attacked and brutally beaten with a metal pipe. His skull was fractured, and he remained hospitalized for almost a month. As a result of his injuries, Foster's memory was severely impaired. When Thomas Mansfield, an FBI agent investigating the assault, first attempted to interview Foster, on April 19, he found Foster lethargic and unable to remember his attacker's name. On May 5, Mansfield again spoke to Foster, who was much improved and able to describe the attack. Foster named respondent as his attacker and identified respondent from an array of photographs.

Respondent was tried in Federal District Court for assault with intent to commit murder under 18 U.S.C. § 113(a). At trial, Foster recounted his activities just before the attack, and described feeling the blows to his head and seeing blood on the floor. He testified that he clearly remembered identifying respondent as his assailant during his May 5th interview with Mansfield. On cross-examination, he admitted that he could not remember seeing his assailant. He also admitted that, although there was evidence that he had received numerous visitors in the hospital, he was unable to remember any of them except Mansfield, and could not remember whether any of these visitors had suggested that respondent was the assailant. Defense counsel unsuccessfully sought to refresh his recollection with hospital records, including one indicating that Foster had attributed the assault to someone other than respondent. Respondent was convicted and sentenced to 20 years' imprisonment to be served consecutively to a previous sentence.

On appeal, the United States Court of Appeals for the Ninth Circuit considered challenges based on the Confronta- tion Clause and Rule 802 of the Federal Rules of Evidence.1 By divided vote it upheld both challenges (though finding the Rule 802 violation harmless error), and reversed the judgment of the District Court. 789 F.2d 750 (1986). We granted certiorari, 479 U.S. 1084, 107 S.Ct. 1284, 94 L.Ed.2d 143 (1987), to resolve the conflict with other Circuits on the significance of a hearsay declarant's memory loss both with respect to the Confrontation Clause, see, e.g., United States ex rel. Thomas v. Cuyler, 548 F.2d 460, 462-463 (CA3 1977), and with respect to Rule 802, see, e.g., United States v. Lewis, 565 F.2d 1248, 1252 (CA2 1977), cert. denied, 435 U.S. 973, 98 S.Ct. 1618, 56 L.Ed.2d 66 (1978).

II

The Confrontation Clause of the Sixth Amendment gives the accused the right "to be confronted with the witnesses against him." This has long been read as securing an adequate opportunity to cross-examine adverse witnesses. See, e.g., Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895); Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). This Court has never held that a Confrontation Clause violation can be founded upon a witness' loss of memory, but in two cases has expressly left that possibility open.

In California v. Green, 399 U.S. 149, 157-164, 90 S.Ct. 1930, 1934-38, 26 L.Ed.2d 489 (1970), we found no constitutional violation in the admission of testimony that had been given at a preliminary hearing, relying on (as one of two independent grounds) the proposition that the opportunity to cross-examine the witness at trial satisfied the Sixth Amendment's requirements. We declined, however, to decide the admissibility of the same witness' out-of-court statement to a police officer concerning events that at trial he was unable to recall. In remanding on this point, we noted that the state court had not considered, and the parties had not briefed, the possibility that the witness' memory loss so affected the petitioner's right to cross-examine as to violate the Confrontation Clause.2 Id., at 168-169, 90 S.Ct., at 1940-41. Justice Harlan, in a scholarly concurrence, stated that he would have reached the issue of the out-of-court statement, and would have held that a witness' inability to "recall either the underlying events that are the subject of an extra-judicial statement or previous testimony or recollect the circumstances under which the statement was given, does not have Sixth Amendment consequence." Id., at 188, 90 S.Ct., at 1951.

In Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam ), we determined that there was no Confrontation Clause violation when an expert witness testified as to what opinion he had formed, but could not recollect the basis on which he had formed it. We said:

"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." Id., at 21-22, 106 S.Ct., at 295.

Our opinion noted that a defendant seeking to discredit a forgetful expert witness is not...

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