Amdt6.5.3.5 Confrontation of Witnesses Lacking Memory

Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

In one vein of cases, the Court has examined the degree to which lack of memory on the part of a testifying witness implicates the Confrontation Clause.1 For instance, in Delaware v. Fensterer,2 the Court disagreed that a defendant’s confrontation rights had been violated when an expert witnesses testified but could not remember the basis of his theory, which the defendant argued deprived him of an adequate opportunity for cross-examination.3 The Court explained that in general, “the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” 4 The Court noted that the defendant had an opportunity to effectively cross-examine the expert witness, including into his lack of recollection.5 In addition, according to the Court, 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.” 6 The Court reached a similar conclusion three years later when it rejected a Confrontation Clause challenge to testimony of a complaining witness concerning his prior identification of the defendant—the details of which he could not remember due to memory loss.7 Citing to Fensterer, the Court explained that “[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 . . . the very fact that he has a bad memory.” 8

In California v. Green, however, the Court expressly declined to consider whether the Confrontation Clause barred the introduction of prior out-of-court statements by a witness concerning events “that he could not remember” at trial. 399 U.S. at 168–69. back
474 U.S. 15 (1985). back
Id. at 20–22. back
Id. at 20. back
Id. at 20. back
Id. at 21–22. back
United States v. Owens, 484 U.S. 564 (1988). back
Id. at 559 (citation omitted). back