United States v. Owens
484 U.S. 554 (1988)
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Rule of Law:
Neither the Confrontation Clause of the Sixth Amendment nor the Federal Rules of Evidence bars the admission of a witness's prior, out-of-court identification, even when the witness is unable to recall the basis for that identification due to memory loss at the time of trial.
Facts:
- On April 12, 1982, John Foster, a correctional counselor at a federal prison, was attacked and brutally beaten with a metal pipe.
- Foster sustained a fractured skull and was hospitalized for nearly a month, resulting in severely impaired memory.
- During an initial interview on April 19, Foster was lethargic and could not recall his attacker's name.
- On May 5, in a subsequent interview with FBI agent Thomas Mansfield, a much-improved Foster described the attack, named respondent James Owens as his assailant, and identified Owens from a photographic array.
- At Owens's trial, Foster testified that he clearly remembered identifying Owens during the May 5th interview.
- However, on cross-examination, Foster admitted that due to his injuries, he could no longer remember seeing his assailant at the time of the attack.
- Foster also could not remember any of his other hospital visitors and could not recall whether any of them had suggested that Owens was the assailant.
Procedural Posture:
- James Owens was tried in Federal District Court for assault with intent to commit murder.
- The trial court admitted testimony from the victim, John Foster, regarding his prior out-of-court identification of Owens.
- A jury convicted Owens, and he was sentenced to 20 years in prison.
- Owens, as the appellant, appealed his conviction to the United States Court of Appeals for the Ninth Circuit.
- The Ninth Circuit, in a divided decision, reversed the conviction, holding that the admission of Foster's identification violated both the Confrontation Clause and Federal Rule of Evidence 802.
- The United States, as the petitioner, successfully petitioned the U.S. Supreme Court for a writ of certiorari.
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Issue:
Does the admission of a witness's out-of-court identification violate either the Confrontation Clause of the Sixth Amendment or Federal Rule of Evidence 802 when the witness is unable to recall the basis for the identification due to memory loss?
Opinions:
Majority - Justice Scalia
No. Neither the Confrontation Clause nor the Federal Rules of Evidence is violated by the admission of an identification statement from a witness who cannot, due to memory loss, testify about the basis for the identification. The Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way the defense might wish. The ability to question the witness about their lack of memory, potential biases, or other infirmities satisfies this requirement. The defense can still expose the witness's forgetfulness to the jury, which is a primary function of cross-examination. Similarly, under Federal Rule of Evidence 801(d)(1)(C), a declarant is 'subject to cross-examination concerning the statement' as long as they are placed on the stand, under oath, and respond to questions, even if the response is a lack of memory. The Rule was designed to admit more contemporaneous, and often more reliable, out-of-court identifications, particularly in cases where a witness's memory fades over time.
Dissenting - Justice Brennan
Yes. The admission of the out-of-court identification violates the Confrontation Clause because the witness's profound memory loss rendered him incapable of being effectively cross-examined, thereby depriving the jury of a satisfactory basis to evaluate the truth of the prior statement. The majority reduces the right of confrontation to a hollow, procedural formality. True confrontation requires an 'effective' cross-examination, which was impossible here because the witness could not affirm, explain, or elaborate on his out-of-court statement. The defense could not probe the key hearsay dangers of misperception and memory failure at the time of the event. Because Foster's memory loss was so complete, he was merely a conduit for his past, unchallengeable statement, which is precisely the situation the Confrontation Clause was designed to prevent.
Analysis:
This decision significantly clarifies the meaning of 'subject to cross-examination' under the Confrontation Clause, establishing that a witness's physical presence and willingness to answer questions is sufficient, even with complete memory loss about the underlying event. It prioritizes the procedural opportunity to confront a witness over the substantive ability to extract specific information, reinforcing that the jury is the ultimate arbiter of a witness's credibility. The ruling also aligns the interpretation of Federal Rule of Evidence 801(d)(1)(C) with this constitutional standard, favoring the admissibility of out-of-court identifications and providing prosecutors a stronger basis to use such evidence when witnesses' memories have degraded.
