Record and brief — United States v. Owens

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Status:

B6-8/7-CFY

2cketed:

ecemoer 14 1986

Date

GRANTED

1986

Titles: United States, Petitioner

James Joseoh Owens

Courts: United States Court of Appeals

for the Ninth Circuit

Counsel for petitioner: Solicitor General

Counsel for respondent: Ides,sAllan

Note Proceedings and Orders

Apolication for extension of time to file petition and

order granting same until December 14 1986 (O*Connor,

“try

1 Oct

2 Dec

5 Oct

5 Dec

$ Jan

7 Jan

3 Jan

, Jan

19 Feo

12 Feo

5 Mar

6 “Mar

1> Mar

i?” Aor

13s Aor

ly Aor

re | May

2 May

5 May

£6 Jun

25 Jul

26 Aug

27 Oct

23 NOV

1986

1987

1967

1987

1967

1987

1967

1987

Octooer 20 1986).

G Petition for writ of certiorari filed.

Response receivec to above apolication for extension of

time (A-294) on October 27 1986.

Orcser extending time to tile response to petition until

January 154 1987.

DISTRIBUTED. February 204 1987

X Brief of respondent James Je Owens in opposition filed.

G Motion of responcent for leave to proceed in forma

pauperis filed.

KX Reply brief of petitioner United States filed.

Motion of respondent for Leave to proceed in forma

pauperis GRANTED.

Petition GRANTED.

PR RRR RRS RSS ASE RRR R RSE RRRRRRRRE RARER RERRRRA RRR ERR RAR SRSA SE SS

re) Motion of respondent for aooointment of counsel filed.

DISTRISBUTED. March 2Us 1987. (Motion of respondent for

appointment of counsei).

Motion for appointment of counsel GRANTED and it is

ordered that Allan Idess Esquires of Los Angeles,

Californias is appointed to serve as counsel for the

respondent in this case.

Order extending time to file brief of petitioner on the

merits until Aoril 237 1987.

Joint apoendix filed.

Brief of petitioner United States filed.

Order extending time to file brief of respondent on the

merits until June 8, 1987.

Record filed.

Certified copy of original record and proceedcingss 14

volumes, received.

Brief of respondent James J. Owens filed.

CIRCULATED.

SET FOR ARGUMENT. Weanesdays November 47 1987. (2nd

case).

KX Reoly brief of petitioner United States filed.

ARGUED.

PETITION

FOR WRIT OF

CERTIORARI

OCTOBER TERM, 1986

UNITED STATES OF AMERICA, PETITIONER

Vv.

JAMES JOSEPH OWENS

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES FRIED

Solicitor General

WILLIAM F. WELD -

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

ROBERT H. KLONOFF

Assistant to the Solicitor General

JOHN F. DE PUE

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the Confrontation Clause was violated as

a result of the in-court testimony of an assault victim, who

recalled in detail his pretrial identification of respondent

as his assailant but who could not remember certain details

of the assault itself.

2. Whether Fed. R. Evid. 801(d)(1)(C) bars an assault

victim from testifying at trial about his out-of-court iden-

tification of his assailant, when the victim has suffered a

partial memory loss concerning the assault but has a full

recollection of the identification.

(1)

TABLE OF CONTENTS

Page

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ED ens pac icnsuceunaennnséasesessaeetseneeeee l

Constitutional provision and rule involved ................. 2

PED ccdueshs ccbecestieuece cetuicedteseseneee 2

Reasons for granting the petition ....................0005: 10

GES. dhuccddcceckecbussceocsceneseeeseeneeeae 23

NED 86 6n.décvccsccensieesdevcessceenssaseeee la

REED cvcccecosovetskhbentes cackcunatethe tei 3la

REREEEINS cucccovccocsnendidussesunseuueesaseeseee 32a

TABLE OF AUTHORITIES

Cases:

Black v. Woods, 651 F.2d 528, cert. denied, 454 U.S.

DP ecccesacdcudbetinnnsees 6e4ssuscenenneneaanal 18

California v. Green, 399 U.S. 149 ... 0.0... ee eee. 12, 13, 16

Davis v. Alaska, 415 U.S. 308 ... 2... cee 16

Delaware v. Fensterer, rev’'g 493 A.2d 959 No. 85-214

SO ccngatebeednnnaukech beni 10, 11, 12, 14, 17

Delaware v. Van Arsdall, No. 84-1279 ................. 16

Dutton v. Evans, 400 U.S. 74 . 0... cc cee eee 13

Mattox v. United States, 156 U.S. 237 ................. 17

Mayes v. Sowders, 621 F.2d 850, cert. denied, 449 U.S.

GS csceceschasesdsbesessesteeeneusneeeeeee 16

GRap OC. GRRE, GES ae TD oo sh ne cucecccesepectces 13, 14

People v. Green, 3 Cal. 3d 981, 92 Cal. Rptr. 494, 479

P.2d 998, cert. dismissed, 404 U.S. 801 ........... —

People v. Pepper, 193 Colo. 50S, 568 P.2d 446 ........... 14

Reynolds v. United States, 98 U.S. 145 ................ 18

Robinson v. State, 102 Wis.2d 343, 306 N.W.2d 668 ..... 14

State v. Lomax, 227 Kan. 651, 608 P.2d 959 ............ 16

Steele v. Taylor, 684 F.2d 1193, cert. denied, 460 U.S.

ED occensencccscecaceésteessesslaneeeee 18

Thomas v. Cardwell, 626 F.2d 1375, cert. denied, 449 U.S.

SEED consccccecsncccéduceessoucnessel 14

United States v. Baker, 722 F.2d 343, cert. denied, 465

ls GED oscccccccaccenenssuessecis ee 15, 20

Cases — Continwed:

L'wited States v. Carlson, 547 F.2d 1346, cert. denied,

I 9 ee ile ee ee ee eee wees

United States v. DiCaro, 772 F.2d 1314, cert. denied, No.

ee ei ci beemes eee

United States v. Distler, 671 F.2d 954, cert. denied, 454

ae oe ee eeeee sé

United States v. Elemy, 656 F.2d 907 .... 2.2... 2 eee.

United States v. Fiore, 443 F.2d 112, cert. denied, 410

ee ee ene ec ad ececedbaeeeet«

United States v. Infelice, 506 F.2d 1358, cert. denied, 419

ee sk eee ee wus

United States v. Ingram, 600 F.2d 260 .................

United States v. Insana, 423 F.2d 1165, cert. denied, 400

ee le a dd i Cc ceeueenenees

United States v. Kelly, 349 F.2d 720, cert. denied, 384

Sa a la en Ph eee ees

United States v. Lewis, 565 F.2d 1248, cert. denied, 435

aie adh i ees oe ee

-~ United States v. Marchand, 564 F.2d 983, cert. denied,

EE ae ea

United States v. Marshall, 532 F.2d 1279 ..............

United States v. O’Malley, 796 F.2d 891 ...............

United States v. Payne, 492 F.2d 449, cert. denied, 419

EE a ee a a

United States v. Riley, 657 F.2d 1377, cert. denied, 459

Se ee

United States v. Rogers, 549 F.2d 490, cert. denied, 431

EE a a

United States v. Russell, 712 F.2d 1256 ................

United States v. Smalls, 438 F.2d 711, cert. denied, 403

ee ade eae

United States v. Thevis, 665 F.2d 616, cert. denied, 456

ee cide cu bitewe sees

United States ex rel. Thomas v. Cuyler, 548 F.2d 460 ....

Van Hatten v. State, 666 P.2d 1047 ...................

Co ee

Constitution, statute and rules:

U.S. Const.:

Amend. V (Self-Incrimination Clause) ............

Amend. VI (Confrontation Clause) ...............

10, 11, 14, 16,

Page

15, 20

14, 15

8, 13

2, 9,

17, 19

Constitution, statute and rules — Continued: Page

Ce ee eee hnacenieeweseenne yes 2

Fed. R. Evid.:

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es ok cope neecee whadu ka 2, 20, 21, 23

RRS Se 10, 19, 22, 23

re Cbd deck dudednuubicesen 19, 22, 23

ee ee doi buadenceeeeeerhnnber passim

Tice eee bdeenseenuseuet 10, 18

a a ds go csc du ebseusseevsaveds 20

i ee heck etecéedepadueeudeown 20

cus Cee deewesceneesagus 20

Miscellaneous:

121 Cong. Rec. 31866-31867 (1975) ............620045- 21

H.R. Rep. 94-855, 94th Cong., Ist Sess. (1975) ......... 21

4 D. Louisell & C. Mueller, Federal Evidence (1980) ..... 20, 21

S. Rep. 94-199, 94th Cong., Ist Sess. (1975) ............ 21

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1986

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

JAMES JOSEPH OWENS

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of the United States,

petitions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Ninth Circuit

in this case.

OPINION BELOW

The opinion of the court of appeals (App., infra,

la-30a) is reported at 789 F.2d 750.

JURISDICTION

The judgment of the court of appeals (App., infra, 31a)

was entered on May 12, 1986. A petition for rehearing was

denied on September 2, 1986 (App., infra, 32a). On Oc-

tober 20, 1986, Justice O’Connor extended the time within

which to file a petition for a writ of certiorari to and in-

cluding December 1, 1986. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

CONSTITUTIONAL PROVISION AND RULE INVOLVED

The Sixth Amendment to the Constitution provides in

pertinent part:

In all criminal prosecutions, the accused shall enjoy

the right * * * to be confronted with the witnesses

against him * * *.

Rule 801(d) of the Federal Rules of Evidence provides in

pertinent part:

A statement is not hearsay if—(1) *** The

declarant testifies at the trial or hearing and is subject

to cross-examination concerning the statement, and

the statement is * * * (C) one of identification of a

person made after perceiving him * * *.

STATEMENT

Following a jury trial in the United States District Court

for the Central District of California, respondent, a

federal prisoner, was convicted of assault with intent to

commit murder, in violation of 18 U.S.C. 113(a). He was

sentenced to 20 years’ imprisonment, to be served con-

secutively to the sentence he was already serving.

1. The evidence at trial showed that on the morning of

April 12, 1982, 61 yeaf-old John Foster, a correctional

counselor at the federal prison in Lompoc, California, was

assaulted and beaten with a metal pipe. In an effort to

prove that it was respondent who beat Foster, the govern-

ment called 14 witnesses, including Foster, three inmate

eyewitnesses, and an inmate to whom respondent made in-

culpatory statements about the crime. The government

also introduced physical evidence, including clothing

belonging to respondent that contained blood spots

matching Foster’s blood type.

a. The government’s evidence revealed that on the day

before the attack, several inmates discussed a plan to attack

Foster. On that day, respondent attended a meeting of a

SS NT

prison religious group, called the “Moorish Science Tem-

ple of America” (the Moors). During the meeting, one of

the inmates stated that “a move would have to be made in

order to gain some kind of respect.” He added that he was

“tired of [Foster] fucking with [him].” Respondent, who

was one of the leaders of the Moors, repeated those obser-

vations and expressed agreement with them. 4 Tr. 120-121,

126-128; 6 Tr. 141.

The next morning, Foster arrived for work at the Lom-

poc prison at about 5:35 a.m. and went to his office at the

prison’s “J” unit. Shortly after 6:00 a.m., he was in-

structed to release the 90 inmates in the J unit for

breakfast. After doing so, Foster went to the unit’s televi-

sion room to check for contraband. While he was inside

the television room, Foster was struck several times on the

face, head, and upper body. 2 Tr. 80-81, 85-90, 133-136.

Inmate Bowers was one of the three inmate eyewitnesses

to the assault who testified at trial. On the morning of the

assault, Bowers was on a landing near the J unit television

room when he saw inmates Melvin Davis and Cecil Curry,

whom he had seen the day before at the Moors’ meeting.

After one of them told Bowers that he “shouldn’t be

coming up here,” Bowers heard a “shuffling-like noise”

coming from the room. Upon opening the door, Bowers

saw Foster lying on the floor, shaking and going into con-

vulsions. Respondent was standing over Foster holding a

metal pipe. When he saw Bowers, respondent asked him

what he was doing there, swung something at him, and ran

out the door. 4 Tr. 120, 136-142.

Inmate Albert Washington also witnessed the assault.

While on his way to the laundry room on the morning of

the assault, Washington heard crying or moaning sounds

coming from the television room. He looked through the

window of the room and observed respondent, who was

wearing a gray sweatshirt, repeatedly strike Foster on the

arm with a pipe. Washington also saw Curry and Davis at

the scene of assault. 1 Tr. 238-249, 269.

Inmate Michael Jeffery also witnessed the incident. Jef-

fery was taking a shower when he heard a “gurgling, loud

strangling noise.” Jeffery left the shower and went to the

door of the television room and looked inside, where he

observed respondent repeatedly strike Foster with a “long

round object” that “could have been a pipe.” After return-

ing to the shower, Jeffery saw respondent enter an adja-

cent mop room. He then heard respondent tell Davis to

throw respondent’s sweatsuit top out the window. Jeffery

watched as Davis appeared to do so. 3 Tr. 16-21, 24-26.

During the assault, Foster set off the body alarm that he

was Carrying with him. Prison officials discovered Foster

in the television room lying in a pool of blood, and they

immediately rushed him to the hospital. 1 Tr. 198-201; 2

Tr. 96.

Following the assault, prison officials found a bloody

metal pipe in the prison yard, a sweatsuit top outside the

mop room window (where Jeffery had seen the garment

thrown), and a pair of khaki trousers in an unassigned J

unit cell. Blood stains on both the sweatsuit and trousers

matched Foster’s blood type. 2 Tr. 136; 3 Tr. 118; 4 Tr.

101-104, 253, 255-256. Washington identified the sweat-

shirt as the one worn by respondent during the assault;

Jeffery identified it as the one he saw Davis throw out the

window at respondent’s direction; and a prison official

recognized it as one worn by respondent on a daily basis

prior to the assault. 1 Tr. 193-195, 246-247; 3 Tr. 28. In

addition, a photograph of respondent wearing what ap-

peared to be the same sweatsuit top was found among his

belongings (5 Tr. 34). The khaki pants were also identified

as similar to the prison-issued pants typically worn by

respondent, and when respondent tried them on at trial,

they fit him (1 Tr. 195-197; 5 Tr. 10-11).

During the investigation of the assault, prison

authorities placed respondent in a segregation unit. While

he was there, respondent became acquainted with another

inmate, Douglas Ridinger, who worked as an orderly. Ap-

proximately a week after the assault, Ridinger asked why

Foster had been assaulted. Respondent replied, using

words similar to those spoken at the Moors’ meeting on

April 11, that “this is something we have to do in order to

get respect, just plain and simple.” 3 Tr. 124-130, 144-145;

4 Tr. 59.

The medical evidence at trial revealed that Foster suf-

fered fractures to his skull, cheekbone, arm, and right

middle finger, as well as various other injuries. He was in-

itially very confused and disoriented and could remember

little more than his name. According to Foster’s

neurosurgeon, at least five hard blows with a blunt instru-

ment were necessary to cause the head injuries alone. The

neurosurgeon performed emergency surgery on the day of

the assault to relieve pressure on Foster’s brain caused by

the fractured skull. Foster initially showed some improve-

ment, but then began to suffer periods of confusion and

disorientation. After additional surgical procedures were

performed, Foster was released from the hospital on May

10, 1982. 2 Tr. 133-138, 142-143, 156-157, 162-165,

172-175.

During his hospital stay, Foster was visited by Dr. Ted

Bader, the prison physician. As Dr. Bader recounted at

trial, when he asked Foster who had assaulted him, Foster

responded, without hesitation, “I think it was Owens,-the

D.C. black” (2 Tr. 207-208). FBI Agent Thomas G.

Mansfield, who was investigating the assault, learned

about Foster’s statement and attempted to interview him.

Foster appeared lethargic and groggy, however, and when

Mansfield asked who had assaulted him, Foster’s only

response was a word that sounded like “coma.” Five days

prior to Foster’s release from the hospital, Mansfield inter-

6 2

viewed him again, This time, according to Agent

Mansfield’s testimony, Foster’s condition had improved

substantially. Foster, who was alert and coherent, de-

scribed how the attack had occurred, said that Owens was

his assailant, and selected Owens’ photograph from a

photospread. 5 Tr. 22-25.

b. Foster testified at length at the trial (2 Tr. 71-131).'

After describing his professional background (2 Tr.

72-79), Foster testified that he knew respondent as an in-

mate of the J unit (2 Tr. 80). He recalled that, on the

morning of April 12, 1982, he arrived at the prison at 5:35.

He first obtained a body alarm and the keys to the J unit.

He then went to the counselor’s office in the unit, where he

made a pot of coffee and recorded the inmate count in a

logbook. Shortly after 6:00 a.m., he was called by a

superior and instructed to begin feeding the prisoners.

Foster opened the doors to each range of cells, and he

entered the J unit television room to inspect it for contra-

band. Shortly after entering the room, he felt an impact on

his head. Although he could not remember the identity of

the person who struck him, he recalled that his assailant

was armed with a piece of pipe. He also recalled that,

. ' At the commencement of the trial, respondent’s attorneys ob-

jected to the introduction of evidence concerning Foster’s out-of-court

identification. They stated that when they interviewed Foster, he said

he could not recall the identity of his assailant and could not

remember why he told Mansfield that it was respondent. They argued

that Foster therefore was not subject to cross-examination concerning

his out-of-court identification. 12/12/83 Tr. 26-33; 1 Tr. 5-6. The

district court overruled the objection and denied respondent’s motion

for a hearing concerning Foster’s present recollection (1 Tr. 3-6). The

court of appeals stated (App., infra, 7a n.4) that the government's of-

fer of proof differed substantially from Foster’s testimony at trial, and

it suggested that Foster’s memory loss was in fact far worse than the

offer of proof had indicated. In fact, however, the offer of proof was

accurate, as respondent conceded below (Owens C.A. Br. 7).

following the assault, he looked down and saw blood on

the floor. Foster testified that his injuries included a frac-

tured skull, cuts and bruises, and a broken arm. Foster

also recalled injuring his right middle finger when he

jammed it into his assailant’s chest. 2 Tr. 81-93, 100.

Foster explained that the next thing he remembered

after being hit was waking up at the hospital. The one

hospital visit he recalled at trial was a visit by Agent

Mansfield. 2 Tr. 90-92, 94-95. Foster testifed that “[a]s te

what I told Mr. Mansfield that day, it is very vivid in my

mind” (id. at 96; see also id. at 91-92). In particular, Foster

remembered telling Mansfield that “after 1 was hit |

looked down and saw the blood on the floor, and jammed

my finger into Owens’ chest, and said, ‘That’s enough of

that,’ and hit my alarm button” (ibid.). He indicated,

moreover, that at the time he spoke to Mansfield, there

was no doubt in his mind that what he said was accurate.

In addition, Foster recalled that Mansfied asked him to

identify his assailant from a group of photographs and

that he selected respondent’s picture. 2 Tr. 96-97.

Foster was subjected to extensive cross-examination,

during which he acknowledged that “[a]t this time he [did

not] remember” seeing his assailant (2 Tr. 100). In

response to defense counsel’s inquiries, he also conceded

that while his statement to Mansfield was “vivid,” he could

not recall making any other statements during his stay at

the hospital, and he did not remember asking (as noted in

a medical report) who his assailant was or whether it was

“Leo” (2 Tr. 102, 105, 109). He admitted that, although

many people, including his wife, had apparently visited

him during his hospital stay, he did not recall any of the

visits except the visit by Mansfield that he had described (2

Tr. 110-111, 114). Foster stated that the assault was “vivid

in [his] mind when [he] had given the information to Mr.

Mansfield,” but he was unable to explain the basis for his

identification (2 Tr. 114). $

During summation, respondent’s attorney emphasized

Foster’s testimony about his loss of memory, as elicited

during cross-examination. She argued that Foster had ad-

mitted that he could not recall seeing his assailant and

could not remember why he had told Mansfield that

respondent had committed the assault. From that she sug-

gested that Foster probably had made the identification as

the result of suggestions by persons who had visited him in

the hospital. 7 Tr. 59-66.

2. On appeal, respondent renewed his challenge to the

admission of Foster’s out-of-court identification. The

Ninth Circuit reversed respondent’s conviction by a di-

vided vote, holding that because of Foster’s memory loss,

the defense was unable to cross-examine him effectively

(App., infra, 1a-23a). Although the court recognized that

respondent’s attorneys were “not restricted in their ques-

tioning of Foster” on the relevant issues (id. at 11a), it

determined (id. at 15a) that Foster’s responses did not give

the jury “the information it needed in order to determine

whether Foster had perceived his attacker, accurately or at

all, or whether at the time he made the identification, his

memory correctly reflected his perceptions.” The court (id.

at 17a-18a) explicitly rejected the approach taken by the

Third Circuit in United States ex rel. Thomas v. Cuyler,

548 F.2d 460, 463 (3d Cir. 1977), which held that the Con-

frontation Clause is not violated if the witness is sworn

and agrees to testify, even if he asserts an actual or feigned

memory loss at trial.

In addition, the court of appeals held (App., in/ra,

8a-lla) that the admission of Foster’s pretrial identifica-

tion violated Fed. R. Evid. 801(d)(1)(C). The court con-

strued Rule 801(d)(1)(C) to require cross-examination not

only about the identification itself, but also about “the

facts and circumstances underlying the identification,”

namely, “the reasons why [the declarant] made the iden-

tification” (App., infra, 9a (emphasis in the original)). The

court held that because of Foster’s memory loss, respond-

ent was prevented from adequately exploring the basis for

the pretrial identification (id. at 11a).

The court concluded that the violation of Rule

801(d)(1)(C) was harmless under the standard applicable

to non-constitutional errors, in light of the testimony of

the inmate eyewitnesses, the evidence of respondent’s in-

culpatory remarks concerning the assault, and the physical

evidence linking respondent to the crime (App., in/ra,

12a). The court ruled, however, that the violation of the

Confrontation Clause was not harmless under the stand-

ard applicable to constitutional errors. Because the court

could not find that the Confrontation Clause violation

was harmless beyond a reasonable doubt, it reversed

respondent’s conviction (id. at 22a-23a).

Judge Boochever dissented. In his view, both the Con-

frontation Clause and Fed. R. Evid. 801(d)(1)(C) require

only that the witness be subject to cross-examination con-

cerning the out-of-court statement itself, not that he be

subject to cross-examination concerning the circumstances

underlying the identification. That requirement was met

because Foster had a complete recollection of his state-

ment to Mansfield, even if he did not remember why he

was able to identify respondent. App., infra, 25a-26a.

Judge Boochever also observed (id. at 26a-27a, 29a) that,

as a result of the cross-examination conducted by respond-

ent’s attorney at trial, the jury had an adequate basis to

assess Foster’s demeanor and determine whether to credit

his out-of-court identification. ?

2 Judge Boochever indicated (App, infra, 24a-2Sa), however, that

he would remand the case to the district court for a determination

under Fed. R. Evid. 602 whether Foster had personal knowledge of

the identity of his assailant.

REASONS FOR GRANTING THE PETITION

This case presents issues of great practical importance.

In virtually every criminal trial, prosecution witnesses ex-

perience some loss of memory concerning disputed facts.

Yet, until the present case,*the courts have repeatedly re-

jected assertions of a Confrontation Clause violation

when a witness recalls some relevant facts but asserts a

memory loss as to others. The Ninth Circuit’s holding that

Foster’s partial memory loss deprived respondent of his

confrontation right raises disturbing questions in a variety

of previously well-settled areas. For example, the in-

troduction of records or memoranda under the past

recollection recorded exception to the hearsay rule (see

Fed. R. Evid. 803(5))—which is applicable when the

witness “has insufficient recollection [of the matter re-

corded] to enable him to testify fully and accurately” — oc-

curs on a daily basis in state and federal courts. Similarly,

witnesses regularly testify about pretrial identifications of

suspects under Fed. R. Evid. 801(d)(1)(C), even though

they are unable to make in-court identifications at trial.

And prior inconsistent statements are routinely admitted,

pursuant to Fed. R. Evid. 801(d)(1)(A), notwithstanding a

witness’s partial memory loss concerning the prior state-

ment. The present case calls into question the constitu-

tionality of those previously routine evidentiary pro-

cedures. ;

1.a. This Court has never found a violation of the Con-

frontation Clause based on the loss of memory by a

witness who testified at trial. As the Court held recently in

Delaware v. Fensterer, No. 85-214 (Nov. 4, 1985), mere

loss of memory by a witness does not deprive the defend-

ant of his right to confront the witness; as long as the

witness is available for cross-examination at trial, the Con-

frontation Clause is satisfied. The Court in Fensterer

noted (slip op. 6) that the Confrontation Clause “includes

eee

no guarantee that every witness called by the prosecution

will refrain from giving testimony that is marred by forget-

fulness, confusion or evasion.”

The Fensterer case involved an expert for the prosecu-

tion who could not remember what scientific method he

had used to reach his conclusion about an evidentiary issue

in the case; the Delaware Supreme Court reversed the

defendant’s conviction on Confrontation Clause grounds

(493 A.2d 959 (1985)), holding that in light of the lapse in

the expert’s recollection, the defendant’s cross-

examination of the expert was “nothing more than an exer-

cise in futility” (id. at 964). In reversing, this Court em-

phasized (slip op. 6-7) that the Confrontation Clause was

satisfied because the defense was able to expose the

memory loss and show the jury why the expert’s testimony

deserved little weight. Although defense counsel in this

case had the same opportunity to impeach Foster with his

loss of memory about the identity of his assailant, the

court of appeals, like the Delaware Supreme Court,

regarded that opportunity as insufficient to satisfy the

Confrontation Clause.

The court of appeals sought to distinguish Fensterer on

the ground that it did not involve a failure of recollection

with regard to an out-of-court statement (App., infra,

12a-13a n.7). While that is so, it is not clear why that

distinction should make a difference for Confrontation

Clause purposes. In Fensterer, the expert testified about

the results of his out-of-court analysis, but he was unable

to recall the circumstances that led him to reach that con-

clusion. In this case, Foster testified about the results of

his prior identification of his assailant, but he was unable

to recall the circumstances that led him to make that iden-

tification. Although the identification evidence and the ex-

pert testimony may stand differently for hearsay purposes,

there is no reason to treat them differently for purposes of

the Confrontation Clause. In each case, the defendant has

the witness on the stand for cross-examination and at a

minimum can exploit the witness’s failure of recollection

to undermine the force of his testimony with the finder of

fact.

In both Fensterer (slip op. 6) and this Court’s prior deci-

sion in California v. Green, 399 U.S. 149, 168-169 (1970),

the Court raised but did not reach the question whether an

out-of-court statement can be admitted, consistent with

the Confrontation Clause, when the declarant asserts a

total or partial failure of recollection with regard to the

circumstances underlying the statement. This case pres-

ents the Court with an opportunity to resolve that question

by determining whether, as we believe, the analysis of

Fensterer applies in the context of witnesses’ out-of-court

statements.

b. The court of appeals’ decision also creates a conflict

among the circuits concerning the constitutional

significance of a witness’s memory loss. The court of ap-

peals took the position that the Confrontation Clause bars

the admission of an out-of-court statement by a testifying

declarant if the declarant experiences a significant memory

> In Green, a minor named Porter had informed the police that

Green supplied him with drugs. At trial, Porter claimed that he could

not recall the identity of his supplier. The Court upheld the admission

of Porter’s preliminary hearing testimony at trial because Porter was

sworn and subject to cross-examination at the prior proceeding.

However, the Court remanded the case to the California Supreme

Court on the question whether there was error in admitting Porter’s

Out-of-court statement to the police, noting that it was premature for

the Court to decide “[w}hether Porter’s apparent lapse of memory so

affected Green’s right to cross-examine as to make a critical difference

in the application of the Confrontation Clause * * *” (399 U.S. at

168). On remand, the California Supreme Court concluded that

Porter’s statement to the police was properly admitted because Porter

testified at trial under oath, was subject to cross-examination, and the

jury was able to observe his demeanor. People v. Green, 3 Cal. 3d 981,

92 Cal. Rptr. 494, 479 P.2d 998, cert. dismissed, 404 U.S. 801 (1971).

7 A sy te

loss with regard to the subject matter of the out-of-court

statement. In so holding, the court (App., infra, 17a) ex-

plicitly refused to adopt the Third Circuit’s analysis in

United States ex rel. Thomas v. Cuyler, supra. The Third

Circuit in the Thomas case held that the admission of the

witness’s out-of-court statement did not violate the Con-

frontation Clause, even though the witness alleged a com-

plete lack of recollection about the facts he had related in

his out-of-court statement. The Confrontation Clause is

not violated, the court held, as long as the witness is sworn

and does not refuse to answer questions, notwithstanding

an actual or feigned memory loss (548 F.2d at 463). The

Third Circuit’s approach was based on Justice Harlan’s

concurring opinion in California v. Green, 399 U.S. at

172-189. In Green, Justice Harlan stated his view (id. at

188) that if a witness is physically present at trial, the fact

that he “cannot 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 con-

sequence.” * Justice Harlan’s approach has also been en-

4 The court of appeals asserted (App., infra, 18a) that Justice

Harlan repudiated his approach in Green a year later in Dutton v.

Evans, 400 U.S. 74, 93-100 (1970). That characterization seriously

misreads Justice Harlan’s position in those two cases. In Evans,

Justice Harlan indicated that he was retreating from his suggestion in

Green that the government has an obligation to produce witnesses

who are reasonably available. His revised view was that the Confron-

4ation Clause simply gives a defendant an opportunity to cross-

examine those witnesses who are actually produced by the govern-

ment, and that the admission of hearsay where the declarant is not

produced should be evaluated under a due process standard of fun-

damental fairness. That view can in no way be read as a repudiation

by Justice Harlan of his position in Green that a witness’s memory loss

has no Sixth Amendment significance.

The court of appeals also asserted that this Court rejected Justice

Harlan’s approach in a footnote in Ohio v. Roberts, 448 U.S. 56, 66

n.9 (1980) (App., infra, 18a). The cited footnote in Roberts, however,

dorsed by the Colorado Supreme Court. See People v.

Pepper, 193 Colo. 505, 568 P.2d 446 (1977) (en banc); see

also Robinson v. State, 102 Wis.2d 343, 353, 306 N.W. 2d

668, 673 (1981) (noting in dictum that it might well en-

dorse Justice Harlan’s approach in Green in an ap-

propriate case).

Other circuits that have addressed the issue, while not

adopting the per se approach taken by the Third. Circuit,

have similarly refused to attach Sixth Amendment

significance to a witness’s total or partial memory loss.

Those decisions are likewise inconsistent with the Ninth

Circuit’s decision in the present case. For example, in

United States v. Payne, 492 F.2d 449, 453-454 (4th Cir.),

cert denied, 419 U.S. 876 (1974), the court of appeals

upheld the admission of a prior statement of the witness,

even though the witness claimed complete loss of memory

about the facts related in the statement. Citing with ap-

proval Justice Harlan’s concurring opinion in Green, the

court of appeals noted that even though the witness’s com-

plete loss of memory frustrated defense inquiry regarding

the truth of the prior statement, the admission of the state-

ment nonetheless did not violate the Confrontation

Clause. The court pointed out that the case of complete

memory loss differs only in degree from a case in which “a

declarant has made a detailed earlier statement and at the

trial, despite efforts to refresh his recollection, remembers

does not constitute a rejection of Justice Harlan’s approach to the role

of a witness’s memory loss in Confrontation Clause analysis. Rather,

the Court was simply noting that it had not adopted Justice Harlan’s

general thesis that the “Confrontation Clause requires only that the

prosecution produce available witnesses” (448 U.S. at 67 n.9). Indeed,

in Fensterer, a post-Roberts case, the Court (slip op. 6) left open

whether a witness’s memory loss could ever amount to a Confronta-

tion Clause violation. And the Ninth Circuit, in another case, has ex-

plicitly stated that Roberts did not decide the memory loss issue

discussed by Justice Harlan in Green (Thomas v. Cardwell, 626 F.2d

1375, 1385 n.33 (1980), cert. denied, 449 U.S. 1089 (1981)).

only some, but not all, of the details.” 492 F.2d at 454. If

the defendant’s constitutional claim were correct, the

court added, logic would require that in such a case, every

portion of the prior statement about which the declarant

had suffered a loss of memory would have to be excluded.

Ibid.

Similary, in United States v. Insana, 423 F.2d 1165,

1168 (2d Cir.), cert. denied, 400 U.S. 841 (1970), the court

permitted the government to introduce a witness’s prior

statement when the witness at trial claimed a nearly com-

plete lack of memory regarding the subject of his prior

statement. The Confrontation Clause was satisfied, the

court concluded, because the witness was at all times

available for cross-examination. The fact that the defend-

ant “believes such examination would be fruitless [does

not] render the witness unavailable for such examination.”

423 F.2d at 1168.

In other cases as well, the courts of appeals have held

that an assertion of partial or complete loss of memory by

a witness does not result in a Confrontation Clause viola-

tion, as long as the witness is available for cross-

examination and the memory lapse does not completely

deprive the jury of its ability to determine the veracity of

the declarant’s out-of-court statement. See United States

v. DiCaro, 772 F.2d 1314, 1325-1328 (7th Cir. 1985), cert.

denied, No. 85-1007 (Mar. 24, 1986); United States v.

Baker, 722 F.2d 343, 347-349 (7th Cir. 1983), cert. denied,

465 U.S. 1037 (1984); United States v. Russell, 712 F.2d

1256, 1258 (8th Cir. 1983); Vogel v. Percy, 691 F.2d 843,

845-848 (7th Cir. 1982); United States v. Distler, 671 F.2d

954, 959 (6th Cir.), cert. denied, 454 U.S. 827 (1981);

United States v. Rogers, 549 F.2d 490, 498-500 (8th Cir.

1976), cert. denied, 431 U.S. 918 (1977); United States v.

Infelice, 506 F.2d 1358, 1363 (7th Cir. 1974), cert. denied,

419 U.S. 1107 (1975); see also People v. Green, 3 Cal.3d

981, 92 Cal. Rptr. 494, 479 P.2d 998 (1971), cert. dis-

missed, 404 U.S. 801 (1971); Van Hatten v. State, 666

P.2d 1047 (Alaska App. 1983); but see State v. Lomax,

227 Kan. 651, 608 P.2d 959 (1980).

We agree with Justice Harlan (California v. Green, 399

U.S. at 188) that the in-court testimony of a witness under

oath and in the presence of the accused satisfies the Con-

frontation Clause, regardless of whether that witness has

suffered a loss of memory.°* Elicting on cross-examination

that the witness cannot remember key facts in dispute does

not undercut the defendant’s right of cross-examination;

to the contrary, it is difficult to imagine cross-examination

that is more productive than where a defense attorney

demonstrates a witness’s failure to recall crucial informa-

tion. By physically producing the witness, the government

has done everything within its power to enable the defense

to confront the witness and attempt to show why he

should not be believed. Because the witness is present in

court, the jury can observe his demeanor and assess his

credibility. Nothing in the history or purpose of the Con-

frontation Clause suggests that it was designed to prohibit

in-court testimony by a witness who cannot recall some of

the facts at issue. See generally Green, 399 U.S. at 179

(Harlan, J., concurring) (Confrontation Clause was

designed “to constitutionalize a barrier against flagrant

abuses, trials by anonymous accusers, and absentee wit-

* Our position assumes, of course, that the scope of cross-

examination has not been impermissibly restricted by the trial cour.

Cf. Delaware v. Van Arsdall, No. 84-1279 (Apr. 7, 1986); Davis v.

Alaska, 415 U.S. 308 (1974). In adition, it assumes that the witness

does not assert his Fifth Amendment privilege or otherwise refuse to

testify. Cf. Mayes v. Sowders, 621 F.2d 850 (6th Cir.), cert. denied,

449 U.S. 922 (1980); United States v. Fiore, 443 F.2d 112 (2d Cir.

1971), cert. denied, 410 U.S. 984 (1983). Finally, it assumes that the

witness is able to understand the proceedings. Obviously, producing a

witness who is physically or mentally impaired to the point that he

cannot engage in a question and answer dialogue would be no dif-

ferent from failing to produce the witness at all.

nesses”); Mattox v. United States, 156 U.S. 237, 242

(1895) (purpose of Confrontation Clause is to prevent use

of depositions or ex parte affidavits in lieu of cross-

examination). .

In any event, this is not a case in which the witness

recalls virtually nothing of relevance regarding his prior

statement or the underlying events. Foster, who testified at

great length on both direct and cross-examination (2 Tr.

71-131), specifically recalled, inter alia: (i) various details

leading up to the assault; (ii) how he was struck on the

head with a metal object; (iii) the precise injuries he suf-

fered from the assault; and (iv) how he jammed his finger

into his assailant’s chest (see 2 Tr. 81-96, 100). Most im-

portantly, he recalled vividly his hospital visit by

Mansfield in which he identified respondent as his

assailant, and he recalled telling Mansfield that he

“jammed [his] finger into Owens’ chest” (2 Tr. 96-97).

In those areas where Foster had in fact suffered a

memory loss, defense counsel brought out the failure of

his recollection in painstaking detail. And the defense was

given wide latitude to impeach Foster with various incon-

sistent statements he had purportedly made to hospital

personnel, as well as the remark he had made to Agent

Mansfield in which he mentioned a name other than re-

spondent’s (2 Tr. 108-109, 113-114). The extensive and

productive cross-examination enabled the defense to argue

in summation that Foster’s own testimony demonstrated

that he had not seen his assailant but had made his pretrial

identification based on what someone else had told him (7

Tr. 59-66). In short, the defense was able to “probe and ex-

pose” Foster’s memory loss and to “call{] to the attention

of the fact finder the reasons for giving scant weight to the

witness’ testmony.” Fensterer, slip op. 6-7. The Confron-

tation Clause requires no more.®

° The court of appeals’ finding of a Confrontation Clause violation

because of a witness’s memory loss is particularly disturbing in the

c. The Ninth Circuit’s decision in this case, if per-

mitted to stand, would have serious adverse implications

for another, closely related, class of out-of-court

statements: memoranda or records offered for admission

under the past recollection recorded exception to the hear-

say rule (Fed. R. Evid. 803(5)). Courts have consistently

found no Confrontation Clause violation in the admission

of statements satisfying that exception, even though the

exception expressly requires that the witness have “insuffi-

cient recollection to enable him to testify fully and ac-

curately * * *.” See, e.g., United States v. Riley, 657 F.2d

1377, 1385 n.13 (8th Cir. 1981), cert. denied, 459 U.S. 1111

(1983); United States v. Marshall, 532 F.2d 1279, 1285 n.4

(9th Cir. 1976); United States v. Smalls, 438 F.2d 711, 714

context of this case. As the evidence at trial demonstrated (2 Tr.

133-170), and as the defense concedes (Owens C.A. Br. 6 n.1), Foster's

memory loss was caused by the assault itself. And the Ninth Circuit, in

finding that the violation of Fed. R. Evid. 801(d)(1)(C) was harmless,

essentially concluded that there was substantial independent

evidence—wholly apart from Foster’s pretrial identification of

respondent —that respondent committed the assault (App., injra,

12a). Yet it is well established that “when confrontation becomes im-

possible due to the actions of the very person who would assert the

right, logic dictates that the right has been waived.” United States v.

Thevis, 665 F.2d 616, 630 (Sth Cir.), cert. denied, 456 U.S. 1008

(1982). Accord, e.g., Reynolds v. United States, 98 U.S. 145, 158

(' 8°); Steele v. Taylor, 684 F.2d 1193, 1201-1203 (6th Cir. 1982),

cert. denied, 460 U.S. 1053 (1983); Black v. Woods, 651 F.2d 528,

531-532 (8th Cir.), cert. denied, 454 U.S. 847 (1981). In this case, put-

ting aside Foster’s pretrial identification, there is still a preponderance

of evidence — or even clear and convincing evidence — linking respond-

ent to the assault (see Steele, 684 F.2d at 1202 (applying

preponderance standard); Thevis, 665 F.2d at 631 (applying clear and

convincing standard)). Given the strong independent evidence

demonstrating that respondent caused Foster’s loss of memory, it

would be “contrary to public policy, common sense, and the underly-

ing purpose of the Confrontation Clause” to allow him to prevail on

his Confrontation Clause claim. United States v. Carlson, $47 F.2d

1346, 1359 (8th Cir. 1976), cert. denied, 431 U.S. 914 (1977).

(2d Cir.), cert. denied, 403 U.S. 933 (1971); United States

v. Kelly, 349 F.2d 720, 770 (2d Cir. 1965), cert. denied,

384 U.S. 947 (1966). If the Ninth Circuit is correct that the

Confrontation Clause requires that a witness recall not

only the making of the out-of-court statement, but also

the facts contained within the statement, that exception to

the hearsay rule could be subject to serious constitutional

challenge. While the court of appeals did not purport to

address statements falling within that or other similar ex-

ceptions to the hearsay rule, its Confrontation Clause

analysis would appear, at minimum, to subject statements

falling into those categories to a case-by-case analysis to

determine the reliability of the statements in each instance

(see App., infra, 18a-20a). Because the court’s Confronta-

tion Clause analysis has grave implications for the ad-

missibility of any out-of-court statement in which the

declarant has little or no present recollection of the facts

asserted in the statement, review is warranted on this

ground as well. .

2. The court of appeals’ decision also raises an impor-

tant question under the Federal Rules of Evidence. In ad-

dition to determining that the introduction of Foster’s

identification of respondent violated the Confrontation

Clause, the court also held (App., infra, 9a-1la) that the

evidence was improperly admitted under Fed. R. Evid.

801(d)(1(C). The court’s ruling is contrary to both the

language and purpose of Rule 801(d)(1(C), and it is incon-

sistent with decisions of other courts of appeals construing

that Rule under analogous circumstances. Moreover, since

the provisions governing prior inconsistent statements

(Rule 801(d)(1)(A)) and prior consistent statements (Rule

801(d)(1)(B)) use the same pertinent language, the effect of

the court’s decision is not limited simply to pretrial

statements of identification.

a. Under Rule 801(d)(1)(C), a prior statement of iden-

tification is categorized as nonhearsay when “(t}he

declarant testifies at the trial or hearing and is subject to

cross examination concerning the statement” (emphasis

added). That language is not even arguably ambiguous;

there is nO mention of any requirement that the witness be

subject to cross-examination concerning the “subject mat-

ter” of the statement. A comparison with the language in

Fed. R. Evid. 804(a) is particularly instructive. Rule

804(a), which adopts numerous exceptions to the hearsay

rule based upon the declarant’s “unavailability as a

witness,” defines “unavailability” to include situations in

which the witness “testifies to a lack of memory of the sub-

ject matter of his statement” or “persists in refusing to

testify concerning the subject of his statement.” Fed. R.

Evid. 804(a)(2) and (3) (emphasis added). As one commen-

tator has observed, “[h]ad there been an intention in [Fed.

R. Evid.) 801(d)(1) to require the witness to be cross-

examinable concerning the matter asserted in his state-

ment, Rule 804(a) demonstrates that the framers had the

language to do it.” 4 D. Louisell & C. Mueller, Federa/

Evidence § 421, at 213-214 n.64 (1980); see also id. § 419,

at 179-180. Under the plain language of Rule 801(d)(1)(C),

a witness's inability to recall the events to which a pretrial

identification relates should not preclude the admission of

evidence of that identification.’

” When a witness testifies to a memory loss concerning the prior

statement itself, some courts have held that, if the memory loss is

selective or apparently feigned, the prior statement may nonetheless

be admitted under Rule 801(d)(1). See, e.g., DiCaro, 772 F.2d at

1323-1325; United States v. Baker, 722 F.2d at 347-348 & n.8. Similar-

ly, in enacting Rule 801(d)(1)(C), Congress contemplated that, when a

witness makes a pretrial identification of the defendant and then

because of fear, refuses to acknowledge that identification in court,

his prior statement should nonetheless be admissible through third

parties. See United States v. Elemy, 656 F.2d 507, 508 (Mh Cir. 1981)

The court of appeals’ construction of Rule 801(d)(1)(C)

is at odds not only with the plain language of the Rule but

with its purpose as well. In 1975, shortly after the adop-

tion of the Federal Rules of Evidence, Congress amended

Rule 801(d)(1) by adding a new Subsection (C) to permit

the introduction of prior out-of-court identifications. See

4 Louisell & Mueller, supra, § 410, at 46-47; H.R. Rep.

94-355, 94th Cong., Ist Sess. 2-3 (1975). In discussing the

purpose of the proposed amendment, the House Report

observed (id. at 3) that out-of-court identifications were

“particularly important in jurisdictions where there may

be a long delay between arrest or indictment and trial.” It

noted (ibid.) that “{aJs time goes by, a witness’ memory

will fade and his identification will become less reliable.”

The proposed Rule therefore was designed to “{make] sure

that delays in the criminal justice system do not lead to

cases falling through because the witness can no longer

recall the identity of the person he saw commit the crime.”

Ibid.. accord S. Rep. 94-199, 94th Cong. Ist Sess. 2

(1975); 121 Cong. Rec. 31867 (1975); United States v.

Lewis, 565 F.2d 1248, 1251 (2d Cir. 1977), cert. denied,

435 U.S. 973 (1978); United States v. Marchand, 564 F.2d

983, 996 (2d Cir. 1977), cert. denied, 434 U.S.1015 (1978);

4 Louisell & Mueller, supra, § 421, at 205. The court of

appeals’ decision totally undermines this legislative intent.

b. The court of appeals’ reasoning is at odds with the

construction of Rule 801(d)(1)(C) adopted by other cir-

cuits that have addressed the issue. In United States v.

Lewis, supra, the Second Circuit held that, even though a

witness could not make an in-court identification, her

prior cut-of-court identification was nonetheless admissi-

ble under the Rule. The court noted (565 F.2d at 1252) that

the witness was able to recall her prior identification and

(citing 121 Cong. Rec. 31866-31867 (1975)). The present case does not

raise either of those issues, however, since Foster had a full recollec-

tion of his statement to Mansfield.

to testify about the circumstances of that identification.

The court then observed (ibid.) that “{i}t seems clear both

from the text and the legislative history of the amended

Rule that testimony concerning extra-judicial identifica-

tions is admissible regardless of whether there has been an

accurate in-court identification.” Accord United States v.

Ingram, 600 F.2d 260, 261 & n.* (10th Cir. 1979)

(although witnesses did not identify defendant at trial,

prior identification held admissible under Rule

801(d)(1)(C) because the witnesses “were available at trial

and were subjected to thorough cross-examination con-

cerning their out-of-court identification statements”); cf.

United States v. O'Malley, 796 F.2d 891, 899 (7th Cir.

1986) (although government witness at trial recanted prior

identification of defendant and denied that he participated

in crime, prior out-of-court identification held admissible

under Rule 801(d)(1)(C), because witness “was subject to

cross-examination concerning his earlier statement made

before trial”).

Under the interpretation of the Rule 801(d)(1)(C) con-

sistently adopted by courts prior to this case, it is clear that

the district court was correct in admitting Foster’s pretrial

identification of respondent. Although Foster suffered a

partial memory loss with regard to the assault itself, his

recollection of the pretrial identification was vivid. Since

Foster was subject to unimpeded cross-examination “con-

cerning [his] statement,” the requirements of Rule

801(d)(1)(C) were satisfied.

c. The court of appeals’ analysis has implications that

extend well beyond the context of prior identifications.

The requirement that the declarant be subject to cross-

examination “concerning the statement” also applies to

prior inconsistent statements (Rule 801(d)(1)(A)) and prior

consistent statements (Rule 801(d)(1)(B)). Under the Ninth

Circuit’s rationale, the admission of those kinds of state-

ments would likewise be improper unless the witness is

also subject to cross-examination on the “subject matter of

the statement.” Again, there is nothing in the language or

purposes of Subsections (A) and (B) of Rule 801(d)(1) to

support that interpretation. But unless the Ninth Circuit's

analysis of the language of Rule 801(d)(1) is corrected, the

court’s decision in this case will cause confusion not only

with respect to Rule 801(d)(1(C), but also with respect to

statements offered under the other two subdivisions of

Rule 801(d)(1). For that reason as well, the Court should

grant certiorari in this case to review the court of appeals’

analysis of the federal evidentiary rule permitting the ad-

mission of prior statements by a witness.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

Wi LIAM C. BRYSON

Deputy Solicitor General

ROBERT H. KLONOFF

Assistant to the Solicitor General

JOHN F. DE PUE

Attorney

DECEMBER 1986

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 84-5015

D.C. No. 83-630-AWT

UniTeD STATES OF AMERICA, PLAINTIFF-APPELLEE,

Vv.

James JosePH OWENS, DEFENDANT-APPELLANT.

Appeal from the United States District Court

for the Central District of California

A. Wallace Tashima,

United States District Judge, Presiding

Argued and Submitted: November 9, 1984

Pasadena, California

[Filed May 12, 1986]

OPINION

Before: NELSON, BOOCHEVER, and REINHARDT,

Circuit Judges.

REINHARDT, Circuit Judge:

1. BACKGROUND

James Joseph Owens appeals his conviction under 18

U.S.C. § 113(a) for assault with intent to commit murder.

On April 12, 1982, Correctional Officer John Foster

was brutally assaulted while on duty at the federal prison

at Lompoc, California. The evidence at trial established

(la)

that Foster’s attacker beat him repeatedly with a metal

pipe. Foster sustained numerous injuries to his face, arms

and hands as well as to his head. His injuries resulted in a

profound loss of memory with respect to several events,

including the attack itself.

On May 5, 1982, shortly before Foster left the hospital,

he was questioned by FBI Agent Thomas G. Mansfield.

Mansfield asked Foster who had assaulted him. Foster

replied that it had been Owens, who was —and continues

to be—a Lompoc inmate. Mansfield then displayed

several photographs, including one of Owens, and Foster

identified Owens’ picture.

At trial, Foster testified that he had little memory of the

attack. He testified that he could only remember feeling an

impact on his head and seeing blood on the floor, and that

he had no memory of seeing his assailant. While the record

indicates that Foster was visited in the hospital by many

people, including his wife who visited daily, his only clear

memory of any visit concerned the May Sth visit by

Mansfield. Foster recounted Mansfield’s question as to

who had attacked him and Mansfield’s request that he

make the photospread identification, as well as his

responses to Mansfield.

On cross-examination, Foster reaffirmed his inability to

recount the details of the attack. When asked if he

remembered making any statements during his hospital-

ization, Foster testified that the only statements he

remembered making were the statements of identification

made to Mansfield. Defense counsel sought to refresh

Foster’s recollection with certain hospital records in-

dicating that while he was hospitalized Foster had alter-

nately disclaimed knowledge of his attacker and attributed

the assault to someone other than Owens. However,

Foster was still unable to remember making any

statements other than the ones to Mansfield. Similarly,

Foster was unable to remember any visitors other than

Mansfield, nor could he remember whether any of these

visitors had suggested that Owens had been his assailant.

Finally, Foster reaffirmed that he could “vivid[ly]” recall

his statement to Mansfield and that at the time he made

the statement, he knew why he had identified Owens.

However, he was unable to remember any fact or reason

that had caused him to state that Owens was the assailant.

On appeal, appellant’s principal challenge is to the

district court’s admission of Foster’s out-of-court iden-

tifications of Owens, which he contends was erroneous on

four separate grounds.' First, Owens contends that since

Foster had no recollection of his attacker, he lacked the

personal knowledge required under Fed. R. Evid. 602 to

testify to the identification. Second, Owens contends that

Foster’s initial statement implicating Owens was not an

identification of someone “made after perceiving him”

within the meaning of Fed. R. Evid. 801(d)(1)(C), and was

therefore improperly admitted. Third, appellant argues

that Foster’s memory loss was such that he was not subject

to cross-examination and therefore his testimony was in-

admissible under Rule 801(d)(1)(C). Fourth, and related to

his third contention, Owens argues that Foster’s near-

complete memory loss resulted in a deprivation of Owens’

right to effective cross-examination in violation of the

Sixth Amendment. Appellant would prevail under his

challenge based on the Federal Rules of Evidence—the

first three claims —if Foster’s testimony were held to be in-

admissible under either Rule 602 or Rule 801(d)(1)(C).

' Appellant also challenges the district court’s denial of his pretrial

motion to substitute counsel. Because we reverse appellant’s convic-

tion on other grounds, we do not reach that issue.

ll. THE CLAIMS UNDER THE FEDERAL

RULES OF EVIDENCE

A. Standard of Review

The district court’s construction of the Federal Rules of

Evidence is a question of law subject to de novo review.

United States v. McClintock, 748 F.2d 1278, 1287 (9th

Cir. 1984), cert. denied, 106 S. Ct. 75 (1985). Questions of

the admissibility of evidence which involve factual deter-

minations, rather than questions of law, are reviewed for

an abuse of discretion. /d. at 1291. When a mixed question

of law and fact is presented, the standard of review turns

on whether factual matters or legal matters predominate.

If an “essentially factual” inquiry is present, or if the exer-

cise of the district court’s discretion is determinative, then

we give deference to the decision of the district court;

otherwise, we conduct a de novo review. See United States

v. McConney, 728 F.2d 1195, 1202-04 (9th Cir.) (en banc),

cert. denied, 105 S. Ct. 101 (1984).

B. Rule 602: “Personal Knowledge”

In relevant part, Fed. R. Evid. 602 provides that “{a]

witness may not testify to a matter unless evidence is in-

troduced sufficient to support a finding that he has per-

sonal knowledge of the matter.” Appellant contends that

because Foster was incapable of remembering whether or

not he saw his attacker he lacked the requisite personal

knowledge to testify to the out-of-court identifications of

Owens.

Before an out-of-court identification can satisfy the

provisions of Rule 602, the personal knowledge require-

ment must be applied twice. First, the witness, who

testifies in the courtroom that a statement of identification

was made out of court, must have personal knowledge as

to the making of the out-of-court statement; he need not,

however, have personal knowledge as to the events that

were the subject of his statement. See Advisory Committee

Note to Rule 602; 3 D. Louisell & C. Mueller, Federal

Evidence § 260 at 40 (1979); 3 J. Weinstein & M. Berger,

Evidence 4 602(01] (1985); S. Saltzburg & K. Redden,

Federal Rules of Evidence Manual 305 (3d ed. 1982). Sec-

ond, the declarant who made the out-of-court statement

must have had personal knowledge of the events that were

the subject of his statement. 4 D. Louisell & C. Mueller,

Federal Evidence § 415 at 95-96 (1980); McCormick on

Evidence §§ 10, 18, 300 (3d ed. 1984); Advisory Commit-

tee Note to Rule 803; 2 J.H. Wigmore, Evidence § 670

(Chadbourn rev. ed. 1979); United States v. Lang, 589

F.2d 92, 98 (2d Cir. 1978). In this case, unlike the normal

situation, Foster is both the in-court witness and the out-

of-court declarant.

Clearly, when Foster testified in court he had personal

knowledge of the making of his statement of identification

to Mansfield on May 5. Thus, there is no problem with the

first application of Rule 602. There is, however some dif-

ficulty with the second application. It is not at all clear

that Foster ever had personal knowledge of the events that

were the subject of his statements to Mansfield, that is, it

is questionable whether Foster had personal knowledge of

the identity of his assailant.?

A person has “personal knowledge” of “a fact which can

be perceived by the senses” only if he “had an opportunity

to observe, and [has] actually observed the fact.” Ad-

visory Committee Note to Rule 602. Accord 2 Wigmore,

supra, § 650; McCormick, supra, § 10. Personal

? We note that if Foster did not have personal knowledge of the

identity of his assailant, Mansfield’s testimony regarding the iden-

tifications also is inadmissible because if we apply Rule 602 to

Mansfield’s evidence, the first application is satisfied, but the second

is not, due to Foster’s lack of knowledge.

knowledge of a fact cannot be based on the statement of

another. 2 Wigmore, supra, § 657; McCormick, supra,

§ LO at 25.’

Foster testified that he was walking down an aisle “when

I felt an impact on my head . . . | looked down and saw

blood on the floor and I— Now, I don’t remember seeing

at this time—I don’t remember seeing the individual.”

Foster then said that “[t}he next thing I remember after

receiving the blow to the head is many days later in the

hospital.” Finally, Foster stated that he could not recall

“the person or persons” that struck him on the head. None

of this testimony suggests that Foster saw his assailant. In-

deed, it tends to suggest that he did not see his attacker

and thus had no personal knowledge of the identity of his

assailant. Moreover, Foster may have named Owens as a

result of statements made to him during his hospital stay

by one or more of his frequent visitors. Certainly the sub-

ject of the assault was one likely to arise when Foster and

his friends or colleagues talked, and reports regarding the

progress of the investigation may well have been conveyed

to him. Unfortunately, as we have noted above, at the

time of trial Foster had no recollection of any visits by per-

sons other than Mansfield or the conversations that oc-

curred during those visits.

The government argues in response that all of Foster’s

injuries were to the front of his body and therefore he

must have seen his attacker. We agree that the location of

the injuries provides support for the theory that Foster

saw his attacker. On the other hand, it is possible that

Foster was looking down or away and was taken by sur-

prise when he was hit on the head; it is also possible that

his assailant wore a mask or other disguise. Thus, the loca-

tion of the injuries is not necessarily dispositive.

’ There are certain exceptions to this rule, but none of them is rele-

vant here. See 2 Wigmore, supra, §§ 664-670.

The question whether Foster had personal knowledge of

the identity of his attacker is a mixed quéstion of law and

fact in which factual inquiries predominate, and thus,

deference to the district court’s ruling would normally be

appropriate. Here, however, the district court did not rule

on the issue after considering the evidence actually in-

troduced.‘ Because the district court made its ruling

without having the benefit of testimony, because the ques-

tion is such a close one and turns heavily on a factual in-

quiry, and because of our disposition of other issues in this

case, see infra p. [11a], we do not believe it necessary or

advisable to determine whether Foster had personal

knowledge of the identity of his attacker.

* Before the trial began, the district court ruled, based on an offer

of proof by the government, that Foster met the personal knowledge

requirement of Rule 602. Counsel for appellant were allowed at that

time to enter a continuing objection to Foster’s testimony. The

testimony at trial did not correspond to the offer of proof, but the

district court did not reconsider its ruling, despite the continuing ob-

jection. Because the testimony at trial was so different from the offer

of proof, we simply cannot say that the district court in fact ruled that

“evidence [was] introduced sufficient to support a finding that [the

witness had] personal knowledge of the matter.” Rule 602.

Our dissenting colleague argues that in order to avoid deciding the

constitutional question we should remand the case to the district court

so that it can determine whether or not Foster had the requisite per-

sonal knowledge. While we have serious questions regarding whether

or when the generally salutory jurisprudential principle invoked by

Judge Boochever should be applied where the result would be to re-

mand a criminal case for further proceedings, we need not address

that issue here. As we hold infra, p. [12a], the admission of Foster's

testimony was in any event harmless error under the non-

constitutional standard that is applicable to a violation of the Federal

Rules of Evidence. Thus, even if the district court were to decide that

Foster did not have the necessary personal knowledge, and thus that

Rule 602 was violated, we would still have to reach the constitutional

question.

C. Rule 801(d)(1HC)

1. “Made after perceiving him.”

During trial, Foster testified that prior to the

photospread, Mansfield asked him whether he knew who

his assailant was and that he responded that it was Owens.

Appellant argues that the part of Foster’s testimony

relating his response constituted impermissible hearsay.

Rule 801(d)(1)(C) provides that

[a] statement is not hearsay if the declarant testifies at

the trial or hearing and is subject to cross-

examination concerning the statement, and the state-

ment is . . . one of identification of a person made

after perceiving him.

Appellant contends that Foster’s initial statement to

Mansfield was not an “identification of a person made

after perceiving him,” on the ground that the perception

the rule refers to is a perception occurring after the crime

has taken place. This question as to the meaning of Rule

801(d)1)(C) is, as noted in part II.A, supra, reviewed de

novo.

Foster’s statement to Mansfield clearly complied with

the literal wording of Rule 801(d}(1)(C): he had perceived

appellant many times prior to the identification he gave to

Mansfield. Furthermore, the purpose of 801(d)(1)(C) is to

allow the introduction of identifications made when the

“the witness’ observations are still fresh in his mind. . .

before his recollection has been dimmed by the passage of

time . . . for there has been] the opportunity . . . to in-

fluence the witness to change his mind.” S. Rep. No. 199,

94th Cong., Ist Sess. 2 (1975). See also H.R. Rep. No.

355, 94th Cong., Ist Sess. 3 (1975), reprinted in 1975

U.S. Code Cong. & Ad. News 1092, 1094 (same). A re-

quirement that Foster first view appellant before being

asked whether he knew who his assailant was would not

further this purpose; rather, it would seem to hinder it by

making Foster’s subsequent identification a product of

governmental suggestion. The commentators have re-

jected any requirement that the identifying witness

perceive the person again after the crime, and we do also.

See 4 Louisell & Mueller, supra, § 421 at 207-08; 4 Wein-

stein & Berger, supra, ¢ 801(d)(1)(C){01] at 801-175.°

2. “Subject to cross-examination”

. Appellant next argues that Foster’s statements identify-

ing him as the assailant constitute impermissible hearsay

because Foster was not, in view of his loss of memory at

the time of trial, “subject to cross-examination” within the

meaning of Rule 801(d)(1)(C). This mixed question of law

and fact is not predominantly factual, so we review it de

novo. We assume, arguendo, that Foster was subject to

cross-examination as to his acts of (a) making the state-

ment in which he named appellant as his assailant and (b)

selecting Owens’ picture from the photospread. The ques-

tion before us, however, is whether Rule 801(d)(1)C) con-

templates cross-examination of the declarant on the facts

and circumstances underlying the identification and, if so,

whether Foster’s loss of memory prevented compliance

with that requirement.

An examination of Rule 801(d)(1)(C) and its rationale

compels the conclusion that an extra-judicial identifica-

tion may not be admitted unless the declarant is subject to

cross-examination on the reasons why he made the iden-

tification. Hearsay evidence is excluded because it is

thought to be generally substantially less reliable than live

* Appellant’s contention is based on a rather cryptic statement in

M.H. Graham, Handbvok of Federal Evidence § 801.13 n.96 (1981 &

Supp. 1985). It is not clear that the footnote asserts what appellant

claims it does, but even if we assume that appellant's reading of the

footnote is correct, the assertion is not supported by the authority the

footnote cites: United States v. Marchand, 564 F.2d 983 (2d Cir.

1977), cert. denied, 434 U.S. 1015 (1978). Rather, Marchand appears

to support the view we adopt.

10a

testimony. 4 Lousisell & Mueller, supra, § 413 at 69; 4

Weinstein & Berger, supra, ¢ 800(01] at 800-11. Live

testimony is considered reliable because it is given under

oath, the jurors can observe the witness’ demeanor, and

the witness is subject to cross-examination. 4 Louisell &

Mueller, supra, § 413 at 71-72; 4 Weinstein & Berger,

supra, 4 800{01] at 800-10 to 800-11; McCormick, supra,

§ 245. Of these safeguards, cross-examination is thought

to be the most important. McCormick, supra, § 245 at

728; 4 Louisell & Mueller, supra, § 413 at 72.

It is the power of cross-examination that provides the

principal rationale for Rule 801(d)(1). The reliability con-

cerns of the rule against hearsay have been satisfied when

“the witness is . . . subject to cross-examination . . . There

is ample opportunity to test him as to the basis for his

former statement.” United States v. Fiore, 443 F.2d 112,

115 (2d Cir.), cert. denied, 410 U.S. 984 (1972) (quoting 3

J.H. Wigmore, Evidence § 1018 (3d ed. 1940)) (emphasis

added); Accord McCormick, supra, § 251 at 745; 4 Wein-

stein & Berger, supra, { 801(d)(1)[01] at 801-97 & n.4.

The cross-examination requirement of Rule

801(d)(1)(C) is intended to permit the opposing party to

explore the trustworthiness of the extra-judicial statement

of identification. Although cross-examination on the

process of identification itself is consistent with this objec-

tive, it does not, without more, satisfy it. In order to ex-

plore adequately the trustworthiness of the prior iden-

tification, and thereby satisfy the purpose of the Rule, the

opposing party must be permitted to cross-examine the

declarant on the facts and circumstances underlying the

identification. Accordingly, the scope of cross-

examination contemplated by Rule 801(d)(1)(C) extends

beyond the mere incident of identification and includes the

basis on which the declarant made the out-of-court iden-

tification.

Having determined the proper scope of cross-

examination under Rule 801(d)(1)(C), we must next deter-

mine whether Foster was “subject to cross-examination,”

within the meaning of the Rule, on the basis for his iden-

tification of Owens. Appellant’s counsel were not

restricted in their questioning of Foster on this issue, but

Foster’s unvarying answer was that he did not remember.

The question then is whether an inability to answer due to

a loss of memory means that the witness is not “subject to

cross-examination.” We conclude that for the reasons dis-

cussed in part III, infra, Foster’s inability to answer ques-

tions On cross-examination prevented appellant from ade-

quately exploring the basis for Foster’s out-of-court iden-

tifications and that the jury did not have sufficient

grounds for evaluating the correctness of those identifica-

tions. We therefore hold that Foster was not “subject to

cross-examination” within the meaning of Rule

801(d)(1)(C) and that Foster’s testimony as to his out-of-

court identifications constituted inadmissible hearsay.*®

3. Harmless error

In order to decide whether the erroneous admission of

Foster’s testimony requires the reversal of appellant’s con-

viction we must determine “whether the pr: ,udice resulting

from the error was more probably than not harmless.”

United States v. Barrett, 703 F.2d 1076, 1081-82 (9th Cir.

* We note that a similar issue exists with respect to the testimony of

Mansfield. Under Rule 801(d)(1)(C), one to whom a witness makes an

identification may testify to the fact of the identification as long as the

person who actually made the identification is subject to cross-

examination with respect to that identification. See United States v.

Elemy, 656 F.2d 507, 508 (9th Cir. 1981). Since we conclude that, as a

result of his memory loss, Foster was not subject to cross-

examination, it would appear that Mansfield’s statement should have

been excluded also. However, we need not decide that issue here.

12a

1983); United States v. Castillo, 615 F.2d 878, 883-84 (Mh

Cir. 1980); United States v. Valle-Valdez, 554 F.2d 911,

916 (9th Cir. 1977); Fed. R. Evid. 103(a).

In addition to Foster’s testimony, the jury heard the

testimony of four inmates who had either witnessed the at-

tack, or to whom Owens had made inculpatory remarks

regarding the assault. Two items of clothing identified as

belonging to Owens, but with blood stains that cor-

responded to Foster’s blood type, were found outside a

prison window. We recognize that there are reasons why

the jury might not have found the testimony of the in-

mates credible, see infra part I11. B, but the weight of the

evidence is such that we conclude that it is more probable

than not that the prejudice resulting from the erroneous

admission of Foster’s testimony was harmless. Thus, we

must now turn to appellant’s claim under the Confronta-

tion Clause.

ill. THE CONFRONTATION CLAUSE

A. Jury’s Ability to Evaluate Foster’s Testimony

The Sixth Amendment to the United States Constitution

provides that “{i)n all criminal prosecutions, the accused

shall enjoy the right ... to be confronted with the

witnesses against him.” Appellant contends that because

of Foster’s complete inability to recall the facts and cir-

cumstances underlying his out-of-court identification’,

appellant was prevented from engaging in effective cross-

examination, and thus his rights under the Confrontation

Clause were violated. The question raised by appellant was

identified, but explicitly left open, by the Supreme Court

in California v. Green, 399 U.S. 149, 168-70 (1970), and

Delaware v. Fensterer, 106 S. Ct. 292, 295 (1985) (per

curiam).’ Because appellant's claim involves a mixed ques-

’ In Fensterer, the Supreme Court summarily held that the Con-

frontation Clause was not violated by the admission of the in-court

testimony of an expert witness who could not remember the basis tor

Se ee

13a

tion of law and fact, and is not predominantly factual, and

because it “requires consideration of the abstract legal

principles that inform constitutional jurisprudence,” we

review it de novo. McConney, 728 F.2d at 1203.

The Supreme Court has stated that “the mission of the

Confrontation Clause is to advance a practical concern for

the accuracy of the truth-determining process in criminal

trials by assuring that ‘the trier of fact has a satisfactory

basis for evaluating the truth of the [out-of-court] state-

ment.’ ” Dutton v. Evans, 400 U.S. 74, 89 (1970) (plurality

opinion) (quoting Green, 399 U.S. at 161). This mission is

accomplished in three ways: first, by insuring that the

declarant testifies under oath; second, by forcing the

declarant to submit to cross-examination, “the greatest

legal engine ever invented for the discovery of truth;” and

third, by permitting the jury to observe the declarant’s

one of the conclusions he testified to while in court. The case before

us, however, involves the admission of an out-of-court statement. The

Court explicitly stated in Fensterer that it was expressing no opinion as

to the admissibility of out-of-court statements by witnesses who, as of

the time of trial, had lost their memory. 106 S. Ct. at 295-96.

Moreover, there is a distinct possibility that Foster's memory regard-

ing the attack was impaired even prior to the time of his identification

of Owens; obviously, the expert witness’ memory loss in Fensterer did

not occur before the time he reached his conclusions.

The dissent appears to take the position that because Foster testified

and defense counsel were able to ask him questions, this case does not

present the question left open in Green and Fensterer. Such a position

is based on a misunderstanding of the Supreme Court's language in

these cases. In Green, the forgetful witness had in fact testified and

been cross-examined, but the Court noted that it still might be possible

that the witness’ “apparent lapse of memory so affected (the defend-

ant’s} right to cross-examine as to” constitute a violation of the Con-

fromtation Clause. 399 U.S. at 168. The case before us involves the in-

troduction of a prio: out-of-court statement that was not subjected

when it was made to cross-examination or the other safeguards of

testimony at trial, and accordingly the question left open by Green

and Fensterer is presented here. See Fensterer, 106 S. Ct. at 295.

l4a

demeanor. Green, 399 U.S. at 158. Clearly, Foster

testified under oath; clearly the jury was able to observe

his demeanor. The question, therefore, is whether in view

of Foster’s memory loss, it was possible for Owens to

The Supreme Court has repeatedly emphasized the im-

portance of cross-examination in furthering the goals of

the Confrontation Clause. See, e.g., Ohio v. Roberts, 448

U.S. 56, 63 & n.6 (1980) (quoting Douglas v. Alabama,

380 U.S. 415, 418 (1965)). Statements about which the

declarant has not been cross-examined are generally

thought to be subject to three dangers. First, mispercep-

tion: the declarant may not have accurately perceived what

he describes, or he may not have perceived it at all. Sec-

ond, failure of memory: at the time the declarant makes

his statement his memory may not correspond completely

and accurately with his earlier perceptions. Third, faulty

narration: the declarant, in his statement, may fail, either

deliberately or inadvertertly, to convey what he

remembers accurately. McCormick, supra, § 245; 4

Louisell & Mueller, supra, § 413; 4 Weinstein & Berger,

supra, 4 800{01}; Advisory Committee Note to Fed. R.

Evid. Article VIII: “Introductory Note—The Hearsay

Problem.”* Normally, cross-examination will eliminate or

significantly reduce these dangers. A careful inquiry by

opposing counsel will help to expose any misperception or

failure of memory. It may serve to impeach the declarant

or it may refresh his recollection and cause him to alter his

testimony to make it more accurate. Similarly, close ques-

tioning will usually force the declarant to explain clearly

what he meant, and will make it harder for a lying

declarant to maintain a consistent story, thus reducing the

* Some commentators find four risks by subdividing faulty narra-

tion into two parts: ambiguity (imadvertent faulty narration) and in-

sincerity (deliberate faulty narration). See, e.g.. 4 Louisell & Mueller,

supra, § 413.

ee a

danger of failure of narration. 4 Louisell & Mueller,

supra, § 413; 4 Weinstein & Berger, supra, { 800{[01] at

800-11; Advisory Committee Note to Fed. R. Evid. Article

VIII: “Introductory Note—The Hearsay Probiem.”

In this case, however, the type and extent of cross-

examination to which Foster could be subjected could not

serve to expose or significantly affect two of the three

dangers surrounding an out-of-court identification, name-

ly misperception and failure of memory. The only answers

Foster was capable of giving could not provide the jury

with the information it needed in order to determine

whether Foster had perceived his attacker, accurately or at

all, or whether at the time he made the identification, his

memory correctly reflected his perceptions.

At the time of trial Foster did not remember who at-

tacked him or whether he had actually seen his attacker.

Foster recalled that when he met with Mansfield he had a

reason for identifying appellant, but stated that he could

no longer remember what that reason was. Indeed, Foster

apparently remembered almost nothing about the period

of time commencing with the assault on him and ending

with the out-of-court statements he made to Mansfield.°

* Our dissenting colleague argues that there is a dispute as to the

nature and extent of Foster's memory loss because Foster remembered

This argument misses the point, however. We are not concerned with

what Foster remembers about his stay in the hospital. Rather, what is

relevamt for purposes of the Confrontation Clause is Foster’s memory

of the events surrownding the assault. There is no dispute that Foster’s

loss of memory as to these events is actual and complete.

Futhermore, the dissent attempts to support its argument with a

hypothetical example involving out-of-court exculpatory statements

made by Foster as a defense witness. The fact that a statement by a

prosecution witness is inadmissible does not necessarily lead to the

conclusion that sumelar statements by a defense witness are inadmissi-

ble, see, Chambers v. Mississippi, 410 U.S. 284 (1973); accordingly,

the dissents hypothetical example is not particularly helpful in resolv-

ing the case before us.

16a

No one, including Foster, knows whether (1) Foster ac-

tually perceived his assailant, (2) if so, whether his percep-

tion of his attacker was accurate, and (3) whether at the

time of his out-of-court identifications he had any

memory of having observed that assailant. Not even the

most skilled cross-examiner could elicit information that

would help reduce the dangers of misperception or failure

of memory. Clearly, two of the three dangers surrounding

Foster’s out-of-court identifications— misperception and

failure of memory —could not be mitigated in any way by

the only cross-examination of Foster that was available to

Owens. Thus, Foster was not, and could not be, subjected

to effective cross-examination concerning his out-of-court

identifications. 4 Louisell & Mueller, supra, § 422 at 230,

248; 4 Weinstein & Berger, supra, 4 801(d)(1)(C)[01] at

801-178; Falknor, The Hearsay Rule and Its Exceptions, 2

U.C.L.A. L. Rev. 43, 53 (1954). Under the circumstances,

cross-examination could not provide the jury with the req-

uisite basis “for evaluating the truth of the [out-of-court]

statement[s].” See Green, 399 U.S. at 161.'°

'© This case is readily distinguishable from the cases in which the

courts have held that because the witness’ claimed memory loss was so

incredible as to not be believable a witness who had a claimed partial

memory loss was “subject to cross-examination” within the meaning

of Rule 801(d)(1) and the Confrontation Clause. See, e.g., United

States v. Williams, 737 F.2d 594 (7th Cir. 1984), cert. denied, 105 S.

Ct. 1354 (1985); United States v. Baker, 722 F.2d 343 (7th Cir. 1983),

cert. denied, 465 U.S. 1037 (1984); United States v. Russell, 712 F.2d

1256 (8th Cir. 1983); United States v. Thompson, 708 F.2d 1294 (8th

Cir. 1983); United States v. Murphy, 696 F.2d 282 (4th Cir. 1982),

cert. denied, 461 U.S. 945 (1983); Vogel v. Percy, 691 F.2d 843 (7th

Cir. 1982); United States v. Distler, 671 F.2d 954 (6th Cir.), cert.

denied, 454 U.S. 827 (1981); United States v. Rogers, 549 F 2d 490

(8th Cir. 1976), cert. denied, 431 U.S. 918 (1977); United States v.

Shoup, 548 F.2d 636 (6th Cir. 1977). See also People v. Green, 3 Cal.

3d 981, 92 Cal. Rptr. 494, 479 P.2d 998 (1971) (applying Cal. Evid.

Code § 1235, which is very similar to Fed. R. Evid. 801(d)(1)(A)). The

rationale in these cases was that the witness’ untruths or evasions

17a

The government contends, and our dissenting colleague

agrees, that Foster was subject to “full and effective”

cross-examination because he could be cross-examined on

the subject of the meeting with Mansfield during which he

made the identifications of Owens. This argument appears

to be based on United States ex rel. Thomas v. Cuyler, 548

F.2d 460, 463 (3d Cir. 1977), in which the court held that

the Confrontation Clause is satisfied if the witness is

sworn and does not refuse to answer questions, regardless

of the witness’ actual or feigned loss of memory. The

Third Circuit based its holding on Justice Harlan’s

regarding their ability to remember gave rise to inferences concerning

the truth of their prior out-of-court statements, and thus the jury had

a basis for evaluation that satisfied Rule 801(d)(1) and the Confronta-

tion Clause. In the case before us, however, there is no question but

that Foster’s memory loss is actual and complete.

Furthermore, all but one of the cases cited dealt with Rule

801(d)(1)(A), which states that prior inconsistent statements under

oath are not hearsay. Thus, these courts were really wrestling with the

question of whether a loss of memory is inconsistent with a prior

remembrance. Appellant, however, has invoked Rule 801(d)(1)(C),

not 801(d)(1A). Baker, the sole exception, did involve Rule

801(d)(1)(C), but the court held that the Rule 801(d)(1)(A) cases were

controlling, without any discussion of the differences between the two

provisions.

Finally, in all but one of the cases cited in this note, the witnesses

who suffered the “incredible” memory loss were criminal associates of

the defendants. The witnesses’ prior out-of-court statements in-

culpated the defendants, and presumably the memory loss was faked

in an attempt to avoid inculpating them further. On appeal, the def2n-

dants further tried to improve their legal position by arguing that the

witnesses’ courtroom loss of memory meant that the prior out-of-

court inculpatory statements were inadmissible. In Distler, the sole

case in which the forgetful witnesses were not criminal associates of

the defendant, the court noted the close personal friendship between

the defendant and the witnesses’ employer. Obviously, in the case

before us, Foster’s loss of memory, which was actual, not simulated,

did not constitute part of an attempt to make it more difficult to con-

vict the defendant.

18a

separate concurring opinion in Green, 399 U.S. at

172-189. Justice Harlan, however, less than a year later,

repudiated the approach he took in his separate opinion in

Green, see Dutton, 400 U.S. at 93-100 (Harlan, J., concur-

ring), and the Supreme Court has rejected it as well.

Roberts, 448 U.S. at 66 n. 9. Accordingly, we must reject

the government’s argument.

Because the jury could not evaluate the truth, or in this

case the correctness, of Foster’s remarks, appellant’s rights

under the Confrontation Clause have been violated,

Green, 399 U.S. at 159-61,'' unless a “showing of par-

ticularized guarantees of trustworthiness” of Foster’s out-

of-court identifications was made. Roberts, 448 U.S. at

66.'?

'' As we have discussed, supra note 10, the jury has a sufficient

basis for determining the truth of a witness’ testimony if the nature of

the witness’ claimed loss of memory is such that the jury can draw in-

ferences regarding the truthfulness and believability of the witness

from the claim itself. The cases described in note 10 all involved highly

dubious claims of memory loss that permitted the jury to evaluate the

reliability of both the witness’ out-of-court statement and his in-court

claim of memory loss. In Fensterer, the Supreme Court held that an

expert witness’ actual loss of memory as to how he reached certain

conclusions permitted the jury to draw inferences regarding the

reliability of the expert's conclusions, expecially when another expert

testified and cast doubt on those conclusions. An expert who cannot

remember why he arrived at his opinion is obviously not a very reliable

expert, and once counsel has brought this fact out on cross-

examination, the purposes of the Confrontation Clause have been

served. In the case before us, however, Foster’s memory loss results

entirely from a brutal assault, and thus the mere fact that he has very

little memory raises no inferences of any sort regarding the believabili-

ty of his out-of-court statements. No questions posed to Foster by the

defense could in any way assist the jury in its effort to determine

whether his identifications of Owens were correct.

'2 Normally the second exception applies when cross-examination is

not possible because the declarant cannot be produced at trial. The

government has the burden of proving the declarant’s unavailability.

Roberts, 448 U.S. at 65-66.

nh oe

19a

In determing whether there has been a “showing of par-

ticularized guarantees of trustworthiness” of an out-of-

court statement, we must examine the four so-called “in-

dicia of reliability” which were set forth by the Supreme

Court in Dutton. An out-of-court declaration is reliable if

(1) the out-of-court statement does not contain an express

assertion about past fact, (2) the possibility that the out-

of-court statement is founded on a faulty recollection is

extremely remote, (3) the circumstances under which the

statement was made are such that it can be supposed that

the declarant is not misrepresenting the facts, and (4) the

declarant had personal knowledge of the matters asserted

in the statement. 400 U.S. at 88-89 (plurality opinion). See

also Roberts, 448 U.S. at 65-66 (same). If the out-of-court

Statement “falls within a firmly-rooted hearsay exception”

then reliability and trustworthiness are presumed.

Roberts, 448 U.S. at 66. In the case before us, however,

none of the relevant hearsay exceptions applies. See supra,

part I1.B.

Turning to the Dutton indicia, we see that at least three

of the four are not present here. First, Foster’s out-of-

court identifications contained express assertions of past

fact. Second, we cannot say that the possibility is extreme-

ly remote that the out-of-court statements were founded

on a faulty (or even total lack of) recollection at the time

those statements were made. Third, we have no idea

whether Foster’s statements were based on information

provided by others and whether he may therefore have

unintentionally misrepresented the facts. As to the fourth

indicium, it is unclear whether Foster had personal

knowledge of the matters asserted in his identification of

appellant. See supra, part II.C.

We have sometimes looked to other factors beside the

Dutton indicia in determining whether an out-of-court

Statement is sufficiently trustworthy to be admitted

without cross-examination. See Barker v. Morris, 761

20a

F.2d 1396, 1403 (9th Cir. 1985). However, any such addi-

tional factors must give rise not only to a generalized belief

in trustworthiness, but also to “particularized guarantees”

of trustworthiness. Roberts, 448 U.S. at 66. In the case

before us there are no circumstances which provide those

“particularized guarantees.” With respect to Foster’s out-

of-court identifications we know only that Foster made

the identifications. Due to the fact that Foster had daily

visitors while he was in the hospital, but does not

remember any of them, there is a strong possibility that his

identifications of Owens may have resulted from informa-

tion provided by visitors rather than from his own percep-

tions at the time of the attack. In view of Foster’s loss of

memory we simply cannot determine on the basis of the

record before us whether the out-of-court identifications

are trustworthy.

Because Foster could not be subjected to cross-

examination that would afford the jury a satisfactory basis

for determining the truth of his out-of-court identifica-

tions, and because no “showing of particularized

guarantees of trustworthiness” of the out-of-court

statements was made, we conclude that appellant’s rights

under the Confrontation Clause were violated.'?

'S We also jote that there may be problems under the Due Process

Clause of the -ifth Amendment regarding the admission of Foster’s

testimony. The Supreme Court has indicated that when there is “a very

substantial likelihood of irreparable misidentification,” out-of-court

identifications would violate the Due Process Clause. Manson vy.

Brathwaite, 432 U.S. 98, 116 (1977). Because of Foster's complete loss

of memory, there may be such a likelihood in this case. However, in

view of our resolution of appellant’s Confrontation Clause claim, it is

unnecessary for us to reach the Due Process Clause issue here.

2la

B. Harmlessness of Error

Until recently, the law in our circuit regarding the effect

of a Confrontation Clause violation was clear. In Davis v.

Alaska, 415 U.S. 308, 318 (1974), the Court had said that

if a defendant is “denied the right of effective cross-

examination [there is} constitutional error of the first

magnitude and no amount cf showing of want of preju-

dice would cure it.” We construed Davis as holding that

the harmless error analysis of Chapman v. California, 386

U.S. 18 (1969), did not apply to violations of the Confron-

tation Clause. Rather, we said, as Davis appeared to say,

that a violation of that clause necessarily mandated rever-

sal. See, e.g., Chipman v. Mercer, 628 F.2d 528 (9th Cir.

1980); Skinner v. Cardwell, 564 F.2d 1381 (9th Cir. 1977),

cert. denied, 435 U.S. 1009 (1978). However, in order to

avoid automatic reversals divorced from any considera-

tions of prejudice, our rule was that we would not find a

violation of the Confrontation Clause unless the subject

matter upon which a witness could not be properly cross-

examined was sufficiently important. See, e.g., Chipman;

Cardwell. Thus, while our rule differed from Chapman

with respect to its analytical approach, the practical effect

of the two rules was much the same.

The Supreme Court has now rejected our analytical ap-

proach and held that the existence of violations of the

Confrontation Clause is to be determined without regard

to considerations of prejudicial effect on the trial as a

whole. It has also held, however, that reversal is required

only under the circumstances that apply in the case of

most other constitutional violations; specifically, it has

now decided that the Chapman harmless error standard is

applicable to violations of the Confrontation Clause.

Delaware v. Van Arsdall, 106 S. Ct. 1431, 1438 (1986).

Thus, we can no longer use the analysis applied in cases

such as Chapman and Skinner, although our prior deci-

sions may still be of precedential value.

22a

The Chapman harmless error test is a strict one indeed.

An error is harmless under Chapman only if the reviewing

court can say it was “harmless beyond a reasonable

doubt.” Van Arsdall, 106 S. Ct. at 1438. In determining

whether a violation of the Confrontation Clause meets the

Chapman standard, we must consider, inter alia, “ the im-

portance of the witness’ testimony in the prosecution’s

case, whether the testimony was cumulative, the presence

or absence of evidence corroborating or contradicting the

testimony of the witness on material points, the extent of

cross-examination otherwise permitted, and ... the

overall strength of the prosecution’s case.” /d.

Although we have held above, see part I1.C.3, that the

erroneous admission of Foster’s testimony was harmless

error under the non-constitutional test, we must now con-

sider whether it was harmless under the constitutional

standard, because the two tests clearly utilize different

standards. Under the non-constitutional test, an error is

harmless if the prejudice resulting from the error was more

probably than not harmless. See supra part II.C.3.

However, under the strict constitutional test of Chapman,

an error is harmless only if there is no “reasonable

possibility that [it] might have contributed to the convic-

tion.” Chapman, 386 U.S. at 23.

Examining the relevant factors mentioned in Van

Arsdall—and we recognize that different cases may re-

quire the examination of different factors —we conclude

that the error here requires reversal. Foster’s testimony

was certainly important; in fact, it is difficult to think of

any testimony more highly material than a victim’s iden-

tification of his assailant, or more prejudical to a defend-

ant’s case. The fact that the jury was informed that Foster

could not remember why he had identified Owens

diminishes the impact of this testmony but does not

change our basic view of its effect. The remaining

testimony inculpating appellant was all given by witnesses

EE ©

23a

whose credibility the jury would have had every reason to

question: prison inmates who had received lengthy prison

terms for major felonies, who admitted having made prior

statements under oath that were irreconcilable with their

testimony at trial, who were quite likely aware that their

parole dates might be advanced due to their cooperation

with the government and whose testimony was internally

inconsistent and inconsistent with each other’s. Moreover,

for the reasons we explained earlier, no meaningful cross-

examination of Foster could be conducted with respect to

the subject of his identification of the defendant. Finally,

the prosecutor’s case without Foster’s testimony was not

overwhelming. Having considered all of these facts and

circumstances we cannot say that there is no reasonable

possibility that Foster’s testimony might have contributed

to Owens’ conviction. Chapman, 386 U.S. at 23. Accord-

ingly, the error was not harmless beyond a reasonable

doubt.

IV. CONCLUSION

Appellant’s rights under the Confrontation Clause were

violated, and the error was not harmless. We therefore

reverse appellant’s conviction and remand the case for a

new trial.

REVERSED AND REMANDED.

24a

BOOCHEVER, Circuit Judge, dissenting:

I must respectfully dissent because I believe the majority

errs by (1) failing to remand to the district court for a fac-

tual determination whether Foster had personal knowl-

edge of the identity of his attacker as required by Fed. R.

Evid. 602, (2) holding that Foster was not “subject to

cross-examination” within the meaning of Fed. R. Evid.

801(d)(1(C), and (3) holding that Owens’ right to confront

Foster under the Sixth Amendment was violated.

A. Personal Knowledge

Fed. R. Evid. 602 provides that “[a] witness may not

testify to a matter unless evidence is introduced sufficient

to support a finding that he has personal knowledge of the

matter.” (Emphasis added.) The majority concludes that

the district court did not rule on the issue of Foster’s per-

sonal knowledge of the identity of his assailant after the

testimony at trial failed to correspond with the prose-

cution’s offer of proof. The majority also states that it is

not clear that Foster had personal knowledge of his at-

tacker. I do not quarrel with these conclusions. The ma-

jority proceeds to dispose of the case on the Confrontation

Clause issue, concluding, “we do not believe it necessary

or advisable to determine whether Foster had personal

knowledge of the identity of his attacker.”

I would remand for a determination of the factual ques-

tion of Foster’s personal knowledge. If the district court

finds that he did not have personal knowledge, we need

not reach the constitutional issue.

If the district court on remand finds that Foster did not

actually observe his attacker (of if the court is unable to

make a determination), then the Rule 602 personal

knowledge threshold forecloses use of his testimony. The

conviction must then be reversed to permit a trial without

allowing either Foster or the agent to testify as to Foster's

Fe a i ly eal

25a

out-of-court identification. If the district court finds that

Foster did actually observe his attacker, then the personal

knowledge threshold is passed, and the evidentiary and

constitutional issues properly may be reached for resolu-

tion. Because I also differ from the majority's disposition

of those issues, | am obliged to address them.

B. “Subject to Cross-Examination” Under Rule 801(d)1C)

Rule 801(d)(1)(C) provides that a statement is not hear-

say if “[t}he declarant testifies at the trial . . . and is sub-

ject to cross-examination concerning the statement, and

the statement is. . . one of identification of a person made

after perceiving him.” Fed. R. Evid. 801(d)(1)(C) (em-

phasis added). Again it becomes clear that a finding of

Foster’s personal knowledge is critical to the proper deter-

mination of the propriety of his testimony. If it is found

that Foster never perceived his attacker, then his testimony

is inadmissible, and this determination needs no analysis

into whether the rule requires effective cross-examination

as to the basis underlying the identification.

Assuming arguendo that Foster did perceive his at-

tacker, I cannot agree that he was not “subject to cross-

examination” within the meaning of Rule 801. I have no

objection to the maijority’s elucidation of Rule

801(d)(1)(C) and its rationale. I believe, however, that the

requirements of the rule and its rationale were met in the

cross-examination which occurred in this case. I disagree

with the majority’s conclusion that the extra-judicial iden-

tification may not be admitted unless the declarant is sub-

ject to cross-examination on the reasons, facts, and cir-

cumstances underlying the identification. The rule simply

requires that the declarant be subject to cross-examination

concerning the statement. It does not require that cross-

examination of the declarant be sufficient to satisfy either

the examining party or the reviewing court as to the basis

26a

for the making of the identification. The Supreme Court's

recent observation concerning the role of cross-

examination in fulfilling the purpose of the Confrontation

Clause is apposite to the concerns of Rule 801: “Generally

speaking, the Confrontation Clause guarantees an oppor-

tunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to

whatever extent, the defense might wish.” Delaware v.

Fensterer, 106 S. Ct. 292, 295 (1985) (emphasis in

Original). All that Rule 801 requires is the opportunity for

effective cross-examination concerning the out-of-court

statement. I believe Owens had that opportunity.

Foster’s testimony complied with the literal terms of the

rule, for he was fully available for cross-examination as to

his extra-judicial identification. He testified at trial, and

was both subject to cross-examination and actually cross-

examined as to the basis of his prior identification. Fur-

ther, neither the policy nor the rationale underlying the

rule was violated. The jury had “ample opportunity to test

him as to the basis of his former statement.” Cross-

examination elicited that at the time of trial he could not

remember seeing his attacker, could not remember

anything up to the point of his identification of Owens in

the hospital, could not remember anything after that iden-

tification, but could “vividly” recall his statement of iden-

tification. Further, cross-examination revealed that at the

time he made the statement, he knew why he had iden-

tified Owens, though he could no longer remember the

reason. Thus, contrary to the majority's statement that

there is no question but that Foster’s memory loss was ac-

tual and complete, Foster was able to testify and be cross-

examined as to what he did remember. In the face of his

selective memory, I believe the jury had an adequate basis

to weigh the credibility of Foster’s testimony. | also ob-

27a

serve that whether his memory loss was actual and com-

plete is properly a question for the jury.'

The importance of allowing the jury to weigh this type

of testimony may be illustrated by the following analogy.

Assume an attack and subsequent loss of memory as in

this case, but instead of an incriminating extra-judicial

identification, the victim looked at the photo-spread and

stated “Owens was not the assailant.” Later at trial, the

victim cannot remember why he made the statement, only

that he remembers vividly having made the statement, and

that he had a reason for doing so. Assuming further that

the victim had personal knowledge, shouldn't the state-

ment be admitted in Owens’ defense? It seems to me to be

admissible and, if so, | see no reasoned basis under Rule

801(d)(1(C) for distinguishing incriminating out-of-court

statements.

Because Rule 801 requires no more than the opportunity

to cross-examine a declarant as to an out-of-court prior

identification, and because Foster was fully subject to

cross-examination within the meaning of the rule, his

testimony was admissible under the rule.

' The cases cited by the majority for the proposition that the court

is to determine the nature and extent of the witness’ memory loss are

not persuasive. | would agree that there may be a threshold at which a

court could conclude that a witness has not been subject to cross-

examination. In the cases cited by the majority, however, the court

permitted the jury to hear the testimony and exercise its function in

weighing the credibility of the testimony. See, ¢.g., United States v.

Baker, 722 F.2d 343, 348-49 (th Cir. 1983), cert. denied, 465 US.

1037 (1984); Vogel v. Percy, 691 F.2d 843, 846 (7th Cir. 1982), United

States v. Rogers, $49 F.2d 490, 494-96 (8th Cir. 1976), cert. denied,

431 U.S. 918 (1977).

28a

C. Confrontation Clause

It is only if Foster's testimony is determined not to be

hearsay that the court properly reaches the Confrontation

Clause issue. Again assuming arguendo that Foster had

personal knowledge of his assailant, | disagree with the

majority's holding that Foster was not subject to cross-

examination sufficient to satisfy the requirements of the

Sixth Amendment.

As a preliminary matter, | disagree with the majority's

characterization of this case as presenting the question

that was identified but left open by the Supreme Court in

California v. Green, 399 U.S. 149, 168-70 (1970), and

Delaware v. Fensterer, 106 S. Ct. 292, 295 (1985). That

question concerns an out-of-court statement of identifica-

tion made by a witness who has no memory whatsoever of

either the event itself or the making of the extra-judicial

identification. In Fensterer, the Court said

We need not decide today the question raised but not

resolved in Green. As Green's framing of that ques-

tion [whether there are circumstances in which a

witness’ lapse of memory may so frustrate any oppor-

tunity for cross-examination that admission of the

witness’ direct testimony violates the Confrontation

Clause] indicates, the issue arises only where a “prior

Statement,” not itself subjected to cross-examination

and the other safeguards of testimony at trial, is ad-

mitted as substantive evidence.

106 S. Ct. at 295 (emphasis added). The unresolved ques-

tion would be presented only if the statement had been in-

troduced without Foster testifying or without his having

any recollection of making the out-of-court statement.

Here, as I have indicated, Foster was available for cross-

examination and was actually cross-examined concerning

his prior statement.

29a

The majority errs by equating the requirement of forc-

ing the declarant to submit to cross-examination, Green,

399 U.S. at 158-59, with the question of whether it was

possible for Owens to cross-examine him effectively.

“*The main and essential purpose of confrontation is to

secure for the opponent the opportunity of cross-

examination.’ " Fensterer, 106 S. Ct. at 294-95 (quoting

Davis v. Alaska, 415 U.S. 308, 315-16 (1974), quoting 5 J.

Wigmore, Evidence § 1395 (3d ed. 1940)) (emphasis in

original). “Generally speaking, 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.” Fensterer, 106 S. Ct. at 295 (emphasis in original).

Foster answered all questions put to him; he stated what

he could remember and what he could not remember. He

was thus subjected to cross-examination as required by

Green.

The majority finds that in this case, however, the type

and extent of cross-examination to which Foster could be

subjected could not serve to expose several of the dangers

surrounding out-of-court identification — misperception

and failure of memory. To the contrary, the cross-

examination directly addressed these issues. The question-

ing elicited that Foster could not remember seeing his

assailant, nor could he remember why he identified Owens

in the hospital. This was an adequate basis for counsel to

argue that Foster's selective memory is not credible, and to

permit the jury to make its determination of the weight to

accord his testemony.

| am wneonvinced by the majority’s attempt to

distinguish Fensrerer. If a jury can be permitted to draw

inferences regarding the reliability of an expert witness in

the face of that witness’ actual loss of memory as to the

basis of his opinion, why cannot a jury also draw in-

ferences regarding Foster’s reliability in. the face of his

selective memory?”

30a

I also am struck by the curious result of the majority’s

analysis. In a case like Green, involving a witness who pro-

fessed a lack of memory which the court found to be in-

credible or unbelievable, the jury will be permitted to hear

the former statement and exercise its function of measur-

ing the witness’ credibility. If the court finds the memory

loss believable, as in this case, then it will not permit the

jury to hear the testimony. It is the jury’s function to

determine whether Foster’s memory loss is actual and

complete. We should not preempt the jury from exercising

its role.

The Supreme Court has found Confrontation Clause

violations when a court has denied the right to cross-

examination, e.g., Pointer v. Texas, 380 U.S. 400, 406

(1965), when a court has limited cross-examination of a

principal witness on a material issue such as bias, e.g.,

Davis v. Alaska, 415 U.S. 308 (1974), and when cross-

examination has been completely thwarted by a witness’

refusal to answer any questions, e.g., Douglas v.

Alabama, 380 U.S. 415 (1965). The Court has never found

a denial of the right of confrontation when a witness

responds concerning some relevant events but alleges a

loss of memory as to others. In its Fensterer decision, the

Court addressed an almost identical issue and found no

violation. We should follow that teaching.

3la

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 84-5015

D.C. No. 83-630-AWT

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

JAMES JOSEPH OWENS, DEFENDANT-APPELLANT.

Appeal from the United States District Court

for the Central District of California

[Filed May 12, 1986)

THIS CAUSE came on to be heard on the Transcript of

the Record from the United States District Court for the

Central District of California and was duly submitted.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court, that the judgment of

the said District Court in this Cause be, and hereby is

reversed and remanded.

32a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 84-5015

D.C. No. 83-630-AWT

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

JAMES JOSEPH OWENS, DEFENDANT-APPELLANT.

[Filed September 2, 1986]

Before: NELSON, BOOCHEVER and REINHARDT,

Circuit Judges.

A majority of the panel has voted to deny the petition

for rehearing and unanimously voted to reject the sugges-

tion for rehearing en banc.

The full court has been advised of the suggestion for en

banc rehearing, and no judge of the court has requested a

vote on the suggestion for rehearing en banc. Fed. R. App.

P. 35(b).

The petition for rehearing is denied and the suggestion

for a rehearing en banc is rejected.

US GOVERNMENT PRINTING OFFICE 1986— 181.483/40055

OPPOSITION

BRIEF

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING, IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUMD,

a IN THE SUPREME COURT OF THE UNITED STATES )

OCTOBER TERM, 1986

Deted: January 7, 1987 Attorneys for Respondent

Leyole Law Schoo)

144) West Olympic Blvd.

tof haeeiee, 0015-1980

(a (5) 136-100!

Steniey A. Golden

Leyele Lew Schoo)

* Appointed under the Crisinge) Justice Act on March 29, 1984

by the Hinth Circuit Court ef Appesis

STATEMENT

a. Ontwodvetion.. «+s ee ee eererererrrnere 2

®. OesWO sss seeeeevveevererveeeree eee 5

1. There is no legitimate conflict with other circuits

or with relevant state court decisions. .....++

e. Wnited States ex col. Thomas y.Cuvier.-.- - 2

b. Other cases relied upon by the government. . 4

2. The decision below is fully consistent with this

Court's opinion in Delaware vy. Fensterer.- +--+ - is

3. The decision below, with respect te Federal Rule of

Evidence 601(4) (1) (C), wes correctly decided and is

not in conflict with eny cireuit court decision. . . 2)

Gomewyetow . wt ttt th he ee Hh Hh Hh Hh Hh Hh HH a4

Cases

California v. Green, 299 U.S. 149, (2970). - se es

Delaware vy. Fensterexr, 106 S.Ct. 292 (1985)... +>

Rutten vy. Bvane, 400 U.S. 74 (2970). se we ee eee

Manson ¥. Brathwaite, 492 U.S. 98, (2977). - ww ee

People ¥. Pepper, 193 Cole. S05, S68 P.24 446 (1977)

United States vy. Bailey, 581 F.24¢ 341 (94 Cir. 1978)

United States v. Inaxam, 600 F.2¢ 260 (10th Cir. 1979)

eer TT

United States vy. Lewis, 565 F.2¢ 1248 (2¢ Cir. 1977)

United States vy. O'Malley, 79¢ F.2¢ 891 (7th Cir. 1986)

er er 402 F.24 449 (4th Cir.),

° U.8. O76 (2074) . « « we we we

Rule #0) ($8) Cnc in, Ge Eevee ee. Gereae (ie ee ae me ee ee > ae

Weinstein end Berger, Helnstein's Evidence ()**?)

9, 22,213,234,

19,20

as, 20

1,4,9,20,22,

13, 24,19,20,2)

1,4,9,20,32,1)

24,17, 28,18,26

a4, a5

4, 15

a2,33,37

QUESTION PRESENTED

The question presented is fect specific: Whether the Court

eof Appeals properly concluded thet en out-of-court ident ificetion

sade by on eeseult victi= with « semory lapse wes, wn@er the

fects and circumstances presented, unreliable and. therefore.

ine@nicsible unger the Confrontation Clause of the Sixth

Amendeent. In eo holding, the Court of Appesie fashioned no

nevel principles of lew. Rather it epplied straight forward

etenderés endorsed by thie Court in Obie vy. Roberts, 448 0.5. 5

(2000) en@ Dutton vy. Evans. 400 U.S. 74 (1970). The sole

question, therefore, is whether, in applying those stendarés, the

Court of Appesle errived et the correct conclusion.

at feewe te the admissibility of an assault victim's out-of-

court i@entificetion of his assailent. The Court of Appeals held

that the out-of-court identification was inadmissible because,

wend@er the fects and circumstances presented, the identification

wes untrustworthy and unreliable. Government's Appendix

(Gow. App.) et 240-202.) The government now petitions this Court

te rewlew the fedgment of the Court of Appeals, not because the

Court ef Appeele applied the wrong principles of law, but beceuse

the Court of Appeals achieved a result with which the government

éisagrees.

Te thie end the government colors its Petition for a Writ of

Certioreri with a carefully sanitized version of the other

evl@ence introduced at trial. Of course, the only facts relevant

te the gowernment's Petition ere those involving the assault

whetin’s reeellection of the assault and his subsequent out-of-

court i@entifieation of defendant. The focus on the other

evl@ence le Geeigned to suggest « great injustice has been done

by the reweree). This Court's intervention is apparently

required te eehieve the correct result--regardless of the actual

legel leseee presented. Indeed, boiled down to its essentials,

the gowernment'’s dispute with the Court of Appeals’ decision is

with the reselt, not with reasoning or legal principles thet led

te thet result.

tm any event, the government's treatment of the other

evl@ence le quite misleading. That evidence consists largely of

1 sgh) weferences to the Court of Appeals decision will be to

the correspending pages in the Appendix to the government's

Petition fer @ Writ of Certiorari.

testimony by four inmates, three of whom claimed to have been

eyewitnesses to the assault. The testimony of these witnesses

was literally incredible. Not only did the witnesses contradict

one another regarding major details of the assault, each of the

witnesses’ testimony was fraught with internal inconsistencies

and illogic. Each had made prior inconsistent statements. One

of the inmates offered eight different versions of the assault.

The only thread that held the pultifarious descriptions together

was the out-of-court statement by the victim of the assault

identifying defendant as his assailent.? Importantly, none of

the inmates testified that the victim had an opportunity to

observe or to in any manner identify his assailant.

As such, this other evidence has no bearing on the

reliability of the out-of-court identification--the only issue

legitimately presented by the government's Petition for a Writ of

Certioreri. To the extent this Court is curious, however, &

detailed description of the inmate testimony is found in the

appellete record at pages 23-33 of Appellant's Opening Brief on

Appeal. The focus of this Court's consideration, however,

should be upon those facts pertinent to the admissibility of the

victim's out-of-court identification and not upon the

government's misguided effort to create an emotionally attractive

certworthy case.

2 wWotwithstanding its sanitized portrayal of the evidence in

the text of its Petition, the government appears to concede the

insufficiency of the other evidence in a subsequent footnote that

describes that evidence as only “clear and convincing,” i.@., not

beyond « reasonable doubt. Petition for a Writ of Certiorari

(Petition) et 17 n.6.

The government does suggest a conflict between the decision

below and decisions in other circuits. However, this theoretical

conflict exists, if at all, only because of the government's

overly generalized approach to both this case and the supposedly

conflicting decisions. Indeed, the government's notion of what

constitutes a conflict is quite liberal. Apparently there isa

conflict whenever one court admits evidence and another does

not--the results, and not legal principles, seem to be the

government's primary concern. In fact, there is a remarkable

consistency in the approach lower courts have adopted in

assessing questions such as the one presented here. That

approach is controlled by this Court decisions in Qhio v.

Roberts, 448 U.S. 56 (1980) and Dutton v. Evans, 400 U.S. 74

(1970). Indeed, if there is « conflict to be discovered in this

case, it is between the government's theory of the Confrontation

Clause and the position adopted by this Court in Boberts end

Evans.

In addressing defendant's Confrontation Clause claim, the

Court of Appeals carefully avoided painting with a broad brush.

Specifically, it did not hold, as the government now seens to

suggest, that « loss of memory standing alone whould require

suppression of a prior out-of-court statement. Rather, the Court

carefully limited its decision to the facts and circumstances of

this case. The question was whether the particular out-of-court

identification et issue was sufficiently reliable to overcome

Confrontation Clause concerns. Those concerns may have been

triggered by the declarant's memory loss; they certainly were not

resolved by it.

In sum, there ise nothing about this case, either legally or

factually, thet merits this Court's consideration.

2. Facts.

On April 12, 1962, John Foster, a correctional officer et

Lompoc Federal Penitentiary, was brutally assaulted by an

individual wielding a metal pipe. Foster was beaten about his

head and arm leaving his permanently disabled. At trial, Foster

testified that he could not remember whether he had seen his

assailant. 2 Transcript at 69-90. He further testified that

although he knew defendant quite well and recognized him from

daily interactions in the prison, Foster had no recollection of

defendant assaulting him. Ig. at 101. With respect to the

assault, Foster testified that he entered a T.V. room in the

prison, felt an impact on his head and looked down and saw blood

on the floor. [@. Other than these bare details, Foster had no

recollection of the incident.? gee also id. at 116-117 (cross-

examination). Importantly, Foster did not testify that although

he had seen his assailant, he could not now remember who that

person was. Rather, he testified that he could not remember

whether, during the attack, he had seen hie assailant at el).

Over defense counsel's objection,‘ Foster was permitted to

testify that shortly before he was discharged from the hospite)

3 In ite Petition, the government states that Foster testified

“thet hie eesailant was armed with « piece of pipe." Petition at

6. Thies ie incorrect. Foster 4id, however speculate that the

weapon used against him “might” have been « pipe. 2 Tr. at 90-

91. Foster certainly did not testify thet he saw the weapon.

;

4 Defense counsel raised four objections to the introduction of

any out-of-court identifications by Foster: 1) lack of personal

knowledge; 2) hearsay not coming within the exclusion provided by

Federal Rule of Evidence #01(4)(1)(C)? 3) violation of the Sixth

Amendment Confrontation Clause; and 4) violation of the Fifth

he met with Special Agent Tom Mansfield and that in response to 4

question from Mansfield, Foster stated that "Owens" had assaulted

him. Ig. at 95. Foster then picked defendant's picture from @

photo-spread.® Ig. at 97. Although Foster testified that there

was no doubt in his mind at that time that defendant was his

assailant, he could not at the time of trial recall why he hed

believed this. Jd@. et 112. Nor was any evidence introduced

indicating that Foster had explained the basis for the

identification to Mansfield at the time it was wade. In fact,

Foster testified that he did not know whether he had based his

identification on statements that somebody elee may have made to

him or upon his own perceptions of the assault. j[g. at ii4.

Evidence at trial indicated that during his one month stay in the

hospital, Fos!er was visited occasionally by prison personnel and

every day by his wife. Foster could not remember any of these

vieits. J¢@. at 96.

Alec over defense counsel's objection, Special Agent

Mansfield testified consistently with Foster that on May 5, 1982,

in response to a question posed by Mansfield, Foster stated thet

“Owens” (the defendant) was his assailant. 5 Tr. at 24. Again,

the basis for Foster's identification of defendant is not in any

Amendment Due Process Clause. i Tr. at 3-6.

5S he evidence showed that Foster and defendant were well

acquainted with one another prior to the assault. Hence, the

selection of defendant's likeness from the photo-sepread added

nothing to Foster's verbal response to the Manefield question.

It indicated only that Foster could recognize « photograph of

defendant, & person with whom he was acquainted and whom he then

believed to be hie sessilent.

manner suggested. Mansfield's testimony, like Foster's, reveals

only that Foster believed on the date of the interview thet

defendant was his assailant. In addition, Agent Mansfield had

attempted to interview Foster on « previous eccasion during which

Foster identified hie assailant only as @ person whose name

rhyned with "coma." Ig. at 22.°

The governasnt also presented testimony from Dr. James B.

Butterfield, the neurosurgeon who attended Foster during the

latter's recuperation. 2 Tr. at 132. Dr. Butterfield testified

that the nature of Foster's injuries could result in a gredual

loss of memory or even & selective loses of memory. id. at i61-

70. This testimony permitted the jury to speculate whether

Foster hed in fact seen his attacker and, due to his injuries,

had now lost all memory of that aspect of the ssssult. This,

even though no evidence was introduced indicating that Foster hac

in fact seen hie sessilent.

The jury returned « verdict of guilty of Assault with Intent

to Commit Murder. 6 Tr. at 4. The district court sentenced

defendant to the maximum twenty year term to be served

consecutively with defendant's current sentence. jg. *t 2).

3. The Court of Appeals Opinion.

On appeal, defendant challenged the edmissibilty of Foster's

out-of-court identification on three grounds. First, defendant

argued that the government failed to establish thet Foster's

testimony derived from his own personal knowledge as required by

6 the District Court pernitted Dr. Ted Bader, the prison

physician, to testity thet Foster, in a coversation with Beder,

hed identified defendant es his esssilent. 2 Tr. et 207-208.

foster 4id not recell any such meeting with Beder. 2 Tr. at si.

Federal Rule of Evidence 602.’ Since Foster could sot remember

whether he hed seen his assailant and since he could not remember

why he later identified defendant a» the eeseilant, there wes no

basis upon which to conclude that Foster's out-of-court

identification satisfied the personal knowledge requirement of

Rule 602. Wext, defendant ergued that Foster's out-of-court

etatenent was hearsay and not within the exclusion provided by

Federal Rule of Evidence 801(4)(1)(C).° Specifically, defendant

argued that Foster's memory lapse rendered him unavailable for

cross-examination es required by Rule 801(4) (1) (C)- Finelly,

Gefendant ergued that introduction of the out-of-court

identification violated the Confrontation Clause of the Sixth

Amendment.

The Court of Appeals did not resolve the iesvues reised with

respect to Rule 602 and Foster's leck of personel knowledge.

Gov.App. et 4a-7a. It @id@ conclude, however, that Rule

801 (4) (1) (C)*s requirement that the Geclarant be “subject to

cross-examination concerning the statement" mandated that the

@eclarant be available to testify es to the underlying besis for

the out-of-court identification. Gov.App. at Se-lie. In the

absence of such availability, the Court reasoned, there would be

7? wederal Rule of Evidence 602 provides, “A witness say not

testify to a matter unless evidence is introduced sufficient to

support a finding that he hes personal knowledge of the satter.”

® ypederal Rule of Evidence 601(¢)(1)(C) provides, “A statement

ie not hearsay if . . . the declarant testifies at the triel or

hearing and is subject to cross-examination concerning the

etetement and the statement is . . . one of identification ef s«

person sade after perceiving his.”

no method for testing the reliability of the identification and,

hence, Rule 801(d)(1)(C)'s hearsay exclusion would not be

triggered. JId¢. at 10a. Since Foster was not available within

the meaning of the exclusion, introduction of his out-of-court

identification was error. Jd¢@. However, applying the “more

probable than not" standard, the Court of Appeals concluded this

error was harmless. Jd. at lla-l2a.

In assessing the potential Confrontation Clause violation,

the Court applied standards endorsed by this Court in Ohio v.

Roberts, 448 U.S. 56, 65-66 (1980), Dutten vy. Evans, 400 U.S. 74,

g6-89 (1970) and California v. Green, 399 U.S. 149, 161 (1970).

In thie regard, the Court of Appeals observed that the

admissibility of an out-of-court statement turned on whether the

trier of fact has been given “a satisfactory basis for evaluating

the truth of the [out-of-court) statement." Gov.App. at lja

(quoting Dutton, gupra, 400 U.S. at 89 and Green, 399 U.S. at

161). The question in this case was whether Foster's particular

loss of memory had so undermined the truth evaluating process as

to render the out-of-court identification inadmissible.

The Court of Appeals noted three potential dangers to the

truth seeking function that could be exaccerabated by a lack of

effective cross-examination:

First, misperception: the declarant may not have accurately

perceived what he describes, or he may not have perceived it

at ell. Second, failure of memory: at the time the

declarant makes his statement his memory may not correspond

completely and accurately with his earlier rceptions.

Third, faulty narration: the declarant, in his statement,

may fail, either deliberately or inadvertently, to convey

what he remembers accurately.

Gov.App. at 14a. Applying these considerations to the facts and

circumstances of this case, the Court noted that two of the above

dangers were implicated by Foster's lack of menmory~--misperception

and failure of memory:

No one, including Foster, knows whether (1) Foster actually

perceived his assailant, (2) if so, whether his perception

of his attacker was accurate, and (3) whether at the time of

his out-of-court identifications he had any memory of having

observed that assailant. Not even the most skilled cross-~

examiner could elicit information that would help reduce the

dangers of misperception or failure of memory.

Gov.App. at 16a. The Court of Appeals did not, however, hold

that the Confrontation Clause was automatically violated because

of the above concerns. The out-of-court identification would

still be admissible if the government could make a “showing of

particularized guarantees of trustworthiness" as required by this

Court in Qhio vy. Roberts, 448 U.S. at 66. In order to make this

determination, it was necessary to evaluate the four “indicia of

reliability" described in Dutton vy. Evans, 400 U.S. at 88-89 and

implicitly endorsed in Ohio v. Roberts, 448 U.S. at 65-66.

The Court of Appeals described those indicia as follows:

An out-of-court declaration is reliable if (1) the out~-of-

court statement does not contain an expression assertion

about past fact, (2) the possibility that the out-of-court

statement is founded on faulty recollection is extremely

remote, (3) the circumstances under which the statement was

made are such that it can be supposed that the declarant is

not misrepresenting the facts, and (4) the declarant had

personal knowledge of the matters asserted in the statement.

Gov.App. at 19a (citing Dutton, supra, 400 U.S. at 88-89 and

Roberts, supra, 448 U.S. at 65-66). The Court of Appeals

concluded that at least three of the four indicia of reliability

(and perhaps all four) were not present in this case:

First, Foster's out-of-court identifications contained

express assertions of past fact. Second, we cannot say that

the possibility is extremely remote that the out-of-court

statements were founded on a faulty (or even total lack of)

recollection at the time those statements were made. Third,

we have no idea whether Foster's statements were based on

information provided by others and whether he may therefore

have unintentionally misrepresented the facts. As to the

fourth indicium, it is unclear whether Foster had personal

knowledge of the matters asserted in his identification of

appellant.

Gov.App. at 19a. The Court of Appeals, therefore, concluded, "In

view of Foster's loss of memory we simply cannot determine on the

basis of the record before us whether the out-of-court

identifications are trustworthy." JI¢. Accordingly, introduction

of the out-of-court identifications violated the Confrontation

Clause.? The error was not harmless beyond @ reasonable doubt.

Gov.App. at 2la-23a.

THE WRIT SHOULD BE DENIED

There is no legitimate basis for granting a writ of

certiorari in this case. There is no novel or pressing question

of law calling for this Court's attention. The Court of Appeals

merely applied straightforward principles of law established by

this Court. In so doing, the Court of Appeals arrived at a

conclusion with which the government happens to disagree. That

happenstance is not, however, an adequate basis for granting

certiorari. Nor is there is any legitimate conflict with

decisions by other Courts of Appeals. The government's

suggestion to the contrary derives either from an unfortunate

misunderstanding of the term, “conflict,” or upon & misreading of

the cases discussed in the government's Petition.

9 The Court of Appeals also noted, but did not resolve, a

potential Due Process vieletion. Citing Manson vy. Brathwaite,

432 U.S. 98, 116 (1977) ("a very substantial likelihood of

irreparable misidentification"), the Court stated, because of

Foster's complete loss of memory, there may have been «4

substantiel likelihood irreparable misidentification in this

case. Gov.App. at 20a n.13. Resolution of this point was

unnecessary in light of the Court's holding with respect to the

Confrontation Clause. jg.

1. There is no legitimate conflict with other circuits or with

relevant estate court decisions.

a. United States ex rel. Thomas vy. Cuyler.

The government is correct that the Court of Appeals here

specifically rejected an approach to the Confrontation Clause

used by the Third Circuit in United States ex rel. Thomas vy.

Guyler, 548 F.24 460 (3rd Cir. 1977). Gov.App. at 17a. In

Guyler, the Third Circuit adopted the approach endorsed by

Justice Harlan in his concurring opinion in California vy. Green.

gupra, 399 U.S. at 172-189. Under that approach physical

presence at trial is sufficient to satisfy the requirements of

the Confrontation Clause even if a witness claims a complete

memory loss. 399 U.S. at 174; Cuyler, 548 F.2d at 463. Quite

clearly, the Court of Appeals here adopted a more flexible

approach. The contention that the rejection of Cuyler created a

conflict is, however, quite mistaken.

CGuyler was decided three years before this Court's decision

in Ohio v. Roberts, supra. In Roberts, this Court carefully,

Clearly and specifically rejected the Harlan/Cuyler model, opting

instead for what it described as a middle course between that

approach and approaches which the Court found overly solicitous

of defendants’ interests. 448 U.S. at 65-68 n.9. That “middle

course" involved an inquiry into the trustworthiness of the out-

of-court statement using the “indicia of reliability” described

in Dutten, gaupra. 448 U.S. at 65-66. Hence, in refusing to

follow Guyler, the Court of Appeals merely declined to follow a

precedent that had been repudiated by this Court. Cuyler is not

good law. The Ninth Circuit appropriately declined to follow it.

Surely adherence to a superceding decision by this Court does not

create a conflict within the meaning of this Court's

discretionary jurisdiction.

The government contends, however, that the Roberts Court did

not reject .stice Harlan's thesis of the Confrontation Clause.

Petition at 13-14 n.4. Any fair reading of footnote nine of the

Roberts majority opinion belies that contention. In footnete

nine, the Roberts Court outlines various suggested approaches to

the Confrontation Clause related to the introduction of hearsay

against criminal defendants. 446 U.S. at 66-68 n.9. In 80

doing, the Court specifically refers to the approach suggested by

Justice Harlan in Green es well as to other more liberal

approaches. In rejecting these alternatives to the middle

course, the Court states, "Our reluctance to begin anew is

heightened by the Court's implicit prior rejection of principal

alternative proposals, see Dutten vy. Evans, 400 U.S., at 93-100

(concurring opinion), and California v. Green, 399 U.S., at 172-

189 (concurring opinion)." 448 U.S. at 68 n.9. The latter

reference is to Justice Harlan's opinion and theory. This

certainly gounds like a rejection, and the text of the Roberts

opinion confirms that conclusion. 448 U.S. at 65-66. In short,

the Roberts Court made express what the Green Court had implied,

the approach suggested by Justice Harlan (and adopted in Cuyler)

was not acceptable to a majority of the United States Supreme

Court. ?°

10 yeportantly, the Harlan/Cuyler approach has not been adopted

by any other circuit. In fact, there appears to be no post-

Roberts decision in the Third Circuit applying Cuyler. Indeed,

the Third Circuit seems to have cast some doubt upon the rigid

Guyler approach even before this Court's decision in Roberts.

See United States v. Bailey, 581 F.2d 341, 350-351 & n.15 (3d

Cir. 1978). The only other case adopting the Harlan/Cuyler

approach is People v. Pepper, 193 Colo. 505, 568 P.2d 446 (1977).

That case, like Cuyler, was decided prior to this Court's

decision in Roberts.

Finally, and contrary to the government's assertion

(Petition at 13 n.4), Justice Harlan also repudiated the approach

to the Confrontation Clause he had articulated in Green. Dutton

vy. Evans, 400 U.S. at 95 ("Nor am I now content with the position

I took in concurrence in California v. Green... .") (Harlan,

J., concurring). Moreover, although in his Dutton opinion

Justice Harlan continued to embrace a narrow view of the

Confrontation Clause as a limit on the rules of evidence, he

found the Due Process Clauses of the Fifth and Fourteenth

Amendments to be quite applicable. Jd. at 96-97, 99. The

appropriate inquiry under those clauses was whether the hearsay

to be admitted “evince some likelihood of trustworthiness." Jd.

at 99. Thus, although Justice Harlan used a cifferent

constitutional vehicle, he arrived at the same conclusion as the

plurality in Dutton: the admissibility of hearsay in a criminal

case depends on potential trustworthiness. Compare 400 U.S. at

89 (plurality) with 400 U.S. at 99 (Harlan, J., concurring).

b. Other cases relied upon by the government.

The two other primary cases relied upon by the government in

suggesting a conflict were also decided before this Court's

decision in Roberts. United States v. Payne, 492 F.2d 449 (4th

Cir.), cert. denied, 419 U.S. 876 (1974); United States vy.

Ingana, 423 F.2d 1165 (2d Cir.), cert. denied, 400 U.S. 641

(1970). Of course, this pre-Roberts time frame limits the

current relevance of these decisions; but even if this were not

so, there is no conflict between those decisions and the

immediate decision of the Ninth Circuit.

In United States v. Payne, the Fourth Circuit permitted the

admission of a prior inconsistent statement even though the

declarant, at trial, claimed a lack of memory. However, before

arriving at that conclusion the court assessed the trier of

fact's ability to determine the truthfulness or reliability of

the prior statement. 492 F.2d at 454. Concluding that a jury

would be able to make such @ determination on the facts and

circumstances presented, the court found no violation of the

Confrontation Clause. id. That is precisely the approach

adopted by the Ninth Circuit here.

Similarly, in United States v. Insang, the Second Circuit

found no violation of the Confrontation Clause by admission of

prior inconsistent grand jury testimony of a witness whose

of recollection at trial was motivated by

lack

"a desire ‘not to hurt

anyone.'" 423 F.2d at 1170. The feigned lack of memory did not

make the witness unavailable for cross~examination since, under

the facts presented, it was not clear that “cross-examination

would have been fruitless." id. at 1168. Moreover, even if the

witness were unavailable, the circumstances of this obviously

feigned loss of memory corroborated the truthfulness of the prior

out-of-court statements. ig. at 1170. Using similar principles,

case concluded that, under the

immediate facts cross-examination

the Ninth Circuit in this

was fruitless in that it would

not assist the trier of fact in assessing the truthfulness or

reliability of the out-of-court statement.

The primary distinction between the decision of the

Appeals here and the decisions of the courts

is in the result.

Court of

in Payne and Insane

That distinction is quite understandable,

however, given the facts of this case which « quite

Gistinguishable from those in both Payne and insana.

results based upon Gifferent facts

certworthy case.

Different

do not, however, create a

So long as the courts adopt and apply the same

legal principles there is no conflict. And Clearly there is no

such conflict here.

rently

ing cite of ten other cases, nine of which are appa

strin

t states,

cases, the governmen

In introducing these

Appeals here.

d that an

th cases as well, the courts of appeals have hel

"In other

itness does

rtion of partial or complete loss of memory by aw

asse

ong as the

t result in a Confrontation Clause violation, as long

to determine

does not completely deprive the jury of its ability

ment."

the veracity of the declarant's out-of-court state

with the exception of the gratuitous modifier,

Petition at 15.

ision is

h a line of cases conflicts with the immediate dec

guc

uit

difficult to ascertain. In this case, the Ninth Circ

the

ized its holding in a fashion strikingly similar to

summar

above quotation from the government's brief:

- ination

ot be subjected to cross-exam

wet on ype ey a a satisfactory ne E -

al. mg he truth of his out-of-court en ae

ae 2 * eghowing of particularized guaran fo

pat oem e Mw " of the out-of-court yg w Be rng

pe ne ig me yp ine Pome ts rights under the Confron

cleuse were violated.

fore, that there is no

It would appear, there

Gov. App. at 20a.

f hearsay

inciples at stake with respect to the introduction o

in a criminal trial.?+

dad that

s 15-16 of its Petition, the relevant court conclude

on page -

Pp P ©

such

oted above in the text, indicates that there is no

nts made

admissibility of prior inconsistent/inculpatory stateme

In sum, the government's allegations of a conflict are

plainly specious. The Court of Appeals decision is consistent

with controlling decisions of this Court and with decisions of

other circuits. The guiding principle is whether the out-of-

court statement is trustworthy or reliable. The only literal

conflict is with the Third Circuit's 1977 decision in Cyyler,

gupra. The approach adopted in Cuyler, however, was clearly

rejected in 1980 by this Court in Qhio v. Roberts, gupre. There

is, therefore, no conflict within the meaning of Rule 19 of the

rules of this Court.

c. Federal Rule of Evidence 803(5).

Having failed to establish a conflict, the government argues

that the Court of Appeals decision in this case “would have

serious adverse implications for... - the past recollection

recorded exception to the hearsay rule (Fed. R. Evid. g03(5))."

Petition at 18. This contention is absurd. It is based upon an

overly generalized and fundamentally incorrect description of the

by persons friendly to or familiar with the accused-~-a

circumstance that supports rather than undermines the reliability

of the prior statement. Such cases have very little factual

similarity to the problem presented by the out-of-court

identification at issue here. Thus, the difference in results is

not surprising. Moreover, the Court of Appeals here recognized

and discussed the distinction between the immediate case and

those cases involving prior inconsistent statements and feigned

losses of memory, Gov.App. at 16a-178 n.10, thus carefully

limiting the scope of its own ruling and avoiding even the

appearance of a conflict with those decisions.

Ninth Circuit decision. Jd. at 19. Moreover, it reflects a

basic misunderstanding of Rule 803(5) as well as this Court's

decision in Ohio v. Roberts, gupra.

Rule 803(5) provides:

The following are not excluded by the hearsay rule, even

though the declarant is available as a witness:

(5) Recorded recollection. A memorandum or record

concerning a matter about which a witness once had knowledge

but now has insufficient recollection to enable him to

testify fully and accurately, ghown to have been made or

adopted by the witness when the matter was fresh in his

memory and to reflect that knowledge correctly.

Fed. Rule of Evidence 803(5) (emphasis supplied). As the

underscored portion of the rule indicates, Rule 803(5) is

designed to protect precisely those concerns that animated the

Court of Appeals decision in this case: the truthfulness or

reliability of the out of court statements. How such consistency

of purpose creates a tension between the decision below and Rule

803(5) is simply not explained.

The government does worry that evidence submitted under Rule

803(5) may have to be subjected to a case-by-case Confrontation

Clause analysis. Petition at 19. This case, however, has no

bearing on that question. In fact, to allay the government's

concerns, it may well be that Rule 803(5)'s past recollection

recorded exclusion--especially as written--is one of those

“firmly rooted" hearsay exclusions for which constitutional

reliability can be inferred in all cases. See Qhio v. Roberts,

Supra, 448 U.S. at 66. If that is not the case, then Qhio vy.

Roberts would require a case-by-case determination "of

particularized guarantees of trustworthiness" before admission

against an accused would be constitutional. Jd. However,

whichever of these two courses is the appropriate one is an issue

not presented or in any manner implicated by the decision of the

Court of Appeale in this case.

2. The decision below is fully consistent with this Court's

opinion in Delaware v, Fensterer.

In Delaware v. Fensterer, 106 S.Ct. 292 (1985), the

defendant claimed a violation of the Confrontation Clause based

on in-court statements of an expert witness who could not recall

the precise reason for having arrived at the conclusions stated.

Preliminary to its holding, the Court observed, "This Court's

Confrontation Clause cases fall into two broad categories: cases

involving the admission of out-of-court statements and cases

involving restrictions imposed by law or by the trial court on

the scope of cross-examination." Jd. at 294. This case, of

course, falls directly into the first category. It involves the

introduction of out-of-court statements against an accused in a

criminal trial. According to the Fensterer Court, under such

circumstances the controling principles are found in Ohio v.

Roberts, 448 U.S. 56 (1980), Dutton v. Evans, 400 U.S. 74 (1970)

and California v. Green, 399 U.S. 149 (1970). Fensterer, gupra,

106 S.Ct. at 294. However, the Fensterer Court noted that the

situation before it fell into neither category and that, as a

consequence of this, decisions involving out-of-court statements

had no bearing on the resolution of the issue presented to it.

Id. at 294-295. The Court rejected the defendant's clain.

Despite the clear distinctions drawn in Fensterer, the

government now argues that the specific result of Fensterer

should control the disposition of this case. Petition at 11. In

so doing, the government contends that under the Confrontation

Clause no distinction can be drawn between cases involving in-

court testimony and cases involving the introduction of out-of-

court statemerts. Yet, quite clearly, Fensterer is premised on

precisely the opposite conclusion. 106 S.Ct. at 294-295.

Indeed, the distinction is central to the Fensterer opinion.

Accordingly, as the Court of Appeals recognized, this Court's

specific holding in Fensterer is not relevant to the immediate

case. §ee Gov.App. at l2a-l3a n.7.

The government is correct when it asserts that in California

v. Green, supra, this Court raised but did not resolve the

constitutional significance of a witness' lapse of memory with

respect to the admissibility of a prior inconsistent statement.

399 U.S. at 168. However, it is equally clear that subsequent

decisions in Qhio v, Roberts, gupra, and Dutton v, Evans, s@upre,

have provided lower courts with the means to assess such

questions on a case-by-case basis. As stated earlier, that

admissibility turns on the trier of fact's ability to assess the

truthfulness or reliability of the out-of-court statement.

Importantly, whether a trier of fact can do so with respect to

any particular out-of-court statement will depend on the facts

and circumstances surrounding that statement. This Court

recognized that reality in Roberts and Evans and adopted the

current approach only after carefully considering various

alternatives including the one the government now endorses.

Compare Roberts, 448 U.S. at 65-68 & n.9 and gupra, pages 13-14

with Petition at 16.

If Fensterer has any relevance to this proceeding, it is in

its unequivocal reaffirmation of Ohio v. Roberts, supra, and

Dutton vy. Evans, supra, as applied to cases involving out-of-

court statements. 106 §.Ct. at 294. And, of course, those

opinions did provide the framework for the Court of Appeals

decision here. It is interesting that the government's only

reference to either Roberts or Evans appears in a footnote.

Petition at 13-14 n.4. Indeed, it would appear that the

underlying theme of the government's Petition is have those

decisions overruled or at least ignored. The government is,

however, apparently unwilling to state its agenda so boldly.

3. The decision below, with respect to Federal Rule of Evidence

801(d)(1)(C), was correctly decided and is not in conflict with

any circuit court decision.

Federal Rule of Evidence 601(d)(1)(C) provides in pertinent

part: “A statement is not hearsay if... the declarant

testifies at the trial or hearing and is subject to cross-

examination concerning the statement and the statement is...

one of identification of a person made after perceiving hin.”

The Court of Appeals held that, "(t)he cross-examination

requirement of Rule 801(4)(1)(C) is intended to permit the

opposing party to explore the trustworthiness of the extra-

judicial statement of identification." Gov.App. at 10a. To this

extent 8601(d)(1)(C) was a codification of the Confrontation

Clause as interpreted in Ohio v. Roberts, gupra, and Dutton v.

Evans, supra. Indeed, in concluding that 801(d)(1)(C) was not

satisfied by the facts and circumstances of this case, the Court

of Appeals relied upon its application of the Roberts/Evans

principles. Gov.App. at lla. Accord 4 Weinstein and Berger,

Peinstein's Evidence at 801-98 to 801-99, 801-131 to 801-132

(1982). In light of the Confrontation Clause, the Ninth

Circuit's decision does no more than ensure consistency between

the Rule 601(d)(1)(C) and the Constitution.

In any event, no other court has directly confronted the

801(4)(1)(C) issue decided by the Ninth Circuit in this case and,

considering the Court of Appeals' holding with respect to the

Confrontation Clause, its interpretation of Rule 801(d)(1)(C) is

at best dicta. The government, however, asks this Court to

review that aspect of the decision, claiming that it violates

congressional intent and that it is in conflict with other

circuit court decisions. Both contentions are false.

The first is based on a very narrow reading of the

legislative history behind the Federal Rules of Evidence. The

quotes upon which the government relies indicate only that

801(4d)(1)(C) was designed to remedy situations in which a

“witness can no longer recall the identity of the person he saw

commit the crime.” Petition at 21 (citing H.R. Rep. 94-355, 94th

Cong., lst Sess. 2-3 (1975)). Nothing the government relies

upon, however, indicates 6 congressional desire to permit

introduction of out-of-court identifications whenever «@ Geclararnt

hes a memory lapse regardless of the impact on the truth-seeking

process. And that is the precise question to which the Court of

Appeals addressed itself.

_ Moreover, presumably the language of the rule isa

reflection of congressional intent. That language is clearly

more solicitous of an accused's rights than the government would

have it. Thus, if a witness, at the time of trial, can no longer

identify the accused, 801(d)(1)(C) would permit introduction of

an earlier out-of-court identification so long as the declarant

wae “subject to cross-examination concerning the statement." The

Court of Appeals correctly concluded that this latter limitation

on admissibility was designed to create an opportunity for

effective cross-examination, i.e., a cross-examination that would

permit an assessment of the the trustworthiness or reliability of

the out-of-court statement. That construction is fully

consistent with the congressional intent to expand the

availability of out-of-court identifications in a manner that

comports with the truth-seeking process of the adversary systen.

It is also, unlike the government's construction of Rule

801(d)(1))(C), consistent with the mandates of the Confrontation

Clause. -

There are no decisions in conflict with the Court of Appeals

interpretation of Rule 801(d)(1)(C). Not one of the three cases

described by the government as in conflict addressed the issue

decided by the Ninth Circuit here. Petition at 21. In each, the

declarant was available for cross-examination with respect to the

underlying basis for the out-of-court statement. United States

vy. O'Malley, 796 F.2d 691, 899 (7th Cir. 1986); United States v.

Ingram, 600 F.2¢ 260, 261 n.* (10th Cir. 1979); United States v.

Lewis, 565 F.2¢ 1248, 1251-52 (2d Cir. 1977). Q'Malley involved

@ straeigtforward application of Rule 801(d)(1)(C) to a situation

in which the declarant admitted making the out-of-court

identification, but at trial denied that the defendant was

involved in the crime. In Ingram, the rule is cited ina

preliminary descriptive footnote having nothing to do with any

issue raised by the defendant. The description of the rule in

the footnote is quite general and fully consistent with the Court

of Appeals decision here. Finally, the primary issue in Lewis

was whether Rule 801(d)(1)(C) applied to out-of-court

photographic identifications. There is nothing in Lewis to

suggest that the the court there considered anything akin to the

issue decided by the Ninth Circuit here. In short, there is no

conflict even under the most generous interpretation of that

ters.

ts a

PROOF OF SERVICE

STATE OF CALIFORNIA )

)

COUNTY OF LOS ANGELES )

I am a citizen of the United States and a resident of the county

aforesaid; I am over the age of eighteen years and not a party to

the within action; by business address is:

Leyola Law School

1441 West Olympic Blvd.

Los Angeles, CA 90015

On January 7, 1987 I served three copies of the RESPONSE TO

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT on the interested parties in said

action, by placing true copies thereof enclosed in a sealed

envelope with postage thereon full prepaid, in the United States

mail at Los Angeles, California, addressed as follows:

Solicitor General Charlies Fried

Department of Justice

Washington, D.C. 20530

I declare under penalty of perjury that the foregoing is true and

correct. ——

Executed on January 7, 1987 .

esther L. Ma n

REPLY BRIEF

| Supreme Court, .5.

>) FIL eD

No, 86-877 JAN 97 1987

sIOL, JR.

SLERK

OCTOBER TERM, 1986

UNITED STATES OF AMERICA, PETITIONER

JAMES JOSEPH OWENS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY MEMORANDUM FOR THE UNITED STATES

CHARLES FRIED

Solicitor General

Depariment of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

California v. Green, 399 U.S. 149 (1970) ............. 3, 4, 5, 7

Delaware v. Fensterer, No. 85-214 (Nov. 4, 1985) ..... 4, 5, 6,7

Dutton v. Evans, 400 U.S. 74 (1970) ..... 2... oo oe 2,3,4,5

Ohio v. Roberts, 448 U.S. 56 (1980) ....... 2. 6 one 2,3,4

People v. Pepper, 193 Colo. 505, 568 P.2d 446 (1977) .... 3

Robinson v. State, 102 Wis. 2d 343, 306 N.W.2d 668

Dit teidenee sbi eetdenehh evebennééeseees 3

United States v. Bailey, 581 F.2d 341 (3d Cir. 1978) ...... 3

United States v. DiCaro, 772 F.2d 1314 (7th Cir. 1985),

cert. denied, No. 85-1007 (Mar. 24, 1986) ............ " 4-5

United States ex rel. Thomas v. Cuyler, 548 F.2d 460

Tt T6206 d dds eens ea aehnhsees 606604 3,4

Vogel v. Percy, 691 F.2d 843 (7th Cir. 1982) ............ 5

Constitution and rules:

U.S. Const.:

DT hol 6 hpeldd nd ieee eaeebensscedseweda l

Amend. VI (Confrontation Clause) ........ 1, 2, 3, 4, $, 7

Fed. R. Evid.:

EA tan a 7-8

tee eee ie be ee 7

(1)

In the Supreme Court of the Gnited States

OCTOBER TERM, 1986

No. 86-877

UNITED STATES OF AMERICA, PETITIONER

Vv.

JAMES JOSEPH OWENS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY MEMORANDUM FOR THE UNITED STATES

1. The court of appeals held that respondent’s rights

under the Confrontation Clause were violated by the in-

court testimony of the assault victim, John Foster.

Although Foster testified at length at trial, and although

respondent’s cross-examination of Foster was not

restricted by the trial court, the court of appeals found

that Foster’s partial memory loss prevented him from

being adequately cross-examined. As we explained in our

petition (at 10-17), the court’s ruling raises issues of great

practical importance that have been identified but never

resolved by this Court. In addition, the Ninth Circuit’s

opinion creates a conflict among the circuits concerning

the constitutional significance, if any, of a witness’s

memory loss. Our submission is that a witness’s memory

loss has no Sixth Amendment consequence and that his

physical presence at trial satisfies the Confrontation

Clause as long as (i) he does not assert his Fifth Amend-

ment privilege or otherwise refuse to testify, (ii) he is

capable of understanding the proceedings, and (iii) the

scope of cross-examination is not improperly restricted by

the trial court.

(1)

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