U.S. Supreme Court United States v. Owens, 484
U.S. 554 (1988) United States v.
Owens No. 86-877 Argued November 4,
1987 Decided February 23,
1988 484
U.S. 554 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus As a result of injuries suffered in an attack at a federal
prison, correctional counselor John Foster's memory was severely
impaired. Nevertheless, in an interview with the investigating FBI
agent, Foster described the attack, named respondent as his
attacker, and identified respondent from photographs. At
respondent's Federal District Court trial for assault with intent
to commit murder, Foster testified, inter alia, that he
clearly remembered so identifying respondent. On cross-examination,
however, he admitted that he could not remember seeing his
assailant, seeing any of his numerous hospital visitors except the
FBI agent, or whether any visitor had suggested that respondent was
the assailant. Defense counsel unsuccessfully sought to refresh his
recollection with hospital records, including one indicating that
he had attributed the assault to someone other than respondent.
Respondent was convicted, but the Court of Appeals reversed,
upholding challenges based on the Confrontation Clause of the Sixth
Amendment and Rule 802 of the Federal Rules of Evidence, which
generally excludes hearsay. Held: Neither the Confrontation Clause nor Rule 802 is
violated by admission of a prior, out-of court identification
statement of a witness who is unable, because of memory loss, to
explain the basis for the identification. Pp. 484 U. S.
557 -564.

															(a) The Confrontation Clause, which guarantees only an
opportunity for effective cross-examination, not successful
cross-examination, is satisfied where, as here, the defendant has a
full and fair opportunity to bring out the witness' bad memory and
other facts tending to discredit his testimony. Cf. Delaware v.
Fensterer, 474 U. S. 15 . This
analysis is not altered by the fact that the testimony here
involved an out-of-court identification that would traditionally be
categorized as hearsay, since the Confrontation Clause's
requirements are satisfied when a hearsay declarant is present at
trial, takes an oath, is subject to unrestricted cross-examination,
and the jury has an opportunity to observe his demeanor. Pp. 484 U. S.
557 -561.

															(b) The Court of Appeals erred in holding that Rule 801(d)(1)(C)
-- under which a prior identification statement is not hearsay if
the declarant is "subject to cross-examination concerning the
statement" -- did not apply to Foster's identification statement
because of his memory loss. Page 484 U. S. 555 A more natural reading of the Rule is that a witness is "subject
to cross-examination" when, as here, he is placed on the stand,
under oath, and responds willingly to questions. Meaningful
cross-examination within the Rule's intent is not destroyed by the
witness' assertion of memory loss, which is often the very result
sought to be produced by cross-examination, and which can be
effective in destroying the force of the prior statement. Moreover,
the Rule does not, on its face, require more than that the
cross-examination "concer[n] the statement." The Advisory
Committee's notes on the Rule, the Rule's legislative history, and
the language of Rule 804(a)(3) -- which, in defining
"unavailability as a witness" to include memory-loss situations,
demonstrates Congress' awareness of the recurrent evidentiary
problem of witness forgetfulness -- all support this reading of the
Rule. Respondent's contention that this reading is impermissible
because it creates an internal inconsistency in the Rules -- i.e., the forgetful witness who is deemed "subject to
cross-examination" under Rule 801(d)(1)(C) is simultaneously deemed
"unavailable" under Rule 804(a)(3) -- is semantic, rather than
substantive. Because the characterizations in the two Rules were
made for entirely different purposes, there is no requirement or
expectation that they should coincide. Pp. 484 U. S.
561 -664.

															789 F.2d 750, reversed and remanded.

															SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS, and O'CONNOR, JJ.,
joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL,
J., joined, post, p. 484 U. S. 564 .
KENNEDY, J., took no part in the consideration or decision of the
case.

															JUSTICE SCALIA delivered the opinion of the Court.

															This case requires us to determine whether either the
Confrontation Clause of the Sixth Amendment or Rule 802 of the
Federal Rules of Evidence bars testimony concerning a prior,
out-of-court identification when the identifying witness is Page 484 U. S. 556 unable, because of memory loss, to explain the basis for the
identification. I On April 12, 1982, John Foster, a correctional counselor at the
federal prison in Lompoc, California, was attacked and brutally
beaten with a metal pipe. His skull was fractured, and he remained
hospitalized for almost a month. As a result of his injuries,
Foster's memory was severely impaired. When Thomas Mansfield, an
FBI agent investigating the assault, first attempted to interview
Foster, on April 19, he found Foster lethargic and unable to
remember his attacker's name. On May 5, Mansfield again spoke to
Foster, who was much improved and able to describe the attack.
Foster named respondent as his attacker, and identified respondent
from an array of photographs.

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

															On appeal, the United States Court of Appeals for the Ninth
Circuit considered challenges based on the Confrontation Page 484 U. S. 557 Clause and Rule 802 of the Federal Rules of Evidence. [ Footnote 1 ] By divided vote, it upheld
both challenges (though finding the Rule 802 violation harmless
error), and reversed the judgment of the District Court. 789 F.2d
750 (1986). We granted certiorari, 479 U.S. 1084 (1987), to resolve
the conflict with other Circuits on the significance of a hearsay
declarant's memory loss both with respect to the Confrontation
Clause, see, e.g., United States ex rel. Thomas v. Cuyler, 548 F.2d 460, 462-463 (CA3 1977), and with respect to Rule 802, see, e.g., United States v. Lewis, 565 F.2d 1248, 1252
(CA2 1977), cert. denied, 435 U.S. 973 (1978). II The Confrontation Clause of the Sixth Amendment gives the
accused the right "to be confronted with the witnesses against
him." This has long been read as securing an adequate opportunity
to cross-examine adverse witnesses. See, e.g., Mattox v. United
States, 156 U. S. 237 , 156 U. S.
242 -243 (1895); Douglas v. Alabama, 380 U. S. 415 , 380 U. S. 418 (1965). This Court has never held that a Confrontation Clause
violation can be founded upon a witness' loss of memory, but in two
cases has expressly left that possibility open.

															In California v. Green, 399 U.
S. 149 , 399 U. S.
157 -164 (1970), we found no constitutional violation in
the admission of testimony that had been given at a preliminary
hearing, relying on (as one of two independent grounds) the
proposition that the opportunity to cross-examine the witness at
trial satisfied the Sixth Amendment's requirements. We declined,
however, to decide the admissibility of the same witness'
out-of-court statement to a police officer concerning events that
at trial he was unable to recall. In remanding on this point,
we Page 484 U. S. 558 noted that the state court had not considered, and the parties
had not briefed, the possibility that the witness' memory loss so
affected the petitioner's right to cross-examine as to violate the
Confrontation Clause. [ Footnote
2 ] Id. at 399 U. S.
168 -169. Justice Harlan, in a scholarly concurrence,
stated that he would have reached the issue of the out-of-court
statement, and would have held that a witness' inability to

															"recall either the underlying events that are the subject of an
extrajudicial statement or previous testimony or recollect the
circumstances under which the statement was given, does not have
Sixth Amendment consequence." Id. at 399 U. S.
188 .

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

															"The Confrontation Clause includes no guarantee that every
witness called by the prosecution will refrain from giving
testimony that is marred by forgetfulness, confusion, or evasion.
To the contrary, the Confrontation Clause is generally satisfied
when the defense is given a full and fair opportunity to probe and
expose these infirmities through cross-examination, thereby calling
to the attention of the factfinder the reasons for giving scant
weight to the witness' testimony." Id. at 474 U. S. 21 -22.
Our opinion noted that a defendant seeking to discredit a forgetful
expert witness is not without ammunition, since the jury may be
persuaded that "his opinion is as unreliable as his memory." Id. at 474 U. S. 19 . We
distinguished, however, the unresolved issue in Green on the basis
that that involved the introduction of an out-of court statement.
474 U.S. at 474 U. S.
18 . Page 484 U. S. 559 JUSTICE STEVENS, concurring in the judgment, suggested that the
question at hand was in fact quite close to the question left open
in Green. 474 U.S. at 474 U. S.
23 -24.

															Here that question is squarely presented, and we agree with the
answer suggested 18 years ago by Justice Harlan.

															"[T]he Confrontation Clause guarantees only 'an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.'" Kentucky v. Stincer, 482 U. S. 730 , 482 U. S. 739 (1987), quoting Fensterer, supra, at 474 U. S. 20 (emphasis added); Delaware v. Van Arsdall, 475 U.
S. 673 , 475 U. S. 679 (1986); Ohio v. Roberts, 448 U. S. 56 , 448 U. S. 73 , n.
12 (1980). As Fensterer demonstrates, that opportunity is
not denied when a witness testifies as to his current belief, but
is unable to recollect the reason for that belief. It is sufficient
that the defendant has the opportunity to bring out such matters as
the witness' bias, his lack of care and attentiveness, his poor
eyesight, and even (what is often a prime objective of
cross-examination, see 3A J. Wigmore, Evidence § 995, pp.
931-932 (J. Chadbourn rev.1970)) the very fact that he has a bad
memory. If the ability to inquire into these matters suffices to
establish the constitutionally requisite opportunity for
cross-examination when a witness testifies as to his current
belief, the basis for which he cannot recall, we see no reason why
it should not suffice when the witness' past belief is introduced
and he is unable to recollect the reason for that past belief. In
both cases, the foundation for the belief (current or past) cannot
effectively be elicited, but other means of impugning the belief
are available. Indeed, if there is any difference in persuasive
impact between the statement "I believe this to be the man who
assaulted me, but can't remember why" and the statement "I don't
know whether this is the man who assaulted me, but I told the
police I believed so earlier," the former would seem, if anything,
more damaging, and hence give rise to a greater need for
memory-testing, if that is to be considered essential to an
opportunity for effective cross-examination. Page 484 U. S. 560 We conclude with respect to this latter example, as we did in Fensterer with respect to the former, that it is not. The
weapons available to impugn the witness' statement when memory loss
is asserted will of course not always achieve success, but
successful cross-examination is not the constitutional guarantee.
They are, however, realistic weapons, as is demonstrated by defense
counsel's summation in this very case, which emphasized Foster's
memory loss and argued that his identification of respondent was
the result of the suggestions of people who visited him in the
hospital.

															Our constitutional analysis is not altered by the fact that the
testimony here involved an out-of-court identification that would
traditionally be categorized as hearsay. See Advisory
Committee's Notes on Fed.Rule Evid. 801(d)(1)(C), 28 U.S.C.App. p.
717. This Court has recognized a partial (and somewhat
indeterminate) overlap between the requirements of the traditional
hearsay rule and the Confrontation Clause. See Green, 399
U.S. at 399 U. S.
155 -156; id. at 399 U. S. 173 (Harlan, J., concurring). The dangers associated with hearsay
inspired the Court of Appeals in the present case to believe that
the Constitution required the testimony to be examined for "indicia
of reliability," Dutton v. Evans, 400 U. S.
74 , 400 U. S. 89 (1970), or "particularized guarantees of trustworthiness," Roberts, supra, at 448 U. S. 66 . We
do not think such an inquiry is called for when a hearsay declarant
is present at trial and subject to unrestricted cross-examination.
In that situation, as the Court recognized in Green, the
traditional protections of the oath, cross-examination, and
opportunity for the jury to observe the witness' demeanor satisfy
the constitutional requirements. 399 U.S. at 399 U. S.
158 -161. We do not think that a constitutional line
drawn by the Confrontation Clause falls between a forgetful
witness' live testimony that he once believed this defendant to be
the perpetrator of the crime, and the introduction of the witness'
earlier statement to that effect. Page 484 U. S. 561 Respondent has argued that this Court's jurisprudence concerning
suggestive identification procedures shows the special dangers of
identification testimony, and the special importance of
cross-examination when such hearsay is proffered. See, e.g.,
Manson v. Brathwaite, 432 U. S. 98 (1977); Neil v. Biggers, 409 U. S. 188 (1972). Respondent has not, however, argued that the identification
procedure used here was in any way suggestive. There does not
appear in our opinions, and we decline to adopt today, the
principle that, because of the mere possibility of suggestive
procedures, out-of-court statements of identification are
inherently less reliable than other out-of-court statements.

															Respondent urges as an alternative basis for affirmance a
violation of Federal Rule of Evidence 802, which generally excludes
hearsay. Rule 801(d)(1)(C) defines as not hearsay a prior statement
"of identification of a person made after perceiving the person,"
if the declarant "testifies at the trial or hearing and is subject
to cross-examination concerning the statement." The Court of
Appeals found that Foster's identification statement did not come
within this exclusion, because his memory loss prevented his being
"subject to cross-examination concerning the statement." Although
the Court of Appeals concluded that the violation of the Rules of
Evidence was harmless (applying for purposes of that determination
a "more-probable-than-not" standard, rather than the
"beyond-a-reasonable-doubt" standard applicable to the
Confrontation Clause violation, see Delaware v. Van
Arsdall, 475 U.S. at 475 U. S.
684 ), respondent argues to the contrary.

															It seems to us that the more natural reading of "subject to
cross-examination concerning the statement" includes what was
available here. Ordinarily a witness is regarded as "subject to
cross-examination" when he is placed on the stand, under oath, and
responds willingly to questions. Just as with the constitutional
prohibition, limitations on the scope Page 484 U. S. 562 of examination by the trial court or assertions of privilege by
the witness may undermine the process to such a degree that
meaningful cross-examination within the intent of the Rule no
longer exists. But that effect is not produced by the witness'
assertion of memory loss -- which, as discussed earlier, is often
the very result sought to be produced by cross-examination, and can
be effective in destroying the force of the prior statement. Rule
801(d)(1)(C), which specifies that the cross-examination need only
"concer[n] the statement," does not, on its face, require more.

															This reading seems even more compelling when the Rule is
compared with Rule 804(a)(3), which defines "[u]navailability as a
witness" to include situations in which a declarant "testifies to a
lack of memory of the subject matter of the declarant's statement."
Congress plainly was aware of the recurrent evidentiary problem at
issue here -- witness forgetfulness of an underlying event -- but
chose not to make it an exception to Rule 801(d)(1)(C).

															The reasons for that choice are apparent from the Advisory
Committee's Notes on Rule 801 and its legislative history. The
premise for Rule 801(d)(1)(C) was that, given adequate safeguards
against suggestiveness, out-of-court identifications were generally
preferable to courtroom identifications. Advisory Committee's Notes
on Rule 801, 28 U.S.C.App. p. 717. Thus, despite the traditional
view that such statements were hearsay, the Advisory Committee
believed that their use was to be fostered, rather than
discouraged. Similarly, the House Report on the Rule noted that,
since, "[a]s time goes by, a witness' memory will fade and his
identification will become less reliable," minimizing the barriers
to admission of more contemporaneous identification is fairer to
defendants and prevents "cases falling through because the witness
can no longer recall the identity of the person he saw commit the
crime." H.R.Rep. No. 94-355, p. 3 (1975). See also S.Rep.
No. 94-199, p. 2 (1975). To judge from the House and Senate
Reports, Rule 801(d)(1)(C) was in part directed Page 484 U. S. 563 to the very problem here at issue: a memory loss that makes it
impossible for the witness to provide an in court identification or
testify about details of the events underlying an earlier
identification.

															Respondent argues that this reading is impermissible, because it
creates an internal inconsistency in the Rules, since the forgetful
witness who is deemed "subject to cross-examination" under
801(d)(1)(C) is simultaneously deemed "unavailable" under
804(a)(3). This is the position espoused by a prominent commentary
on the Rules, see 4 J. Weinstein & M. Berger,
Weinstein's Evidence 801-120 to 801-121, 801-178 (1987). It seems
to us, however, that this is not a substantive inconsistency, but
only a semantic oddity resulting from the fact that Rule 804(a)
has, for convenience of reference in Rule 804(b), chosen to
describe the circumstances necessary in order to admit certain
categories of hearsay testimony under the rubric "Unavailability as
a witness." These circumstances include not only absence from the
hearing, but also claims of privilege, refusals to obey a court's
order to testify, and inability to testify based on physical or
mental illness or memory loss. Had the rubric instead been
"unavailability as a witness, memory loss, and other special
circumstances," there would be no apparent inconsistency with Rule
801, which is a definition section excluding certain statements
entirely from the category of "hearsay." The semantic inconsistency
exists not only with respect to Rule 801(d)(1)(C), but also with
respect to the other subparagraphs of Rule 801(d)(1). It would seem
strange, for example, to assert that a witness can avoid
introduction of testimony from a prior proceeding that is
inconsistent with his trial testimony, see Rule
801(d)(1)(A), by simply asserting lack of memory of the facts to
which the prior testimony related. See United States v.
Murphy, 696 F.2d 282, 283-284 (CA4 1982), cert.
denied, 461 U.S. 945 (1983). But that situation, like this
one, presents the verbal curiosity that the witness is "subject to
cross-examination" under Rule 801 Page 484 U. S. 564 while at the same time "unavailable" under Rule 804(a)(3). Quite
obviously, the two characterizations are made for two entirely
different purposes, and there is no requirement or expectation that
they should coincide.

															For the reasons stated, we hold that neither the Confrontation
Clause nor Federal Rule of Evidence 802 is violated by admission of
an identification statement of a witness who is unable, because of
a memory loss, to testify concerning the basis for the
identification. The decision of the Court of Appeals is reversed,
and the case is remanded for proceedings consistent with this
opinion. So ordered. JUSTICE KENNEDY took no part in the consideration or decision of
this case.

															[ Footnote 1 ]

															This case has been argued, both here and below, as though
Federal Rule of Evidence 801(d)(1)(C) were the basis of the
challenge. That is substantially, but not technically, correct. If
respondent's arguments are accepted, it is Rule 802 that would
render the out-of court statement inadmissible as hearsay; but, as
explained in 484 U. S. it
is ultimately Rule 801(d)(1)(C) that determines whether Rule 802 is
applicable.

															[ Footnote 2 ]

															On remand, the California Supreme Court concluded that the
Confrontation Clause was not violated by the out-of-court
statement, because the declarant testified under oath, subject to
cross-examination, and the jury was able to observe his demeanor. People v. Green, 3 Cal. 3d 981 ,
479 P.2d 998, cert. dism'd, 404 U.S. 801 (1971).

															JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.

															In an interview during his month-long hospitalization, in what
was apparently a singular moment of lucid recollection, John Foster
selected respondent James Owens' photograph from an array of
possible suspects and informed FBI Agent Thomas Mansfield that it
was respondent who had attacked him with a metal pipe on the
morning of April 12, 1982. Had Foster subsequently died from his
injuries, there is no doubt that both the Sixth Amendment and the
Federal Rules of Evidence would have barred Mansfield from
repeating Foster's out-of-court identification at trial.
Fortunately, Foster survived the beating; his memory, however, did
not, and, by the time of respondent's trial, he could no longer
recall his assailant or explain why he had previously identified
respondent as such. This profound memory loss, therefore, rendered
Foster no less a conduit for stale and inscrutable evidence than
Mansfield would have been, yet the Court nevertheless concludes
that, because defense counsel was afforded an unrestricted
opportunity to cross-examine him, Page 484 U. S. 565 Foster's unadorned reiteration of his earlier statement did not
deprive respondent of his constitutional right to confront the
witness against him. In my view, the Court today reduces the right
of confrontation to a purely procedural protection, and a markedly
hollow one at that. Because I believe the Sixth Amendment
guarantees criminal defendants the right to engage in
cross-examination sufficient to "affor[d] the trier of fact a
satisfactory basis for evaluating the truth of [a] prior
statement," California v. Green, 399 U.
S. 149 , 399 U. S. 161 (1970), and because respondent clearly was not afforded such an
opportunity here, I dissent. I On April 12, 1982, Foster was brutally assaulted while on duty
as a correctional counselor at the federal prison in Lompoc,
California. His attacker beat him repeatedly about the head and
upper body with a metal pipe, inflicting numerous and permanently
disabling injuries, one of which was a profound loss of short-term
memory. Foster spent nearly a month in the hospital recuperating
from his injuries, much of that time in a state of
semiconsciousness. Although numerous people visited him, including
his wife, who visited daily, Foster remembered none except Agent
Mansfield. While he had no recollection of Mansfield's first visit
on April 19, he testified that his memory of the interview
Mansfield conducted on May 5 was "vivid." App. 28. In particular,
he recalled telling Mansfield:

															"[A]fter I was hit, I 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." Id. at 31.

															Foster testified that, at the time he made these statements, he
was certain that his memory was accurate. In addition, he recalled
choosing respondent's photograph from those Mansfield showed him.
There is no dispute, however, that, by the time of trial, Foster
could no longer remember who had assaulted him or even whether he
had seen his attacker. Page 484 U. S. 566 Nor could he recall whether any of the prison officials or other
persons who visited him in the hospital had ever suggested that
respondent had beaten him. A medical expert who testified on behalf
of the prosecution explained that Foster's inability to remember
most of the details of the assault was attributable to a gradual
and selective memory loss caused by his head injuries. II The principal witness against respondent was not the John Foster
who took the stand in December 1983 -- that witness could recall
virtually nothing of the events of April 12, 1982, and candidly
admitted that he had no idea whether respondent had assaulted him.
Instead, respondent's sole accuser was the John Foster who, on May
5, 1982, identified respondent as his attacker. This John Foster,
however, did not testify at respondent's trial: the profound memory
loss he suffered during the approximately 18 months following his
identification prevented him from affirming, explaining, or
elaborating upon his out-of-court statement just as surely and
completely as his assertion of a testimonial privilege, or his
death, would have. Thus, while the Court asserts that defense
counsel had "realistic weapons" with which to impugn Foster's prior
statement, ante at 484 U. S. 560 ,
it does not and cannot claim that cross-examination could have
elicited any information that would have enabled a jury to evaluate
the trustworthiness or reliability of the identification. Indeed,
although the Court suggests that defense counsel was able to
explore Foster's "lack of care and attentiveness," his "bad
memory," and the possibility that hospital visitors suggested
respondent's name to him, ante at 484 U. S. 559 , 484 U. S. 560 ,
Foster's memory loss precluded any such inquiries: he simply could
not recall whether he had actually seen his assailant or even
whether he had had an opportunity to see him, nor could he remember
any of his visitors, let alone whether any of them had suggested
that respondent had attacked him. Moreover, by the Page 484 U. S. 567 time of trial, Foster was unable to shed any light on the
accuracy of his May, 1982, recollection of the assault; the most he
could state was that, on the day of the interview, he felt certain
that his statements were true. As the court below found,

															"[c]learly, 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 [respondent]."

															789 F.2d 750, 759 (CA9 1986).

															In short, neither Foster nor the prosecution could demonstrate
the basis for Foster's prior identification. Nevertheless, the
Court concludes that the Sixth Amendment presents no obstacle to
the introduction of such an unsubstantiated out-of-court statement,
at least not where the declarant testifies under oath at trial and
is subjected to unrestricted cross-examination. According to the
Court, the Confrontation Clause is simply a procedural trial right
that

															"guarantees only an opportunity for effective
cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish." Ante at 484 U. S. 559 (citations omitted; internal quotation marks omitted; emphasis in
original).

															Although the Court suggests that the result it reaches today
follows naturally from our earlier cases, we have never before held
that the Confrontation Clause protects nothing more than a
defendant's right to question live witnesses, no matter how futile
that questioning might be. On the contrary, as the Court's own
recitation of our prior case law reveals, we have repeatedly
affirmed that the right of confrontation ensures "an opportunity
for effective cross-examination." Delaware v.
Fensterer, 474 U. S. 15 , 474 U. S. 20 (1985) (per curiam) (emphasis added); see also Nelson v.
O'Neil, 402 U. S. 622 , 402 U. S. 629 (1971) (Confrontation Clause does not bar admission of out-of-court
statement where defendant has "the benefit of full and effective cross-examination of [declarant]") (emphasis
added); California v. Green, 399 U.S. Page 484 U. S. 568 at 399 U. S. 159 (introduction of out-of-court statement does not violate
Confrontation Clause "as long as the defendant is assured of full
and effective cross-examination at the time of trial") (emphasis
added). While we have rejected the notion that effectiveness should
be measured in terms of a defendant's ultimate success, we have
never, until today, equated effectiveness with the mere opportunity
to pose questions. Rather, consistent with the Confrontation
Clause's mission of "advanc[ing] a practical concern for the
accuracy of the truth-determining process in criminal trials," Dutton v. Evans, 400 U. S. 74 , 400 U. S. 89 (1970), we have suggested that the touchstone of effectiveness is
whether the cross-examination affords " the trier of fact . . .
a satisfactory basis for evaluating the truth of the prior
statement.'" Ibid. (quoting California v. Green,
supra, at 399 U. S.
161 ). See also Ohio v. Roberts, 448 U. S.
56 , 448 U. S. 73 (1980) (introduction of prior testimony where the declarant was
unavailable at trial did not violate Confrontation Clause where
previous cross-examination of declarant "afforded the trier of fact
a satisfactory basis for evaluating the truth of the prior
statement" (citation omitted; internal quotation marks omitted));
[ Footnote 2/1 ] Mancusi v.
Stubbs, 408 U. S. 204 , 408 U. S. 216 (1972) Page 484 U. S. 569 (same). Where no opportunity for such cross-examination exists,
we have recognized that the Sixth Amendment permits the
introduction of out-of-court statements only when they bear
sufficient independent "indicia of reliability." Dutton v.
Evans, supra, at 400 U. S.
89 .

															In dispensing with these substantive constitutional requirements
today, the Court relies almost exclusively on our decision in Delaware v. Fensterer, supra, a case that did not involve
the introduction of prior statements. Fensterer concerned
an expert witness' inability to remember which of three possible
scientific theories he had used in formulating his opinion.
Although Fensterer contended that the witness' forgetfulness made
it impossible to impeach the scientific validity of his
conclusions, we noted that "an expert who cannot recall the basis
for his opinion invites the jury to find that his opinion is as
reliable as his memory." Id. at 474 U. S. 19 .
While the witness' endorsement of a given scientific theory might
have maximized the effectiveness of cross-examination, the
Confrontation Clause guarantees only that level of effectiveness
necessary to afford the factfinder a satisfactory basis for
assessing the validity of the evidence offered. Thus, because the
expert's inability to remember the basis for his opinion was
self-impeaching, the constitutional guarantee had clearly been
satisfied. Fensterer, therefore, worked no change in our
Confrontation Clause jurisprudence, yet the Court purports to
discern in it a principle under which all live testimony as to a
witness' past belief is constitutionally admissible, provided the
defendant Page 484 U. S. 570 is afforded an opportunity to question the witness. From this
the Court derives the corollary that prior statements as to past
belief are equally admissible, again given the requisite
opportunity for questioning the declarant at trial. Accordingly,
the Court asserts, the Confrontation Clause draws no line

															"between a forgetful witness' live testimony that he once
believed this defendant to be the perpetrator of the crime, and the
introduction of the witness' earlier statement to that effect." Ante at 484 U. S. 560 .
The obvious shortcoming in this reasoning, of course, is that Fensterer announced no such blanket rule: while the
expert's memory lapse in that case was self-impeaching, it does not
follow -- and we have therefore never held -- that all
forgetfulness may be so characterized. Certainly in the present
case, Foster's inability in December, 1983, to remember the events
of April, 1982, in no way impugned or otherwise cast doubt upon the
accuracy or trustworthiness of his memory in May, 1982,
particularly in light of the uncontradicted medical testimony
explaining that his forgetfulness was the result of the head
injuries he sustained. Under our prior cases, then, the
constitutional admissibility of Foster's prior statement, and the
testimony of the Court's hypothetical witness who cannot recall the
basis for his past belief, should depend on whether the memory loss
so seriously impedes cross-examination that the factfinder lacks an
adequate basis upon which to assess the truth of the proffered
evidence. Whatever may be said of the Court's hypothetical, it is
clear in the case before us that Foster's near total loss of memory
precluded any meaningful examination or assessment of his
out-of-court statement, and thus should have barred the admission
of that statement.

															To the extent the Court's ruling is motivated by the fear that a
contrary result will open the door to countless Confrontation
Clause challenges to the admission of out-of-court statements, that
fear is groundless. To begin with, cases such as the present one
will be rare indeed. More typically, witnesses asserting a memory
loss will either not suffer (or Page 484 U. S. 571 claim) a total inability to recollect, or will do so under
circumstances that suggest bias or ulterior motive; in either case,
given the threshold of "effectiveness" established by our prior
decisions, the witness' partial memory or self-interest in claiming
a complete memory loss will afford the factfinder an adequate basis
upon which to evaluate the reliability and trustworthiness of the
out-of-court statement. Even in those relatively few cases where no
such basis can be elicited, the prior statement is still admissible
if it bears independent "indicia of reliability." Finally,
assessments of "effectiveness" for Confrontation Clause purposes
are no different than those undertaken by courts in deciding common
evidentiary questions, and thus should not prove unduly burdensome.
[ Footnote 2/2 ] In any event, to the
extent such assessments prove inconvenient or troublesome, those
burdens flow from our commitment to a Constitution that places a
greater value on individual liberty than on efficient judicial
administration. III I agree with the Court that the Confrontation Clause does not
guarantee defendants the right to confront only those witnesses
whose testimony is not marred by forgetfulness, Page 484 U. S. 572 confusion, or evasion, and that the right of confrontation

															"'is generally satisfied when the defense is given a full and
fair opportunity to probe and expose these infirmities through
cross-examination.'" Ante at 484 U. S. 558 (quoting Fensterer, 474 U.S. at 474 U. S. 22 ).
But as we stressed just last Term, this right to cross-examination
"is essentially a functional' right designed to promote
reliability in the truthfinding functions of a criminal trial." Kentucky v. Stincer, 482 U. S. 730 , 482 U. S. 737 (1987). In the present case, respondent Owens was afforded no
opportunity to probe and expose the infirmities of Foster's May 5,
1982, recollections, for here cross-examination, the "greatest
legal engine ever invented for the discovery of truth," California v. Green, 399 U.S. at 399 U. S. 158 ,
stood as helpless as current medical technology before Foster's
profound memory loss. In concluding that respondent's Sixth
Amendment rights were satisfied by Foster's mere presence in the
courtroom, the Court reduces the right of confrontation to a hollow
formalism. Because I believe the Confrontation Clause guarantees
more than the right to ask questions of a live witness, no matter
how dead that witness' memory proves to be, I dissent. [ Footnote 2/1 ]

															In Ohio v. Roberts, the Court indicated that, for
purposes of determining the constitutional admissibility of prior
testimony where the declarant is unavailable at trial, it is
unnecessary to consider whether defense counsel's questioning at
the prior hearing "surmount[ed] some inevitably nebulous threshold
of effectiveness,'" and held that, "in all but . . .
extraordinary cases, no inquiry into `effectiveness' is required."
448 U.S. at 448 U. S. 73 n.
12. In so ruling, however, the Court did not dispense with the
Sixth Amendment's substantive minima of effectiveness, but rather
rejected the claim that prior testimony should be deemed inherently
unreliable where the declarant was cross-examined by an attorney
whose performance is subsequently deemed ineffective in collateral
habeas corpus proceedings. In this context, therefore,
"effectiveness" obviously refers to the attorney's performance, not the impediments to meaningful cross-examination
created by a witness' memory loss. Indeed, the footnote in
question is appended to a sentence once again affirming the need
for affording the factfinder an adequate basis for assessing the
truth of prior statements, and the author of Roberts has
twice since confirmed that the Sixth Amendment guarantees an
opportunity for meaningful cross-examination. See Kentucky v.
Stincer, 482 U. S. 730 , 482 U. S. 739 ,
n. 9 (1987) (BLACKMUN, J.) (a state rule precluding access to
certain information before trial "may hinder [the] defendant's
opportunity for effective cross-examination at trial, and
thus . . . may violate the Confrontation Clause") (emphasis in
original); Pennsylvania v. Ritchie, 480 U. S.
39 , 480 U. S. 63 , n.
1 (1987) (BLACKMUN, J., concurring) ( Fensterer "[did] not
imply that concern about . . . effectiveness [of cross-examination]
has no place in analysis under the Confrontation Clause"). [ Footnote 2/2 ]

															Indeed, in a case such as this one, the inquiry into the
constitutional adequacy of defendant's opportunity for
cross-examination is identical to that required under Federal Rule
of Evidence 804(a)(3), which deems a declarant "unavailable" if, at
trial, he or she "testifies to a lack of memory of the subject
matter of the declarant's [prior] statement" (emphasis added).
The Court today, of course, concludes that, notwithstanding Rule
804(a)'s definition of unavailability, a prior identification is
not hearsay under Rule 801(d)(1)(C), and is therefore admissible,
as long as the declarant is subject to cross-examination concerning
the statement itself, regardless of whether the declarant can
recall the basis for that statement. See ante at 484 U. S.
561 -564. Because I believe such a construction of Rule
801(d)(1)(C) renders it unconstitutional under the Confrontation
Clause, I would require, consistent with Rule 804(a), that the
declarant be subject to cross-examination as to the subject matter
of the prior statement. See 4 J. Weinstein & M.
Berger, Weinstein's Evidence 801-120 to 801-121 (1987) (endorsing
such a construction of Rule 801(d)(1)(C)).

Summary: The U.S. Supreme Court ruled that neither the Confrontation Clause of the Sixth Amendment nor Rule 802 of the Federal Rules of Evidence was violated by admitting a prior out-of-court identification statement made by a witness who could not remember the basis for that identification due to memory loss. The Court held that the Confrontation Clause guarantees an opportunity for effective cross-examination but not successful cross-examination and that meaningful cross-examination is not destroyed by a witness's assertion of memory loss.