UNITED STATES V. OWENS, 484 U. S. 554 (1988)

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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


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.

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