484 U. S. 554
February 23, 1988
A prison guard named John Foster was brutally assaulted in an attack which resulted in enormous memory loss. One day at the hospital though, Foster was briefly able to identify a man named Owens as the assailant. At trial, Owens objected to the introduction of this identification under the confrontation clause, and the Rule of Evidence against hearsay. Even though Foster was available for cross-examination, Owens argued that it was useless because he had no real memory of making the identification.
The Court ruled 6-2 that the identification was admissible (Kennedy did not participate). Scalia cited precedents which showed that forgetfulness of a witness had never been considered a confrontation clause violation. And indeed, because cross-examination allowed Owens to show that Foster’s identification was potentially untrustworthy, Owens was able to use his confrontation clause rights to great effect. With respect to the hearsay argument, it was once again basically dispositive that Foster was there for cross-examination. Although the Federal Rules of Evidence were slightly murky on the point, allowing for Foster’s out-of-court statement was, in the end, the most straightforward reading of them.
The two dissenters were Brennan and Marshall (but you already knew that, didn’t you?). Brennan argued that because virtually all of Foster’s memories were gone, he really shouldn’t be considered the same person who had made the out-of-court identification. Because Owens could get nothing out of Foster in court except ‘I don’t remember,’ the cross-examination was basically useless. While the Court had allowed for fading and dimming memories in past cases, Brennan said that Foster’s memory loss was simply a different order of magnitude. Thus, he found a confrontation clause violation.
As is par for me, I find myself agreeing with the inclusionists in a ruling about evidence. Whether the piece of evidence favors the alleged victim or the defendant (see, e.g. Rock), I think a judge or jury should be apprised of all relevant information, provided that they are told when the information could be dubious.