Confronting Memory Loss

• Publication year: 2020

Confronting Memory Loss

Paul F. Rothstein
Georgetown University Law Center

Ronald J. Coleman
Georgetown Law

CONFRONTING MEMORY LOSS

Paul F. Rothstein^* & Ronald J. Coleman^†

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The Confrontation Clause of the Sixth Amendment grants "the accused" in "all criminal prosecutions" a right "to be confronted with the witnesses against him." A particular problem occurs when there is a gap in time between the testimony that is offered and the cross-examination of it, as where—pursuant to a hearsay exception or exemption—evidence of a current witness's prior statement is offered and, for some intervening reason, her current memory is impaired. Does this fatally affect the opportunity to "confront" the witness? The U.S. Supreme Court has, to date, left unclear the extent to which a memory-impaired witness can afford a criminal defendant her right to confront. Would, for instance, it be of any value to permit a defendant the opportunity to cross-examine a witness claiming no recollection of having seen the crime or having identified the defendant as the perpetrator? Should the right to confront simply imply the ability to look one's accuser in the eye at trial, or should it necessitate some degree of opportunity for substantive cross-examination? Two petitions for certiorari that the U.S. Supreme Court denied in December 2019—White v. Louisiana and Tapia v. New York—could have permitted the Court to clarify confrontation rights in memory loss cases. This Article identifies and discusses eight key issues arising under the Confrontation Clause in connection with memory impairment in witnesses. Although the Court chose not to put these issues to rest in the context of White or Tapia, we anticipate federal and state courts will be called upon to answer these issues in the coming years, and we suspect the Court will eventually need to answer them.

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Table of Contents

I. Introduction......................................................................97

II. Confrontation Clause Background..........................100

A. CRAWFORD & TESTIMONIAL STATEMENTS................. 100
B. OBJECTIVE PRIMARY PURPOSE.................................. 102
C. MEMORY LOSS PRECEDENT....................................... 105

III. The Recent Supreme Court Petitions......................114

IV. Confrontation Clause & Memory Loss....................120

A. PARTIAL OR COMPLETE MEMORY LOSS...................... 122
B. SIMPLY FORGOTTEN OR DEMONSTRABLE-CAUSE MEMORY LOSS.......................................................... 127
C. MEMORY LOSS INITIATED BY DEMONSTRABLE CAUSE PRIOR TO STATEMENT OR AFTER STATEMENT........... 130
D. ACCUSED INVOLVED OR UNINVOLVED WITH MEMORY LOSS......................................................................... 132
E. GENUINE OR SUSPECT MEMORY LOSS....................... 134
F. MEMORY LOSS VERSUS ASSERTION OF PRIVILEGE..... 135
G. CHILD VERSUS ADULT MEMORY LOSS........................ 137
H. EXPERT OR LAY WITNESS.......................................... 141

V. Conclusion......................................................................145

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I. Introduction

The Confrontation Clause of the Sixth Amendment grants "the accused" in "all criminal prosecutions" a right "to be confronted with the witnesses against him."¹ The U.S. Supreme Court's landmark decision in Crawford v. Washington governs modern Confrontation Clause analysis.² Under the Crawford regime, the Confrontation Clause applies to hearsay statements offered against a criminal defendant pursuant to a hearsay exception or exemption, but only if such statements are the out-of-court equivalent of "bear[ing] testimony" at trial.³ These "testimonial" statements cannot be entered against a criminal defendant unless the hearsay declarant either (1) appears as a witness for cross-examination or (2) is unavailable in a situation where there has been a prior, sufficient opportunity for cross-examination of such declarant.⁴ While the Crawford opinion failed to fully define the class of testimonial statements,⁵ this class seems to include out-of-court statements that are meant or understood to offer some type of evidence at trial,

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particularly if such statements were made formally and directed to a state actor or agent.⁶

A problem occurs under Crawford and its progeny when there is a gap in time between the testimony that is offered and the cross-examination of it, as where—pursuant to a hearsay exception or exemption—evidence of a current witness's prior statement is offered and for some intervening reason her current memory is impaired. Does this fatally affect the opportunity to "confront" the witness? For instance, suppose a witness is testifying at trial and the prosecution seeks to enter a prior testimonial statement that the witness made to law enforcement. Insofar as the rules of evidence are concerned, this statement might be admissible.⁷ Normally, the fact that the witness is testifying at trial might be sufficient to meet the Confrontation Clause's requirements for introducing the prior statement. However, suppose that the testifying witness has suffered some degree of memory loss since having made the prior statement, such that she cannot recall the prior statement, the incident described in it, or both.⁸ Questions

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arise when determining whether such a memory-impaired witness could afford the defendant her confrontation rights. For example, should the right to confront simply mean the right to look one's accuser in the eye at trial and pose questions on cross-examination, even if the witness lacks sufficient memory of the events to answer such questions? Would a witness only meet the requirements of confrontation if she had the capacity to answer all substantive questions posed? Should the degree of the declarant's memory impairment make a difference?⁹

In this regard, two petitions for certiorari that the U.S. Supreme Court denied in December 2019—White v. Louisiana and Tapia v. New York—could have permitted the Court to clarify the current state of confrontation rights in memory loss cases.¹⁰ In each case, the prosecution sought to introduce a prior statement by a witness and the relevant witness testified at trial; but the witness suffered from memory loss.¹¹ According to the petitioners in each case, the memory-impaired witnesses were insufficient for purposes of the Confrontation Clause.¹²

The purpose of this Article is to identify and discuss eight key issues arising in connection with memory impairment in Confrontation Clause witnesses. Part II will offer background on the

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Confrontation Clause; Part III will present recent certiorari petitions highlighting problems under the Confrontation Clause created by witnesses' memory loss; Part IV will identify and discuss eight key memory impairment issues; and Part V will conclude.

II. Confrontation Clause Background

Prior to Crawford, courts were guided in Confrontation Clause cases by Ohio v. Roberts.¹³ Under Roberts, admission of hearsay statements consistent with the Confrontation Clause required the declarant's unavailability and sufficient "indicia of reliability."¹⁴ Crawford and its progeny altered the paradigm, finding that only so-called "testimonial" statements would trigger the protections of the Confrontation Clause.¹⁵

A. CRAWFORD & TESTIMONIAL STATEMENTS

In Crawford, the prosecution sought to offer "tape-recorded statement[s]" of the defendant's wife against the defendant.¹⁶ The wife's statements had been made to the police, but the defendant was not afforded an opportunity to cross-examine the wife at trial.¹⁷ Notwithstanding the defendant's argument that admitting the statements would violate his confrontation rights, the trial court permitted the prosecution to play the statements for the jury.¹⁸ The defendant was convicted, and the U.S. Supreme Court ultimately "granted certiorari to determine whether the State's use of [the wife's] statement violated the Confrontation Clause."¹⁹

In an opinion authored by Justice Scalia, the Court found that admission of the taped testimony violated the defendant's

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Confrontation Clause rights.²⁰ After reviewing the common law history of the confrontation right and the text of the Confrontation Clause, the Court determined that the Clause ensured a procedural right to cross-examination and was directed at those who "bear testimony" against the defendant.²¹ The Court noted, "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not."²² Accordingly, there existed a core class of out-of-court "testimonial" statements with which the Confrontation Clause was concerned, and admission of these testimonial statements against a criminal defendant without the opportunity for cross-examination at trial would violate the Clause (absent the declarant's unavailability and a prior opportunity to cross-examine the declarant).²³ The Court did not comprehensively define "testimonial," but it noted that the term "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations."²⁴

Chief Justice Rehnquist, joined by Justice O'Connor, wrote a concurring opinion to denounce the Court's overruling of Roberts²⁵ even though he believed "Roberts and its progeny" supported the Court's result.²⁶ According to the Chief Justice, the Court's "new

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interpretation of the Confrontation Clause" was unnecessary, was not supported "by sufficiently persuasive reasoning," and would "cast[] a mantle of uncertainty over future criminal trials."²⁷ He argued that neither the U.S. Supreme Court—nor any other court of which he was aware—had ever distinguished between nontestimonial and testimonial statements, and he saw "little value in trading [the Court's] precedent for an imprecise approximation at this late date."²⁸

In footnote 9, Justice...