The 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. 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 the very fact that he has a bad memory.
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, naming 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 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 excluded hearsay.
Was the Court of Appeals correct in reversing the conviction based on challenges on the Confrontation Clause and Rule 802 of the Federal Rules of Evidence?
The Court reversed the decision of the Court of Appeals on the ground that 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. In this case, the Court ruled that the Confrontation Clause, which guarantees only an opportunity for effective cross-examination, not a successful cross-examination, is satisfied due to the fact that the defendant has a full and fair opportunity to bring out the witness' bad memory and other facts tending to discredit his testimony. Furthermore, the Court asserted that 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. According to the Court, 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.