UNITED STATES OF AMERICA, PETITIONER V. JAMES JOSEPH OWENS No. 86-877 In the Supreme Court of the United States October Term, 1986 On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the United States TABLE OF CONTENTS Questions presented Opinion below Jurisdiction Constitutional provision and rule involved Statement Summary of argument Argument: I. The admission of Foster's out-of-court identification did not violate the Confrontation Clause A. The memory loss of a witness who testifies under oath at trial "does not have Sixth Amendment consequence" B. Even if a case-by-case inquiry into effectiveness were required, the record conclusively demonstrates that respondent achieved highly productive cross-examination II. The admission of Foster's out-of-court identification did not violate the Federal Rules of Evidence Conclusion OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-30a) is reported at 789 F.2d 750. JURISDICTION The judgment of the court of appeals (Pet. App. 31a) was entered on May 12, 1986. A petition for rehearing was denied on September 2, 1986 (Pet. App. 32a). On October 20, 1986, Justice O'Connor extended the time within which to file a petition for a writ of certiorari to and including December 1, 1986. The petition for a writ of certiorari was filed on December 1, 1986, and was granted on February 23, 1987 (J.A. 86). The jurisdiction of this Court rests upon 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISION AND RULE INVOLVED The Sixth Amendment to the Constitution provides in pertinent part: In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *. Rule 801(d) of the Federal Rules of Evidence provides in pertinent part: A statement is not heresay if -- (1) * * * The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * (C) one of identification of a person made after perceiving him * * *. QUESTIONS PRESENTED 1. Whether the Confrontation Clause was violated as a result of the in-court testimony of an assault victim, who recalled in detail his pretrial identification of respondent as his assailant but who could not remember certain details of the assault itself. 2. Whether Fed. R. Evid. 801(d)(1)(C) bars an assault victim from testifying at trial about his out-of-court identification of his assailant, when the victim has suffered a partial memory loss concerning the assault but has full recollection of the identification. STATEMENT Following a jury trial in the United States District Court for the Central District of California, respondent, a federal prisoner, was convicted of assault with intent to commit murder, in violation of 18 U.S.C. 113(a). He was sentenced to 20 years' imprisonment, to be served consecutively to the sentence he was already serving. 1. The evidence at trial showed that on the morning of April 12, 1982, 61-year-old John Foster, a correctional counselor at the federal prison in Lompoc, California, was assaulted and beaten with a metal pipe. In an effort to prove that it was respondent who beat Foster, the government called 14 witnesses, including Foster, three inmate eyewitnesses, and an inmate to whom respondent made inculpatory statements about the crime. The government also introduced physical evidence, including clothing belonging to respondent that contained blood spots matching Foster's blood type. a. The government's evidence revealed that on the day before the attack, several inmates discussed a plan to attack Foster. On that day, respondent attended a meeting of a prison religious group, called the "Moorish Science Temple of America" (the Moors). During the meeting, one of the inmates stated that "a move would have to be made in order to gain some kind of respect." He added that he was "tired of (Foster) fucking with (him)." Respondent, who was one of the leaders of the Moors, repeated those observations and expressed agreement with them. 4 Tr. 120-121, 126-128; 6 Tr. 141. /1/ The next morning, Foster arrived for work at the Lompoc prison and went to his office at the prison's "J" unit. After releasing the 94 inmates in the J unit for breakfast, Foster went to the unit's television room to check for contraband. While he was inside the television room, Foster was struck several times on the face, head, and upper body. J.A. 19-20, 22-27, 49-52. Inmate Reginald Bowers was one of the three inmate eyewitnesses to the assault who testified at trial. On the morning of the assault, Bowers was on a landing near the J unit television room, when he saw inmates Melvin Davis and Cecil Curry, whom he had seen the day before at the Moors' meeting. After one of them told Bowers that he "shouldn't be coming up here," Bowers heard a "shuffling-like noise" coming from the room. Upon opening the door, Bowers saw Foster lying on the floor, shaking and going into convulsions. Respondent was standing over Foster holding a metal pipe. When he saw Bowers, respondent asked him what he was doing there, swung something at him, and ran out the door. 4 Tr. 120, 136-142. Inmate Albert Washington also witnessed the assault. While on his way to the laundry room on the morning of the assault, Washington heard crying or moaning sounds coming from the television room. He looked through the window of the room and observed respondent, who was wearing a gray sweatshirt, repeatedly strike Foster on the art with a pipe. Washington also saw Curry and Davis at the scene of the assault. 1 Tr. 238-249, 269. Inmate Michael Jeffery also witnessed the incident. Jeffery was taking a shower when he heard a "gurgling, loud strangling noise." Jeffery left the shower, went to the door of the television room, and looked inside, where he observed respondent repeatedly strike Foster with a "long round object" that "could have been a pipe." After returning to the shower, Jeffery saw respondent enter an adjacent mop room. He then heard respondent tell Davis to throw respondent's sweatsuit top out the window. Jeffery watched as Davis appeared to do so. 3 Tr. 16-21, 24-26. /2/ During the assault, Foster set off the body alarm that he was carrying with him. Prison officials discovered Foster in the television room lying in a pool of blood, and they immediately rushed him to the hospital. J.A. 31; 1 Tr. 198-201. Following the assault, prison officials found a bloody metal pipe in the prison yard, a sweatsuit top outside the mop room window (where Jeffery had seen the garment thrown), and a pair of khaki trousers in an unassigned J unit cell. Blood stains on both the sweatsuit and the trousers matched Foster's blood type. J.A. 52; 3 Tr. 118; 4 Tr. 101-104, 253, 255-256. Washington identified the sweatsuit top as the one worn by respondent during the assault; Jeffery identified it as the one he saw Davis throw out the window at respondent's direction; and a prison official recognized it as one worn by respondent on a daily basis prior to the assault. 1 Tr. 193-195, 246-247; 3 Tr. 28. In addition, a photograph of respondent wearing what appeared to be the same sweatsuit top was found among his belongings (5 Tr. 34). The khaki pants were also identified as similar to the prison-issued pants typically worn by respondent, and when respondent tried them on at trial, they fit him (1 Tr. 195-197; 5 Tr. 10-11). During the investigation of the assault, prison authorities placed respondent in a segregation unit. While he was there, respondent became acquainted with another inmate, Douglas Ridinger, who worked as an orderly. Approximately a week after the assault, Ridinger asked why Foster had been assaulted. Respondent replied, using words similar to those spoken at the Moors' meeting on April 11, 1982, that "this is something we have to do in order to get respect, just plain and simple." 3 Tr. 124-130, 144-145; 4 Tr. 59. The medical evidence at trial revealed that Foster suffered fractures to his skull, cheekbone, arm, and right middle finger, as well as various other injuries. He was initially very confused and disoriented and could remember little more than his name. According to Foster's neurosurgeon, at least five hard blows with a blunt instrument were necessary to cause the head injuries alone. The neurosurgeon performed emergency surgery on the day of the assault to relieve pressure on Foster's brain caused by the fractured skull. Foster initially showed some improvement, but then began to suffer periods of confusion and disorientation. After additional surgical procedures were performed, Foster was released from the hospital on May 10, 1982. J.A. 49-55; 2 Tr. 156-157, 162-165, 172-175. During his hospital stay, Foster was visited by Dr. Ted Bader, the prison physician. As Dr. Bader recounted at trial, when he asked Foster who had assaulted him, Foster responded, without hesitation, "I think it was Owens, the D.C. black" (J.A. 72). FBI Agent Thomas G. Mansfield, who was investigating the assault, learned about Foster's statement and attempted to interview him. Foster appeared lethargic and groggy, however, and when Mansfield asked who had assaulted him, Foster's only response was a word that sounded like "coma." A few days prior to Foster's release from the hospital, Mansfield interviewed him again. This time, according to Mansfield's testimony, Foster's condition had improved substantially. Foster, who was alert and coherent, described how the attack had occurred, said that respondent was his assailant, and selected respondent's photograph from a photospread. J.A. 73-77. 13-49). /3/ After describing his professional background (J.A. 13-19), Foster testified that he knew respondent as an inmate of the J unit (J.A. 19). He recalled that, on April 12, 1982, he arrived at the prison at 5:35 a.m. He first obtained a body alarm and the keys to the J unit. He then went to the counselor's office in the unit, where he made a pot of coffee and recorded the inmate count in a logbook. Shortly after 6 a.m., he was called by a superior and instructed to begin feeding the prisoners. Foster opened the doors to each range of cells, and he entered the J unit television room to inspect it for contraband. Shortly after entering the room, he felt an impact on his head. Although he could not remember the identity of the person who struck him, he recalled that his assailant was armed with a piece of pipe. He also recalled that, following the assault, he looked down and saw blood on the floor. Foster testified that his injuries included a fractured skull, cuts and bruises, and a broken arm. Foster also recalled injuring his right middle finger when he jammed it into his assailant's chest. J.A. 20-29, 34. Foster explained that the next thing he remembered after being hit was waking up at the hospital. The one hospital visit he recalled at trial was a visit by Agent Mansfield. J.A. 27-28, 30-31. Foster testified that "(a)s to what I told Mr. Mansfield that day, it is very vivid in my mind" (J.A. 31; see also id. at 28). In particular, Foster remembered telling Mansfield that "after 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" (J.A. 31). He indicated, moreover, that at the time he spoke to Mansfield, there was no doubt in his mind that what he had said was accurate. In addition, Foster recalled that Mansfield asked him to identify his assailant from a group of photographs and that he selected respondent's picture. J.A. 31-32. Foster was subjected to extensive cross-examination, during which he acknowledged that "(a)t this time he (did not) remember" seeing his assailant (J.A. 35). In response to defense counsel's inquiries, he also conceded that while his statement to Mansfield was "vivid," he could not recall making any other statements during his stay at the hospital, and he did not remember asking (as reflected in a medical report) who his assailant was or whether it was "Leo" (J.A. 36,38, 41). He admitted that, although many people, including his wife, had apparently visited him during his hospital stay, he did not recall any of the visits except the visit by Mansfield that he had described (J.A. 41-42, 44-45). Foster stated that the assailant was "vivid in (his) mind when (he) had given the information to Mr. Mansfield," but he was unable to explain the basis for his identification (J.A. 45). /4/ During summation, respondent's attorney emphasized Foster's testimony about his loss of memory, as elicited during cross-examination. She argued that Foster had admitted that he could not remember why he had told Mansfield that respondent had committed the assault. From that she suggested that Foster probably had made the identification as the result of suggestions by persons who had visited him in the hospital. J.A. 80-85. 2. On appeal, respondent renewed his challenge to the admission of Foster's out-of-court identification. The Ninth Circuit reversed respondent's conviction by a divided vote, holding that because of Foster's memory loss, the defense was unable to cross-examine him effectively (Pet. App. 1a-23a). Although the court recognized that respondent's attorneys were "not restricted in their questioning of Foster" on the relevant issues (id. at 11a), it determined (id. at 15a) that Foster's responses did not give the jury "the information it needed in order to determine whether Foster had perceived his attacker, accurately or at all, or whether at the time he made the identification, his memory correctly reflected his perceptions." The court (id. at 17a-18a) explicitly rejected the approach taken by the Third Circuit in United States ex rel. Thomas v. Cuyler, 548 F.2d 460, 463 (1977), which held that the Confrontation Clause is not violated if the witness is sworn and agrees to testify, even if he asserts an actual or feigned memory loss. In addition, the court of appeals held (Pet. App. 8a-11a) that the admission of Foster's pretrial identification violated Fed. R. Evid. 801(d)(1)(C). The court construed Rule 801(d)(1)(C) to require cross-examination not only about the identification itself, but also about "the facts and circumstances underlying the identification," namely, "the reasons why (the declarant) made the identification" (Pet. App. 9a) (emphasis in original). The court held that because of Foster's memory loss, respondent was prevented from adequately exploring the basis for the pretrial identification (id. at 11a). The court concluded that the violation of Rule 801(d)(1)(C) was harmless under the standard applicable to non-constitutional errors, in light of the testimony of the inmate eyewitnesses, the evidence of respondent's inculpatory remarks concerning the assault, and the physical evidence linking respondent to the crime (Pet. App. 12a). The court ruled, however, that the violation of the Confrontation Clause was not harmless under the standard applicable to constitutional errors. Because the court could not find that the Confrontation Clause violation was harmless beyond a reasonable doubt, it reversed respondent's conviction (id. at 22a-23a). Judge Boochever dissented. He stated that, in his view, the Confrontation Clause does not require that cross-examination actually be effective but only that the defendant be given the opportunity for effective cross-examination (Pet. App. 29a). He pointed out that Foster "answered all questions put to him; he stated what he could remember and what he could not remember" (ibid.). According to Judge Boochever (id. at 26a-27a, 29a), the cross-examination conducted by respondent's attorney at trial gave the jury an adequate basis to assess Foster's demeanor and to determine whether to credit his out-of-court identification. Judge Boochever therefore concluded that the Confrontation Clause was not violated. Judge Boochever also stated that, in his view, the requirements of Fed. R. Evid. 801(d)(1)(C) were met. He indicated that the Rule, by its terms, requires only that the witness be subject to cross-examination concerning the out-of-court statement itself, not that he be subject to cross-examination concerning the circumstances underlying the identification. The Rule's requirement was met, he concluded, because Foster had a complete recollection of his statement to Mansfield, even though he did not remember why he was able to identify respondent. Pet. App. 25a-26a. /5/ SUMMARY OF ARGUMENT I.A. The principal question in this case is whether the Sixth Amendment right of confrontation was violated by the admission of Foster's out-of-court identification of respondent as his assailant, where Foster testified at trial about his prior identification, but acknowledged a partial memory loss concerning various details of the underlying assault. The court of appeals held that, because of Foster's memory loss, he was not subject to "meaningful" or "effective" cross-examination concerning his out-of-court statement, which the court beleived was required by the Confrontation Clause (Pet. App. 16a, 23a). We submit that the Confrontation Clause does not guarantee that a witness will have a certain threshold of memory concerning the events in question or that a defendant's cross-examination of him will be effective in any specific way. This Court has never found a violation of the Confrontation Clause based on the loss of memory by a witness who testified at trial. Rather, the Court has adopted the position that the Confrontation Clause provides no guarantee against testimony "that is marred by forgetfulness, confusion or evasion" (Delaware v. Fensterer, No. 85-214 (Nov. 4, 1985), slip op. 6). In California v. Green, 399 U.S. 149, 168-169 (1970), the Court raised but did not reach the question whether an out-of-court statement can be admitted, consistent with the Confrontation Clause, when the declarant testifies at trial but asserts a total or partial memory loss with regard to the statement or the underlying events. In his concurring opinion in Green, however, Justice Harlan answered the question left open by the Court. He took the position that, if a witness is physically present at trial, the fact that he "cannot recall either the underlying events that are the subject of an extra-judicial statement or previous testimony or recollect the circumstances under which the statement was given, does not have Sixth Amendment consequence" (id. at 188). In our view, Justice Harlan's analysis of the Confrontation Clause implications of a witness's memory lapse is correct. By physically producing the witness, the government has done everything within its power to enable the defense to confront him and show why he should not be believed. Because the witness is present in court, the jury can observe his demeanor and assess his credibility. Furthermore, while a witness's memory loss may sometimes hamper cross-examination to some extent, it is just as often the case that the exposure of memory loss serves to discredit the witness's testimony. But in no event should the quality of a witness's recollection give rise to a Sixth Amendment claim. The constitutional significance of memory loss should not be different simply because, as in this case, a witness's prior statements are involved. Even when such statements are introduced, the Confrontation Clause is satisfied because the jury has the declarant before it and can decide, based on his testimony and demeanor, whether (and to what extent) his prior statement should be credited. The jury is not being asked to consider statements made by someone who is not present at trial and subject to cross-examination. Accordingly, it is our submission that a witness's memory loss has no Sixth Amendment consequence and that his physical presence at trial satisfies the Confrontation Clause as long as (1) he does not assert his right against self-incrimination or otherwise refuse to testify, (2) he is capable of understanding the nature of the proceedings and of engaging in a question and answer dialogue, and (3) the scope of cross-examination is not improperly restricted by the trial court. In the present case, Foster testified under oath in the presence of the jury and answered all questions posed to him to the best of his ability. Apart from routine evidentiary rulings, the trial court allowed respondent to engage in unrestricted cross-examination. Under these circumstances, there was no denial of respondent's right of confrontation. B. Even if the Confrontation Clause were construed to require that a witness possess a sufficient memory to facilitate "meaningful" or "effective" cross-examination, such a requirement would have been fully satisfied in this case. Foster had a clear recollection of his out-of-court statement. In addition, he was able to recall numerous details surrounding the assault, including the type of weapon that was used, the injuries he sustained, the location of the incident, and the fact that he jammed his finger into his assailant's chest. Respondent's cross-examination of Foster was effective in showing that Foster could not recall whether he had seen his assailant. Respondent made use of that fact to discredit Foster's out-of-court identification by arguing to the jury that Foster did not see his assailant but instead based his identification on statements made by others. In short, respondent's cross-examination of Foster was "effective" or "meaningful" under any reasonable standard. II. The admission of Foster's out-of-court identification of respondent was also consistent with Fed. R. Evid. 801(d)(1)(C). The court of appeals interpreted Rule 801(d) (1)(C) to forbid testimony about a prior identification unless the declarant testifies at trial and has a clear memory not only of his prior identification but also of the underlying events. We believe that the court's interpretation is erroneous for three reasons. First, even if the witness cannot recall the out-of-court statement or the underlying events, he is nonetheless "subject to cross-examination," provided that the scope of cross-examination is not improperly restricted by the trial court and the witness is present at trial, understands the proceedings, and is willing to testify. Second, even if the Rule is construed to require that the declarant have sufficient recollection of prior events to be able to supply detailed information on cross-examination, the Rule requires only that the declarant be subject to cross-examination "concerning the statement," not "concerning the subject matter of (the) statement." Compare Fed. R. Evid. 804(a)(3). In reaching the contrary conclusion, the court of appeals completely disregarded the plain language of the Rule. Third, the court's interpretation is contrary to the purpose of the Rule. Rule 801(d)(1)(C) was added to the Federal Rules of Evidence to ensure that prior statements of identification are not excluded when a witness's memory has faded by the time of trial. The court's interpretation totally defeats this legislative intent by allowing prior statements of identification to be offered at trial only when the declarant has not suffered a memory loss concerning the underlying events. In the present case, Foster was available for unrestricted cross-examination at trial. Even if that were not enough, the record also shows that Foster had a clear recollection of his prior statement, and was thereby capable of answering detailed questions concerning that statement. Accordingly, the requirements of Rule 801(d)(1)(C) were satisfied, and Foster's prior identification of respondent was properly admitted at trial. ARGUMENT I. THE ADMISSION OF FOSTER'S OUT-OF-COURT IDENTIFICATION DID NOT VIOLATE THE CONFRONTATION CLAUSE A. The Memory Loss Of A Witness Who Testifies Under Oath At Trial "Does Not Have Sixth Amendment Consequence" 1. The Confrontation Clause of the Sixth Amendment provides that the accused in a criminal prosecution shall have the right "to be confronted with the witnesses against him." As this Court has emphasized, the Confrontation Clause "reflects a preference for face-to-face confrontation at trial." Ohio v. Roberts, 448 U.S. 56, 63 (1980) (citing California v. Green, 399 U.S. 149, 157 (1970); Barber v. Page, 390 U.S. 719, 725 (1968)). /6/ The right of confrontation embodied in the Sixth Amendment developed during the 17th century in response to the practice of prosecuting defendants based on ex parte affidavits or depositions rather than on live testimony. See Green, 399 U.S. at 156-157; see generally Gannett Co. v. DePasquale, 443 U.S. 368, 420-421 (1979) (Blackmun, J.); 3 W. Blackstone, Commentaries on the Law of England 373-374 (1768). /7/ As this Court has explained (Green, 399 U.S. at 157-158, quoting Mattox v. United States, 156 U.S. 237, 242-243 (1895)), trial by affidavit deprived the defendant of "'an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.'" Based on the historical roots of the right of confrontation, /8/ this Court has identified three specific values that the Confrontation Clause was designed to serve: (1) to insure that the witness gives his statements under oath, "thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury"; (2) to "force() the witness to submit to cross-examination"; and (3) to permit the jury "to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility." Green, 399 U.S. at 158 (footnote omitted). See also Roberts, 448 U.S. at 63-64 & n.5. These values are undermined when a court improperly restricts defense efforts to cross-examine a witness. See Delaware v. Van Arsdall, No. 84-1279 (Apr. 7, 1986); Davis v. Alaska, 415 U.S. 308 (1974); Smith v. Illinois, 390 U.S. 129 (1968). Likewise, these values are not served when cross-examination is impeded because the witness is unable to understand the proceedings or because he has refused to testify. See Douglas v. Alabama, 380 U.S. 415 (1965); Mayes v. Sowders, 621 F.2d 850 (6th Cir.), cert. denied, 449 U.S. 992 (1980); United States v. Fiore, 443 F.2d 112 (2d Cir. 1971), cert. denied, 410 U.S. 984 (1973). By contrast, when a witness is present for cross-examination at trial, and when the court does not improperly curtail the defendant's cross-examination, the three objectives of the Confrontation Clause are served even if the witness suffers from a lapse of memory regarding the events that are the subject of his testimony. It is therefore, our submission that, notwithstanding the quality of a witness's memory, the physical presence of the witness satisfies the Confrontation Clause as long as (1) the scope of cross-examination has not been impermissibly restricted by the trial court or by statute; (2) the witness is physically and mentally capable of understanding the proceedings and engaging in a question and answer dialogue; and (3) the witness does not assert his Fifth Amendment privilege or otherwise refuse to testify or be sworn. In the present case, Foster testified under oath and answered every question posed to him to the best of his ability. The jury was able to observe his demeanor and evaluate his credibility. Moreover, as the court of appeals acknowledged (Pet. App. 11a), respondent's ability to engage in unfettered cross-examination of Foster was not impeded by the trial court. Under these circumstances, there was no denial of respondent's right of confrontation. 2. This Court has never held that a witness's memory loss deprives a defendant of the right of confrontation. To the contrary, the Court's decisions support our submission that, if the witness is present at trial for cross-examination, the requirements of the Confrontation Clause are satisfied. In California v. Green, supra, the Court addressed the possible Sixth Amendment implications of admitting a witness's Prior statements as substantive evidence at trial. In that case, a minor named Porter, who had been arrested for selling marijuana to an undercover officer, informed the police and later testified during a preliminary hearing that defendant Green had been his source for the drugs. During Green's trial for furnishing marijuana to a minor, the officer recounted Porter's statement to him, and the preliminary hearing transcript was admitted as well. When Porter claimed during his own testimony that he could not recall how he had obtained the marijuana, the prosecutor read excerpts from Porter's preliminary hearing testimony. On cross-examination, however, Porter stated that, although he recalled his former testimony and his statement to the officer, he was still unsure of the actual episode. 399 U.S. at 151-152. The California Supreme Court held that the introduction of Porter's prior statements as substantive evidence violated the Confrontation Clause. This Court reversed. The Court first concluded that as a general matter the admission of a pretrial statement does not offend the Confrontation Clause as long as the declarant is subject to cross-examination at trial (399 U.S. at 162-164). According to the Court (id. at 162), "where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases * * * support the conclusion that the admission of his out-of-court statements does not create a confrontation problem." The Court further held that, in any event, the preliminary hearing testimony was admissible since Porter was subject to cross-examination during that proceeding (id. at 165-168). The Court remanded the case to the California Supreme Court, however, to address the "narrow question" whether the trial court erred in introducing Porter's statement to the officer. The Court noted (id. at 168-169) that in light of the failure of the lower court or the parties to focus on the issue, it was premature for the Court to decide "(w)hether Porter's apparent lapse of memory so affected Green's right to cross-examine as to make a critical difference in the application of the Confrontation Clause in this case * * *." /9/ In a concurring opinion, Justice Harlan addressed the issue that the Court did not reach. He expressed the view that, to satisfy the requirements of the Confrontation Clause, all that was necessary was for the "prosecution (to) produce() its witness, Porter, and ma(ke) him available for trial confrontation." 399 U.S. at 188. According to Justice Harlan, "(t)he fact that the witness, though physically available, cannot recall either the underlying events that are the subject of an extra-judicial statement or previous testimony or recollect the circumstances under which the statement was given, does not have Sixth Amendment consequence." In his view, "the prosecution has no less fulfilled its obligation simply because a witness has a lapse of memory." Id. at 188-189. This Court's subsequent decisions are fully consistent with Justice Harlan's analysis in Green. /10/ In Delaware v. Fernsterer, an FBI fiber analyst who testified at trial could not recall the scientific method he had used as a basis for his opinion that a hair found on the murder weapon had been forcibly removed. The Supreme Court of Delaware reversed the defendant's conviction on Confrontation Clause grounds (493 A.2d 959 (1985)), holding that, in light of the lapse in the expert's memory, the defendant's cross-examination of him was "nothing more than an exercise in futility" (id. at 964). According to that court, "(e)ffective cross-examination and discrediting of (the expert's) opinion at a minimum required that he commit himself to the basis of his opinion" (ibid. (footnote omitted)). This Court summarily reversed, holding that the requirements of the Confrontation Clause were satisfied. The Court recognized that the defense has the right to test the witness's memory and perception during cross-examination, but it held that the right to cross-examine is not denied simply because a lapse of memory impedes one method of discrediting the witness (Fensterer, slip op. 4). It explained that "'(t)he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination'" and that as a general rule, the Confrontation Clause merely "guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Id. at 4-5 (emphasis in original; citation omitted). According to the Court (id. at 5), the "assurances of reliability" that the right of cross-examination was intended to protect were "fully satisfied" notwithstanding the witness's memory loss, because "the factfinder (could) observe the witness' demeanor under cross-examination, and the witness (was) testifying under oath and in the presence of the accused." Although the Fensterer Court did not decide whether there are any circumstances in which a witness's lack of recollection may so frustrate cross-examination as to violate the Confrontation Clause, it noted (id. at 6-7) that "the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose (a witness's memory loss) through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony." Most recently, in Pennsylvania v. Ritchie, No. 85-1347 (Feb. 24, 1987), the Court addressed the question whether the Confrontation Clause required disclosure to the defense of confidential records relating to a state protective services agency investigation of a sexual assault on a minor with which the defendant was charged. The Supreme Court of Pennsylvania had held that the right to such disclosure was required by the Confrontation Clause because the records were necessary to permit counsel to prepare for cross-examination of the government's witnesses at trial. A plurality of the Court rejected the Pennsylvania Supreme Court's rationale on the ground that the right of confrontation was "a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination" (Ritchie, slip op. 11 (emphasis in original)). The plurality explained (id. at 11-12) that this principle had been established in a line of cases, including Fensterer. In discussing Fensterer, the plurality indicated that while the expert witness's memory loss "frustrated defense counsel's efforts to discredit the testimony," the Sixth Amendment "was not implicated, 'for the trial court did not limit the scope or nature of defense counsel's cross-examination in any way'" (Ritchie, slip op. 12 (quoting Fensterer, slip op. 4)). The plurality noted (Ritchie, slip op. 12 (footnote omitted)) that "Fensterer was in full accord with our earlier decisions, that have upheld a Confrontation Clause infringement claim * * * only when there was a specific statutory or court-imposed restriction at trial on the scope of questioning. /11/ As the plurality's analysis in Ritchie revealed, there is a critical difference, for Sixth Amendment purposes, between impediments to cross-examination resulting from restrictions by the trial court or by statute, and impediments resulting merely from the circumstances in which the case is tried. Thus, under the analysis adopted by the plurality in Ritchie, even though extrinsic circumstances -- such as the denial of discovery -- may render the defendant's cross-examination less effective than it might otherwise have been, there is no Confrontation Clause violation as long as the cross-examination at trial is unrestricted. It follows a fortiori that a circumstance over which the government has no control -- such as a witness's memory loss -- cannot result in a Confrontation Clause violation, even if that circumstance renders the defendant's cross-examination less effective than he would like. 3. Notwithstanding Foster's presence at trial and respondent's ability to conduct essentially unrestricted cross-examination of him, the court of appeals held that Foster's memory loss resulted in a violation of the Sixth Amendment. The court relied heavily on the fact that an out-of-court statement by Foster was introduced, and it found Fensterer inapplicable for that reason (Pet. App. 12a-13a & n.7). The determination whether a witness's memory loss has Sixth Amendment implications, however, should not depend on whether an out-of-court statement is involved. To be sure, the Court in Fensterer (slip op. 6) and Green (399 U.S. at 168-169) explicitly declined to reach the question whether a witness's memory loss violates the Confrontation Clause when an out-of-court statement of the witness is introduced. Nonetheless, the policies underlying the Confrontation Clause suggest that the result should not turn on that distinction. First, the typical hearsay and confrontation concerns involving out-of-court statements are largely eliminated when the declarant is present at trial and subject to cross-examination concerning his earlier statement. As this Court stated in Green (399 U.S. at 158), "if the declarant is present and testifying at trial, the out-of-court statement for all practical purposes regains most of the lost protections." /12/ See also id. at 188 (Harlan, J., concurring) (when declarant is present at trial, his out-of-court statement "is hearsay only in a technical sense since the witness may be examined at the trial as to the circumstances of memory, opportunity to observe, meaning, and veracity"); People v. Gould, 54 Cal. 2d 621, 626, 354 P.2d 865, 867, 7 Cal. Rptr. 273, 275 (1960) (quoted in Gilbert v. California, 388 U.S. 263, 273 n.3 (1967)) (noting that a witness's failure to repeat an out-of-court identification at trial "does not destroy its probative value" because "such failure may be explained by loss of memory or other circumstances" and "the principal danger of admitting hearsay evidence is not present since the witness is available at trial for cross-examination"); Model Code of Evidence, Comment to Rule 503(b) (1942) (noting, in approving introduction of out-of-court statement even where witness has suffered a loss of memory, that "both the adversary and the jury are in a more advantageous position to evaluate the evidence than they would be if the declarant were not subject to present cross-examination"); Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv. L. Rev. 177, 195-196 (1948) (stating view that there is "no real reason for classifying (an out-of-court statement) as hearsay" where the declarant is present as a witness at trial because "(the) (p)roponent is not asking the (t)rier (of fact) to rely upon the credibility of any one who is not present and subject to all the conditions imposed upon a witness"); cf. Nelson v. O'Neil, 402 U.S. 622 (1971) (no violation of Confrontation Clause where declarant is rebent at trial and testifies as to activities during period described in his out-of-court statement, but denies making statement and claims that substance of statement was false). In short, the dangers frequently associated with out-of-court statements are not present when the declarant is produced at trial and is subject to cross-examination. Second, to give special treatment to memory loss in cases involving out-of-court statements would be to ignore the fact that in virtually every memory loss case, the memory loss will relate to some incident that occurred out of court. Specifically, unless a witness is offering only character testimony or an expert opinion based on hypothetical facts, his trial testimony will necessarily involve out-of-court observations or statements. /13/ For example, a witness who observes a crime and identifies the defendant as the perpetrator may recall very little about the circumstances of the event, yet have a vivid impression that it was the defendant who committed the crime. There is very little difference between such a witness, who makes an in-court identification of the defendant but forgets most of the circumstances on which that identification is based, and a witness such as Foster, who remembers making an identification prior to trial, but forgets the details of the event that led him to make that identification. The status of the two cases for Confrontation Clause purposes should be the same. In both cases, the witness who is recounting the pretrial event or statement is present in court, can be cross-examined by the defense, and can be observed by the jury. In neither case is a prosecution asking the jury to rely on the credibility of someone who has not been produced at trial. Furthermore, while the defense might ideally prefer to cross-examine a declarant when he first makes his out-of-court identification (or makes the out-of-court observation that leads to his in-court identification), this Court has explicitly rejected the proposition that contemporaneous cross-examination is required under the Confrontation Clause (Green, 399 U.S. at 160-161). /14/ It therefore follows that there is little, if any, analytical difference for confrontation purposes between a witness's memory loss involving an out-of-court statement and his memory loss involving an out-of-court event. Fensterer provides a useful illustration of the reason that Confrontation Clause analysis of a case involving memory loss should not depend on whether an out-of-court statement is involved. In Fensterer, the expert testified about the results of his out-of-court analysis, but he was unable to recall the circumstances that led him to reach that conclusion. In this case, Foster testified about the result of his prior identification, but he was unable to recall the circumstances that led him to make that identification. Although the identification evidence in this case and the expert testimony in Fensterer may stand differently for hearsay purposes, there is no reason to treat them differently for purposes of the Confrontation Clause. Cf. Fensterer, slip op. 1 (Stevens, J., concurring) (emphasis in original) (noting that the question in Fensterer concerned "the admissibility of an earlier out-of-court conclusion reached by a witness who disclaims any present recollection of the basis for that conclusion" and that the issue was therefore similar to the one reserved in Green). In each case, the defendant had the witness on the stand, under oath and in the presence of the jury, and was able to exploit the witness's failure of recollection to undermine the force of his testimony. /15/ In that setting, it should make no difference, for Sixth Amendment purposes, whether the government is offering testimony regarding the witness's prior statement or testimony regarding the witness's prior observations or activities. It is important to emphasize that our position does not necessarily result in the admission of out-of-court statements at trial merely because the witness is present in court. Rather, our position is simply that the Confrontation Clause does not bar the admission of otherwise admissible out-of-court statements where the declarant is present at trial and subject to cross-examination, even where the witness has suffered a memory loss concerning the statement or the underlying circumstances of the event in question. The admissibility of such statements should be governed by the rules of evidence. It should not be governed by a rigid constitutional formula that would foreclose courts and legislatures in both the state and federal systems from adopting evidentiary rules taking divergent approaches to the admission of evidence given by witnesses who have suffered some lapse of memory regarding the subject matter of their testimony. Cf. Green, 399 U.S. at 154-155 (noting that the issue was not whether prior inconsistent statements should be allowed, as a matter of evidence law, as substantive evidence but rather was the "considerably narrower" issue of whether such admission violates the Confrontation Clause). 4. The result of the court of appeals' holding in this case is that the constitutional significance of a witness's memory loss must be decided on a case-by-case basis in light of whether the cross-examination was "effective" or "meaningful" (Pet. App. 16a, 23a). But the court did not -- and could not -- formulate principles to identify what this Court has characterized as "some inevitably nebulous threshold of 'effectiveness'" (Roberts, 448 U.S. at 73 n.12). Any rule that would make the constitutional inquiry turn on the extent of a witness's memory loss would be both unworkable and illogical. Frequently, eliciting a witness's memory loss concerning key facts or events represents the hallmark of successful cross-examination. As one authoritative trial practice treatise has explained, where a witness "testifies fully on direct examination" and then answers on cross-examination that he does not remember certain information, "the more times that counsel can make the witness say 'I don't remember' to her questions, the better will be the psychological effect, and the more forceful the argument that can be made in 'summing up.'" 3 A. Lane, Goldstein Trial Techniques Section 19.58, at 97 (3d ed. 1986). Indeed, Wigmore describes several instances in which "(s)ome of the most effective exposures of false testimony in the history of trials have been achieved" by revealing a witness's memory loss. See 3A J. Wigmore, Evidence Section 995, at 932-934 (Chadbourn rev. 1970). According to Wigmore, "(r)epeated instances of inability to recollect give the right to doubt the correctness of an alleged recollection of a material fact * * *. All the great cross-examiners have relied upon (that technique) * * *" (id. at 931-932). See also Fensterer, slip op. 4 (indicating that the exposure of the expert's memory loss served to case doubt on the reliability of his opinion); Greene v. McElroy, 360 U.S. 474, 497-498 (1959) (indicating that one purpose of cross-examination is to "uncover * * * lapses of recollection"); Creekmore v. Dist. Court of Eighth Judicial Dist., 745 F.2d 1236, 1238 (9th Cir. 1984) (noting, in holding that the witness's memory loss at issue did not violate the Confrontation Clause, that the exposure of such memory loss "bespeaks the effectiveness of the cross-examination"); 3 D. Louisell & C. Mueller, Federal Evidence Section 342, at 486 (1979) ("(c)ross-examination seems the ideal mechanism to bring to light" a witness's memory loss or impairment); Pollitt, The Right of Confrontation: Its History and Modern Dress, 8 J. Pub. L. 381, 381 (1959) (noting that one of the purposes served by the right of confrontation is "to disclose * * * (a witness's) ability or lack thereof to recollect that which he observed"). In short, it is simply not possible to devise a workable test for determining when, if ever, the exposure of memory loss through cross-examination demonstrates a constitutional violation rather than an example of effective advocacy. The futility of a case-by-case approach is illustrated by the numerous decisions of various courts of appeals that, while not adopting the per se standard suggested by Justice Harlan in Green, have rejected Sixth Amendment challenges where the witness's memory loss was far more extensive than that involved here. For example, in United States v. Di Caro, 772 F.2d 1314, 1325-1328 (7th Cir. 1985), cert. denied, No. 85-1007 (Mar. 24, 1986), the court held that, notwithstanding a witness's claim of complete amnesia concerning the events underlying his grand jury testimony, admission of that testimony did not violate the Sixth Amendment because the declarant was questioned about his claimed amnesia and other matters relevant to his credibility. Similarly, in United States v. Payne, 492 F.2d 449, 453-454 (4th Cir.), cert. denied, 419 U.S. 876 (1974), the court of appeals upheld the admission of a prior statement of a witness, even though the witness claimed complete loss of memory about the circumstances of the statement and the facts related in it. The court pointed out that the case of complete memory loss differs only in degree from a case in which "a declarant has made a detailed earlier statement and at the trial, despite efforts to refresh his recollection, remembers only some, but not all, of the details." 492 F.2d at 454. The court concluded that there was no Sixth Amendment violation because the declarant was available for cross-examination about other events contemporaneous with the period to which his statement related, as well as possible bias or prejudice and the reasons underlying his memory loss. Ibid. And in United States v. Insana, 423 F.2d 1165, 1168 (2d Cir.), cert. denied, 400 U.S. 841 (1970) the court permitted the government to introduce a witness's prior statement when the witness at trial claimed a virtually complete lack of memory regarding the subject of his prior statement. The Confrontation Clause was satisfied, the court concluded, because the witness was at all times available for cross-examination. According to the court, the fact that the defendant "believes such examination would be fruitless (does not) render the witness unavailable for such examination." 423 F.2d at 1168. /16/ Although many of these cases involved feigned rather than actual memory loss, a distinction for Sixth Amendment purposes between genuine and feigned memory loss would lead to the anomalous result that the jury would be precluded from hearing testimony from a witness who is presumably being truthful but would be permitted to hear evidence from one who is not. In any event, it is the jury's function to determine whether a witness's memory loss is genuine or feigned, and nothing in the Sixth Amendment requires that the trial court preempt that function by serving as a constitutional screen against the admission of prior statements of witnesses whose memory loss is judged to be genuine. As the cases cited above indicate, the case-by-case approach to analyzing the Sixth Amendment significance of a witness's memory loss has led to substantial appellate litigation. Yet until the present case, the courts of appeals appear consistently to have rejected such challenges in cases involving memory loss far more severe than Foster's. /17/ We submit that the approach to memory loss taken by Justice Harlan in Green would eliminate such litigation while in no way undermining the purposes served by the Confrontation Clause. Cf. United States v. Inadi, No. 84-1580 (Mar. 10, 1986), slip op. 11 (noting, in rejecting a rule requiring inquiry into unavailability whenever the government introduces a co-conspirator declaration, that such a rule has minimal benefits yet "automatically adds another avenue of appellate review in these complex cases"); Roberts, 448 U.S. at 73 n.12 (emphasizing importance of rules that "increas(e) certainty and consistency in the application of the Confrontation Clause"). B. Even If A Case-By-Case Inquiry Into Effectiveness Were Required, The Record Conclusively Demonstrates That Respondent Achieved Highly Productive Cross-Examination Even assuming the court of appeals was correct in requiring a case-by-case analysis of the effectiveness of cross-examination, it nonetheless erred in finding a Sixth Amendment violation in this case. The record in this case reveals that under any reasonable standard, respondent achieved "effective" and "meaningful" cross-examination of Foster, for two reasons: (1) Foster recalled numerous facts relevant to the case, and his recollection of those facts was explored at length on cross-examination; and (2) on matters as to which Foster had suffered a memory loss, respondent exploited his memory loss and used it to show the jury why Foster's out-of-court identification should be given little weight. Specifically, Foster testified at great length concerning events contemporaneous with the assault and the circumstances under which he gave his out-of-court statement. Foster vividly recalled his actions upon arriving at work on the morning of April 12, 1982. He explained how he arrived at the prison, picked up his keys and a body alarm at the K unit, and went to the J unit where he made a pot of coffee, recorded the inmate count, and made other entries in the log book. He told how a superior called and instructed him to release the prisoners in the unit for breakfast, and he described how, in complying with the instruction, he unlocked each range of cells and went to the TV room to check it for contraband. J.A. 20-26, 33-34. With respect to the assault itself, Foster testified that, after entering the J unit television room, he felt an impact on his head. Although he could not remember the identity of the person who struck him, he recalled that his assailant was armed with what seemed to be a pipe, that he jammed his right middle finger into his assailant's chest, and that, following the assault, he looked down and saw blood on the floor (J.A. 25-27, 34-35). Foster also recalled the precise injuries he sustained in the assault, including a fractured skull, cuts, bruises, a broken arm, loss of hearing and memory, and injuries to the left eye and right middle finger (J.A. 28-29). /18/ In addition, Foster possessed a clear recollection of his conversation with Agent Mansfield in which he identified respondent. He specifically recalled telling Mansfield that "after I was hit I looked down and saw blood on the floor, and jammed my finger into Owens' chest, and said, 'That's enough of that,' and hit my alarm button" (J.A. 31). He also testified that at the time he spoke to Mansfield, there was no doubt in his mind about what had happened. Finally, he remembered that Mansfield had asked him to identify his assailant from a group of photographs and that he had selected respondent's photograph. J.A. 31-32. As to those matters on which Foster suffered a failure of recollection, respondent brought out Foster's lapses in memory through detailed cross-examination (J.A. 33-48) and made effective use of them in summation (J.A. 80-85). For example, respondent's attorney elicited on cross-examination that Foster could not remember (1) seeing his assailant (J.A. 35), (2) telling Mansfield that he had been struck on the head six times (J.A. 45), or (3) making various statements attributed to him that were inconsistent with his identification of respondent as his assailant. /19/ Foster also acknowledged on cross-examination that many people, including his wife, had told him that they had visited him during his hospital stay, but that he did not remember seeing or speaking to anyone except Agent Mansfield (J.A. 41-42). During summation, respondent's attorney emphasized the evidence of memory loss that she had elicited during cross-examination. She maintained that Foster was struck from behind and, therefore, could not have seen his assailant. She also argued that by Foster's own admission, "he recall(ed) saying that (respondent) assaulted (him), but doesn't know why he said that. All of a sudden the name popped into his head, but he does not know why he identified him" (J.A. 80). In addition, she cited the prior statement by Foster, as reflected in medical records, in which he asked whether "Leo" was his assailant, and she pointed to evidence at the trial that there was an inmate in the J unit named Leo Damello (J.A. 83). She theorized, based on Foster's testimony, that "the evidence in this case shows, if anything, * * * that someone must have suggested (respondent's) name to Mr. Foster, because he did not see the assailant. There is no way that he would be able to identify him" (J.A. 81). These arguments undermining Foster's out-of-court identification would not have been possible if Foster had not been present at trial and subjected to thorough cross-examination. In short, the jury had an adequate basis for assessing Foster's credibility and the accuracy of his pretrial statement identifying respondent as his assailant. In addition to being able to observe Foster's demeanor while testifying, the jury was afforded the opportunity to assess his ability to recall the events in question. Thus, even if the Sixth Amendment required that a witness's recollection be sufficient to ensure "effective" cross-examination, respondent's Sixth Amendment rights were not violated. /20/ II. THE ADMISSION OF FOSTER'S OUT-OF-COURT IDENTIFICATION DID NOT VIOLATE THE FEDERAL RULES OF EVIDENCE In addition to ruling that the introduction of Foster's pretrial identification of respondent violated the Confrontation Clause, the court of appeals also held (Pet. App. 9a-11a) that the evidence was improperly admitted under Fed. R. Evid. 801(d)(1) (C). The court did not reverse on that ground because it found the error to be harmless. Although we agree with the court of appeals that any error in the application of Rule 801(d)(1)(C) was harmless, we disagree with the court of appeals on a more basic issue. We believe the court's ruling was incorrect on the merits and that the district court properly held that Foster's pretrial identification was admissible under the Rule. 1. Under Rule 801(d)(1)(C), a prior statement of identification is categorized as nonhearsay when "(t)he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement." As we have noted, Foster was available for, and subject to, cross-examination on every aspect of his direct testimony, including his testimony about having made a statement identifying respondent as his assailant. Rule 801(d)(1)(C) does not require that the declarant recall the details of the prior identification or the underlying event that gave rise to the identification, as long as he is subject to cross-examination -- that is, as long as he is capable of understanding the proceedings, he testifies at trial, and the court does not improperly curtail the defendant's efforts to cross-examine him. Thus, even when witnesses have claimed a memory loss concerning the prior statement itself, the courts have held that the prior statement may nonetheless be admitted under Rule 801(d)(1). See, e.g., DiCaro, 772 F.2d at 1323-1325; United States v. Baker, 722 F.2d at 347-348 & n.8. The legislative history of the Rule is consistent with that interpretation. The discussion of the Rule on the floor of the House indicates that in enacting Rule 801(d)(1)(C), Congress contemplated that, when a witness makes a pretrial identification of the defendant and then refuses to acknowledge that identification in court, his prior statement should nonetheless be admissible through third parties. See 121 Cong. Rec. 31866-31867 (1975) (remarks of Rep. Hungate); id. at 31867 (remarks of Rep. Wiggins); United States v. Elemy, 656 F.2d 507, 508 (9th Cir. 1981). 2. Even if the Rule is construed to require that the declarant have sufficient recollection of prior events to be able to respond to detailed cross-examination, the Rule requires only that the declarant be subject to cross-examination "concerning the statement" of identification; it does not provide that the witness must also be subject to cross-examination concerning the "subject matter" of the statement. A comparison with the language in Fed. R. Evid. 804(a) is particularly instructive. Rule 804(a), which adopts numerous exceptions to the hearsay rule based upon the declarant's "unavailability as a witness," defines "unavailability" to include situations in which the witness "testifies to a lack of memory of the subject matter of his statement" or "persists in refusing to testify concerning the subject matter of his statement." Fed. R. Evid. 804 (a)(2) and (3) (emphasis added). As one leading authority has observed, "(h)ad there been an intention in (Fed. R. Evid.) 801(d)(1) to require the witness to be cross-examinable concerning the matter asserted in his statement, Rule 804(a) demonstrates that the framers had the language to do it." 4 D. Louisell & C. Mueller, Federal Evidence Section 421, at 213-214 n.64 (1980); see also id. Section 419, at 179-180. /21/ Accordingly, a witness's memory loss concerning events to which pretrial identification relates does not preclude the admission of that out-of-court identification. 3. The most compelling answer to the court of appeals' construction of Rule 801(d)(1)(C) is that it would be squarely contrary to the purpose for which the Rule was devised. In 1975, shortly after the adoption of the Federal Rules of Evidence, Congress amended Rule 801(d)(1) by adding subsection (C) to permit the introduction of prior out-of-court identifications. See 4 D. Louisell & C. Mueller, supra, Section 410, at 46-47; H.R. Rep. 94-355, 94th Cong., 1st Sess. 2-3 (1975). In discussing the purpose of the proposed amendment, the House Report observed (id. at 3) that out-of-court identifications are "particularly important in jurisdictions where there may be a long delay between arrest or indictment and trial." It noted that "(a)s time goes by, a witness' memory will fade and his identification will become less reliable." The proposed Rule therefore was designed to "(make) sure that delays in the criminal justice system do not lead to cases falling through because the witness can no longer recall the identity of the person he saw commit the crime." Ibid.; accord, S. Rep. 94-199, 94th Cong., 1st Sess. 2 (1975); 121 Cong. Rec. 31867 (1975); United States v. Ingram, 600 F.2d 260, 261 & n.* (10th Cir. 1979) (although witnesses did not identify defendant at trial, prior identification held admissible under Rule 801(d) (1)(C) because witnesses "were available at trial and were subjected to thorough cross-examination concerning their out-of-court identification statements"); United States v. Lewis, 565 F.2d 1248, 1251-1252 (2d Cir 1977) (holding that, even though witness could not make in-court identification, prior out-of-court identification admissible under the Rule; the court observed that "(i)t seems clear both from the text and the legislative history of the amended Rule that testimony concerning extra-judicial identifications is admissible regardless of whether there has been an accurate in-court identification"), cert. denied, 435 U.S. 973 (1978); United States v. Marchand, 564 F.2d 983, 996 (2d Cir. 1977), cert. denied, 434 U.S. 1015 (1978); 4 D. Louisell & C. Mueller, supra, Section 421, at 205; cf. United States v. O'Malley, 796 F.2d 891, 899 (7th Cir. 1986) (although government witness recanted prior identification and denied that defendant participated in crime, prior out-of-court identification held admissible under Rule 801(d)(1)(C) because witness "was subject to cross-examination concerning his earlier statement made before trial"). As these sources reveal, Congress's very purpose in enacting Rule 801(d)(1)(C) was to permit the introduction of out-of-court identifications in instances where witnesses have suffered a memory loss by the time of trial. The construction of the Rule advocated by respondent and adopted by the court of appeals would completely undermine that purpose by holding that statements of pretrial identification are precluded in precisely those circumstances. Thus, the district court was correct in admitting Foster's pretrial identification of respondent. Although Foster suffered a partial memory loss with regard to the assault itself, his recollection of his pretrial statement was vivid. Therefore, even if Rule 801(d)(1)(C) is construed to require that the declarant be able to recall the details of the out-of-court identification, that requirement was satisfied in this case, because Foster's clear recollection of his out-of-court identification of respondent permitted respondent to engage in meaningful and unimpeded cross-examination regarding that statement and the circumstances under which it was made. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General ROBERT H. KLONOFF Assistant to the Solicitor General JOHN F. DEPUE Attorney APRIL 1987 /1/ A roll call sign-up sheet of the Moors' meeting confirmed that a meeting had in fact occurred and that respondent had been in attendance (6 Tr. 144-146). /2/ The court of appeals indicated (Pet. App. 22a-23a) that the credibility of the inmate witnesses was open to question because of their criminal records and their knowledge that they might benefit from cooperating with the government. Inmate witnesses, of course, always have prior records and an incentive to cooperate. The court also noted (id. at 23a) that there were inconsistencies among the inmates' accounts of the crime and that some of the inmates had themselves given prior inconsistent statements. The inmates, however, testified that a prisoner who cooperates with the authorities runs the risk of repercussions from fellow prisoners (1 Tr. 250-252; 3 Tr. 30-31; 4 Tr. 144, 159), a factor that may explain the inmates' initial reluctance to reveal the true extent of their knowledge concerning the assault. While the testimony of the inmates differed on certain details, it did not differ in ways that would have shown that some or all of the inmates must have been lying. Moreover, the inmates' testimony was corroborated by other evidence, including physical evidence introduced at the trial that was not subject to fabrication. /3/ At the commencement of the trial, respondent's attorneys objected to the introduction of evidence concerning Foster's out-of-court identification. They stated that when they interviewed Foster, he said he could not recall the identity of his assailant and could not remember why he told Mansfield that it was respondent. They argued that Foster therefore was not subject to cross-examination concerning his out-of-court identification. J.A. 5-12. The district court overruled the objection and denied respondent's motion for a hearing concerning Foster's present recollection (J.A. 10-12). The court of appeals stated (Pet. App. 7a n.4) that the government's offer of proof differed substantially from Foster's testimony at trial, and it suggested that Foster's memory loss was far worse than the offer of proof had indicated. In fact, however, the offer of proof was accurate, as respondent conceded below (Owens C.A. Br. 7). /4/ At one point during cross-examination, Foster acknowledged that he did not know whether his identification was based on statements that hospital visitors may have made to him (J.A. 45). During subsequent cross-examination, however, he testified that he "doubt(ed)" whether his identification was based on something other than his personal observation of his assailant (J.A. 46-47). /5/ Judge Boochever indicated (Pet. App. 24a-25a) that he would have remanded the case to the district court for a determination under Fed. R. Evid. 602 whether Foster had actually seen his assailant at the time of the incident. /6/ Although the Confrontation Clause could be read to require the exclusion of every statement made by a declarant who is not present at trial, that interpretation "would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme" (Roberts, 448 U.S. at 63). As this court has made clear, a variety of out-of-court statements are considered to carry sufficient "indicia of reliability" to be admissible even in the absence of cross-examination. See Lee v. Illinois, No. 84-6807 (June 3, 1986), slip op. 12-13; Roberts, 448 U.S. at 64-65; Mancusi v. Stubbs, 408 U.S. 204, 213-216 (1972); Dutton v. Evans, 400 U.S. 74 (1970). /7/ The objection was not to the use of out-of-court statements per se, but only to their use without the declarant being present at trial. See Green, 399 U.S. at 157 ("So far as appears, in claiming confrontation rights no objection was made against receiving a witness's out-of-court depositions or statements, so long as the witness was present at trial to repeat his story and to explain or repudiate any conflicting prior stories before the trier of fact."). /8/ The history of the Confrontation Clause is discussed at length in our brief in United States v. Inadi, No. 84-1580 (Mar. 10, 1986). A copy of that brief has been provided to counsel for respondent. /9/ On remand, the California Supreme Court concluded that Porter's statement to the police was properly admitted because Porter testified at trial under oath, he was subject to cross-examination, and the jury was able to observe his demeanor. People v. Green, 3 Cal. 3d 981, 479 P.2d 998, 92 Cal. Rptr. 494 (1971), cert. dismissed, 404 U.S. 801 (1972). /10/ The court of appeals stated (Pet. App. 18a) that Justice Harlan repudiated his approach in Green a year later in Dutton v. Evans, 400 U.S. 74, 93-100 (1970) (concurring opinion). That characterization misconstrues Justice Harlan's position in those two cases. In Evans, Justice Harlan indicated that he was retreating from his suggestion in Green -- not pertinent here -- that the government has an obligation to produce witnesses who are reasonably available. His revised view was that the Confrontation Clause simply gives a defendant an opportunity to cross-examine those witnesses who are actually produced by the government, and that the admission of hearsay when the declarant is not produced should be evaluated under a due process standard of fundamental fairness. That revised view -- which reduced the government's obligations under the Confrontation Clause -- can in no way be read as a repudiation by Justice Harlan of his position in Green that a witness's memory loss has no Sixth Amendment significance. The court of appeals also stated (Pet. App. 18a) that this Court rejected Justice Harlan's approach in a footnote in Roberts, 448 U.S. at 66 n.9. The cited footnote in Roberts, however, does not constitute a rejection of Justice Harlan's general approach to the Confrontation Clause, much less his approach to the particular problem presented here -- the role of a witness's memory loss in Confrontation Clause analysis. Rather, the Court was simply noting that it had not adopted Justice Harlan's general thesis that the "Confrontation Clause requires only that the prosecution produce available witnesses" (id. at 67 n.9). Indeed, consistent with Justice Harlan's approach, the Court in Roberts declined to consider whether the questioning of the witness at issue in this case, which occurred not at trial but at a preliminary hearing, "surmount(ed) some inevitably nebulous threshold of 'effectiveness'" (id. at 73 n.12). It held (ibid.) that in all but "extraordinary cases," such as where a question of ineffective assistance of counsel is involved, "no inquiry into 'effectiveness' is required." Moreover, in Delaware v. Fensterer, a post-witness's memory loss could ever amount to a Confrontation Clause violation. /11/ The plurality in Ritchie ultimately concluded that the case should be remanded on due process grounds so that the trial court could review the agency's file in camera to ascertain whether there was any exculpatory material (Ritchie, slip op. 15-20). Justice Blackmun did not join in the plurality's analysis of the Confrontation Clause issue, but he agreed with the plurality that the case should be remanded for an in camera review of the file (slip op. 1-5 (Blackmun, J., concurring)). Justices Brennan and Marshall disagreed with the plurality's analysis of the confrontation question (slip op. 1-7 (Brennan, J., dissenting)); Justices Stevens and Scalia expressed no view on that issue (slip op. 1-7 (Stevens, J., dissenting)). /12/ The Court in Green noted (399 U.S. at 161 (emphasis added)) that none of the Court's Confrontation Clause decisions "requires excluding the out-of-court statements of a witness who is available and testifying at trial, " and that most of its cases have involved "precisely the opposite situation" of statements "admitted in the absence of the declarant and without any chance to cross-examine him at trial." /13/ Indeed, as Fensterer illustrates, even the opinion of an expert (or, for that matter, of a character witness) is likely to be based on specific events that occurred prior to trial. /14/ As this Court has recognized, the jury obviously cannot "be whisked magically back in time to witness a gruelling cross-examination of the declarant as he first gives his statement" (Green, 399 U.S. at 160). /15/ Although the court of appeals concluded (Pet. App. 12a-13a n.7) that Fensterer was inapplicable to out-of-court statements, it never explained the legal or logical basis for such a distinction. Indeed, the court of appeals' distinction of Fensterer is particularly unpersuasive in the present case, since Foster had a vivid recollection of his out-of-court statement to Mansfield and recounted it to the jury from the witness stand. See generally Green, 399 U.S. at 164 ("(T)he Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements * * *."); Morgan, supra, 62 Harv. L. Rev., at 196 (where witness affirms out-of-court statement under oath and subject to cross-examination, there is no "danger inherent in hearsay"). /16/ Accord, e.g., United States v. Baker, 722 F.2d 343, 347-349 (7th Cir. 1983) (no Confrontation Clause violation in admitting witness's prior statement identifying defendant, even though witness could not recall making that identification, since defendant was "free to cross-examine the out-of-court declarant" about the circumstances under which the statement was given), cert. denied, 465 U.S. 1037 (1984); United States v. Russell, 712 F.2d 1256, 1258 (8th Cir. 1983) (admission of grand jury testimony of witness claiming no recollection of event at issue did not violate Confrontation Clause since declarant testified and was subject to full and effective cross-examination); Vogel v. Percy, 691 F.2d 843, 845-848 (7th Cir. 1982) (admission of out-of-court statement as to which declarant suffered memory loss upheld where defendant was free to cross-examine declarant concerning circumstances under which it was made); United States v. Distler, 671 F.2d 954, 959 (6th Cir.) (introduction of prior statements of witnesses suffering memory loss did not violate Confrontation Clause because declarants testified at trial and were subject to cross-examination), cert. denied, 454 U.S. 827 (1981); United States v. Rogers, 549 F.2d 490, 498-500 (8th Cir. 1976) (extrajudicial statement properly admitted even though declarant could not recall its contents, where declarant was available for cross-examination on the question whether statement had been made), cert. denied, 431 U.S. 918 (1977); United States v. Infelice, 506 F.2d 1358, 1363 (7th Cir. 1974) (rejecting Sixth Amendment challenge based on witness's memory loss and noting that, for Confrontation Clause purposes, memory lapse is not "comparable" or "equivalant" to a witness's refusal to answer questions or to a denial of the right to examine him), cert. denied, 419 U.S. 1107 (1975). /17/ One court of appeals has rejected the case-by-case approach to the Confrontation Clause analysis of cases involving memory loss and has adopted Justice Harlan's per se approach. United States ex rel. Thomas v. Cuyler, 548 F.2d 460 (3d Cir. 1977). /18/ As the dissenting judge pointed out (Pet. App. 26a), the court of appeals erred in stating (id. at 15a n.9) that Foster's memory loss as to the events surrounding the assault was "actual and complete." /19/ Respondent was permitted to bring to the jury's attention the substance of those out-of-court statements attributed to Foster in which respondent was not identified. E.g., J.A. 40-41 (cross-examination of Foster and extrinsic evidence of Foster's statement, recorded in medical records, in which he inquired whether his attacker was "Leo"); J.A. 44 (cross-examination of Foster about statement to FBI Agent Mansfield that his attacker had a name that rhymed with "coma"); J.A. 59 (testimony of Dr. Butterfield that when Foster arrived at the hospital, he indicated that he did not know the identity of his assailant); J.A. 62 (testimony of Dr. Butterfield that medical records reflected Foster as having told medical personnel that "one of those clowns must have hit me"). /20/ We note that there is some irony in the court of appeals' holding that the Confrontation Clause was violated in this case. As the evidence at trial demonstrated (J.A. 49-59), and as respondent conceded below (Owens C.A. Br. 6 n.1), Foster's memory loss was caused by the assault itself. And the Ninth Circuit, in finding that the violation of Fed. R. Evid. 801(d) (1)(C) was harmless, essentially concluded that there was substantial independent evidence -- wholly apart from Foster's pretrial identification of respondent -- that respondent committed the assault (Pet. App. 12a). Yet it is well established that "when confrontation becomes impossible due to the actions of the very person who would assert the right, logic dictates that the right has been waived." United States v. Thevis, 665 F.2d 616 (5th Cir.), cert. denied, 456 U.S. 1008 (1982). Accord, e.g., Reynolds v. United States, 98 U.S. 145, 158 (1878); Steele v. Taylor, 684 F.2d 1193, 1201-1203 (6th Cir. 1982), cert. denied, 460 U.S. 1053 (1983); Black v. Woods, 651 F.2d 528, 531-532 (8th Cir.), cert. denied, 454 U.S. 847 (1981). In this case, even putting aside Foster's pretrial identification, there is ample evidence linking respondent to the assault (see Steele, 684 F.2d at 1202 (applying preponderance standard); Thevis, 665 F.2d at 631 (applying clear and convincing standard)). While we do not urge waiver as an independent ground for rejecting respondent's Confrontation Clause argument in this case, the circumstances leading to Foster's memory loss underscore the point that it is not the government or the court that was responsible for any impairment of respondent's ability to engage in effective cross-examination of Foster, a factor that has been identified a significant in Confrontation Clause analysis. See Green, 399 U.S. at 162; id. at 188-189 & n.22 (Harlan, J., concurring). /21/ This Court recently recognizes that "'(w)here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion" (Rodriguez v. United States, No. 85-5504 (Mar. 23, 1987), slip op. 4, quoting Russello v. United States, 464 U.S. 16, 23 (1983)).