UNITED STATES OF AMERICA, PETITIONER V. JAMES JOSEPH OWENS No. 86-877 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. TABLE OF CONTENTS Opinion below Jurisdiction Constitutional provision and rule involved Question presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C OPINION BELOW The opinion of the court of appeals (App., infra, 1a-30a) is reported at 789 F.2d 750. JURISDICTION The judgment of the court of appeals (App., infra, 31a) was entered on May 12, 1986. A petition for rehearing was denied on September 2, 1986 (App., infra, 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 jurisdiction of this Court is invoked under 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 hearsay if -- (1) * * * The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is made * * * (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 a 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. The next morning, Foster arrived for work at the Lompoc prison at about 5:35 a.m. and went to his office at the prison's "J" unit. Shortly after 6:00 a.m., he was instructed to release the 90 inmates in the J unit for breakfast. After doing so, 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. 2 Tr. 80-81, 85-90, 133-136. Inmate 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 arm with a pipe. Washington also saw Curry and Davis at the scene of assault. 1 Tr. 238-249, 269. Inmate Michael Jeffrey also witnessed the incident. Jeffery was taking a shower when he heard a "gurgling, loud strangling noise." Jeffery left the shower and 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. 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. 1 Tr. 198-201; 2 Tr. 96. 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 trousers matched Foster's blood type. 2 Tr. 136; 3 Tr. 118; 4 Tr. 101-104, 253, 255-256. Washington identified the sweatshirt 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, 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. 2 Tr. 133-138, 142-143, 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" (2 Tr. 207-208). 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." Five days prior to Foster's release from the hospital, Mansfield interviewed him again. This time, according to Agent Mansfield's testimony, Foster's condition had improved substantially. Foster, who was alert and coherent, described how the attack had occurred, said that Owens was his assailant, and selected Owens' photograph from a photospread. 5 Tr. 22-25. b. Foster testified at length at the trial (2 Tr. 71-131). /1/ After describing his professional background (2 Tr. 72-79), Foster testified that he knew respondent as an inmate of the J unit (2 Tr. 80). He recalled that, on the morning of April 12, 1982, he arrived at the prison at 5:35. 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 6:00 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. 2 Tr. 81-93, 100. 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. 2 Tr. 90-92, 94-95. Foster testified that "(a)s to what I told Mr. Mansfield that day, it is very vivid in my mind" (id. at 96; see also id. at 91-92). 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" (ibid.). He indicated, moreover, that at the time he spoke to Mansfield, there was no doubt in his mind that what he 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. 2 Tr. 96-97. Foster was subjected to extensive cross-examination, during which he acknowledged that "(a)t this time he (did not) remember" seeing his assailant (2 Tr. 100). 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 noted in a medical report) who his assailant was or whether it was "Leo" (2 Tr. 102, 105, 109). 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 (2 Tr. 110-111, 114). Foster stated that the assault 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 (2 Tr. 114). 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 recall seeing his assailant and 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. 7 Tr. 59-66. 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 (App., infra, 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 (3d Cir. 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 at trial. In addition, the court of appeals held (App., infra, 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" (App., infra, 9a (emphasis in the 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 (App., infra, 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. In his view, both the Confrontation Clause and Fed. R. Evid. 801(d)(1)(C) require 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. That requirement was met because Foster had a complete recollection of his statement to Mansfield, even if he did not remember why he was able to identify respondent. App., infra, 25a-26a. Judge Boochever also observed (id. at 26a-27a, 29a) that, as a result of the cross-examination conducted by respondent's attorney at trial, the jury had an adequate basis to assess Foster's demeanor and determine whether to credit his out-of-court identification. /2/ REASONS FOR GRANTING THE PETITION This case presents issues of great practical importance. In virtually every criminal trial, prosecution witnesses experience some loss of memory concerning disputed facts. Yet, until the present case, the courts have repeatedly rejected assertions of a Confrontation Clause violation when a witness recalls some relevant facts but asserts a memory loss as to others. The Ninth Circuit's holding that Foster's partial memory loss deprived respondent of his confrontation right raises disturbing questions in a variety of previously well-settled areas. For example, the introduction of records or memoranda under the past recollection recorded exception to the hearsay rule (see Fed. R. Evid. 803(5)) -- which is applicable when the witness "has insufficient recollection (of the matter recorded) to enable him to testify fully and accurately" -- occurs on a daily basis in state and federal courts. Similarly, witnesses regularly testify about pretrial identifications of suspects under Fed. R. Evid. 801(d)(1)(C), even though they are unable to make in-court identifications at trial. And prior inconsistent statements are routinely admitted, pursuant to Fed. R. Evid. 801(d)(1)(A), notwithstanding a witness's partial memory loss concerning the prior statement. The present case calls into question the constitutionality of those previously routine evidentiary procedures. 1.a. This Court has never found a violation of the Confrontation Clause based on the loss of memory by a witness who testified at trial. As the Court held recently in Delaware v. Fensterer, No. 85-214 (Nov. 4, 1985), mere loss of memory by a witness does not deprive the defendant of his right to confront the witness; as long as the witness is available for cross-examination at trial, the Confrontation Clause is satisfied. The Court in Fensterer noted (slip op. 6) that the Confrontation Clause "includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion or evasion." The Fensterer case involved an expert for the prosecution who could not remember what scientific method he had used to reach his conclusion about an evidentiary issue in the case; the Delaware Supreme Court 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 recollection, the defendant's cross-examination of the expert was "nothing more than an exercise in futility" (id. at 964). In reversing, this Court emphasized (slip op. 6-7) that the Confrontation Clause was satisfied because the defense was able to expose the memory loss and show the jury why the expert's testimony deserved little weight. Although defense counsel in this case had the same opportunity to impeach Foster with his loss of memory about the identity of his assailant, the court of appeals, like the Delaware Supreme Court, regarded that opportunity as insufficient to satisfy the Confrontation Clause. The court of appeals sought to distinguish Fensterer on the ground that it did not involve a failure of recollection with regard to an out-of-court statement (App., infra, 12a-13a n.7). While that is so, it is not clear why that distinction should make a difference for Confrontation Clause purposes. 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 results of his prior identification of his assailant, but he was unable to recall the circumstances that led him to make that identification. Although the identification evidence and the expert testimony may stand differently for hearsay purposes, there is no reason to treat them differently for purposes of the Confrontation Clause. In each case, the defendant has the witness on the stand for cross-examination and at a minimum can exploit the witness's failure of recollection to undermine the force of his testimony with the finder of fact. In both Fensterer (slip op. 6) and this Court's prior decision 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 asserts a total or partial failure of recollection with regard to the circumstances underlying the statement. /3/ This case presents the Court with an opportunity to resolve that question by determining whether, as we believe, the analysis of Fensterer applies in the context of witnesses' out-of-court statements. b. The court of appeals' decision also creates a conflict among the circuits concerning the constitutional significance of a witness's memory loss. The court of appeals took the position that the Confrontation Clause bars the admission of an out-of-court statement by a testifying declarant if the declarant experiences a significant memory loss with regard to the subject matter of the out-of-court statement. In so holding, the court (App., infra, 17a) explicitly refused to adopt the Third Circuit's analysis in United States ex rel. Thomas v. Cuyler, supra. The Third Circuit in the Thomas case held that the admission of the witness's out-of-court statement did not violate the Confrontation Clause, even though the witness alleged a complete lack of recollection about the facts he had related in his out-of-court statement. The Confrontation Clause is not violated, the court held, as long as the witness is sworn and does not refuse to answer questions, notwithstanding an actual or feigned memory loss (548 F.2d at 463). The Third Circuit's approach was based on Justice Harlan's concurring opinion in California v. Green, 399 U.S. at 172-189. In Green, Justice Harlan stated his view (id. at 188) 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." /4/ Justice Harlan's approach has also been endorsed by the Colorado Supreme Court. See People v. Pepper, 193 Colo. 505, 568 P.2d 446 (1977) (en banc); see also Robinson v. State, 102 Wis.2d 343, 353, 306 N.W.2d 668, 673 (1981) (noting in dictum that it might well endorse Justice Harlan's approach in Green in an appropriate case). Other circuits that have addressed the issue, while not adopting the per se approach taken by the Third Circuit, have similarly refused to attach Sixth Amendment significance to a witness's total or partial memory loss. Those decisions are likewise inconsistent with the Ninth Circuit's decision in the present case. For example, 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 the witness, even though the witness claimed complete loss of memory about the facts related in the statement. Citing with approval Justice Harlan's concurring opinion in Green, the court of appeals noted that even though the witness's complete loss of memory frustrated defense inquiry regarding the truth of the prior statement, the admission of the statement nonetheless did not violate the Confrontation Clause. 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. If the defendant's constitutional claim were correct, the court added, logic would require that in such a case, every portion of the prior statement about which the declarant had suffered a loss of memory would have to be excluded. Ibid. Similarly, 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 nearly 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. 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. In other cases as well, the courts of appeals have held that an assertion of partial or complete loss of memory by a witness does not result in a Confrontation Clause violation, as long as the witness is available for cross-examination and the memory lapse does not completely deprive the jury of its ability to determine the veracity of the declarant's out-of-court statement. See United States v. DiCaro, 772 F.2d 1314, 1325-1328 (7th Cir. 1985), cert. denied, No. 85-1007 (Mar. 24, 1986); United States v. Baker, 722 F.2d 343, 347-349 (7th Cir. 1983), cert. denied, 465 U.S. 1037 (1984); United States v. Russell, 712 F.2d 1256, 1258 (8th Cir. 1983); Vogel v. Percy, 691 F.2d 843, 845-848 (7th Cir. 1982); United States v. Distler, 671 F.2d 954, 959 (6th Cir.), cert. denied, 454 U.S. 827 (1981); United States v. Rogers, 549 F.2d 490, 498-500 (8th Cir. 1976), cert. denied, 431 U.S. 918 (1977); United States v. Infelice, 506 F.2d 1358, 1363 (7th Cir. 1974), cert. denied, 419 U.S. 1107 (1975); see also People v. Green, 3 Cal.3d 981, 92 Cal. Rptr. 494, 479 P.2d 998 (1971), cert. dismissed, 404 U.S. 801 (1971); Van Hatten v. State, 666 P.2d 1047 (Alaska App. 1983); but see State v. Lomax, 227 Kan. 651, 608 P.2d 959 (1980). We agree with Justice Harlan (California v. Green, 399 U.S. at 188) that the in-court testimony of a witness under oath and in the presence of the accused satisfies the Confrontation Clause, regardless of whether that witness has suffered a loss of memory. /5/ Eliciting on cross-examination that the witness cannot remember key facts in dispute does not undercut the defendant's right of cross-examination; to the contrary, it is difficult to imagine cross-examination that is more productive than where a defense attorney demonstrates a witness's failure to recall crucial information. By physically producing the witness, the government has done everything within its power to enable the defense to confront the witness and attempt to show why he should not be believed. Because the witness is present in court, the jury can observe his demeanor and assess his credibility. Nothing in the history or purpose of the Confrontation Clause suggests that it was designed to prohibit in-court testimony by a witness who cannot recall some of the facts at issue. See generally Green, 399 U.S. at 179 (Harlan, J., concurring) (Confrontation Clause was designed "to constitutionalize a barrier against flagrant abuses, trials by anonymous accusers, and absentee witnesses"); Mattox v. United States, 156 U.S. 237, 242 (1895) (purpose of Confrontation Clause is to prevent use of depositions or ex parte affidavits in lieu of cross-examination). In any event, this is not a case in which the witness recalls virtually nothing of relevance regarding his prior statement or the underlying events. Foster, who testified at great length on both direct and cross-examination (2 Tr. 71-131), specifically recalled, inter alia: (i) various details leading up to the assault; (ii) how he was struck on the head with a metal object; (iii) the precise injuries he suffered from the assault; and (iv) how he jammed his finger into his assailant's chest (see 2 Tr. 81-96, 100). Most importantly, he recalled vividly his hospital visit by Mansfield in which he identified respondent as his assailant, and he recalled telling Mansfield that he "jammed (his) finger into Owens' chest" (2 Tr. 96-97). In those areas where Foster had in fact suffered a memory loss, defense counsel brought out the failure of his recollection in painstaking detail. And the defense was given wide latitude to impeach Foster with various inconsistent statements he had purportedly made to hospital personnel, as well as the remark he had made to Agent Mansfield in which he mentioned a name other than respondent's (2 Tr. 108-198, 113-114). The extensive and productive cross-examination enabled the defense to argue in summation that Foster's own testimony demonstrated that he had not seen his assailant but had made his pretrial identification based on what someone else had told him (7 Tr. 59-66). In short, the defense was able to "probe and expose" Foster's memory loss and to "call( ) to the attention of the fact finder the reasons for giving scant weight to the witness' testimony." Fensterer, slip op. 6-7. The Confrontation Clause requires no more. /6/ c. The Ninth Circuit's decision in this case, if permitted to stand, would have serious adverse implications for another, closely related, class of out-of-court statements: memoranda or records offered for admission under the past recollection recorded exception to the hearsay rule (Fed. R. Evid. 803(5)). Courts have consistently found no Confrontation Clause violation in the admission of statements satisfying that exception, even though the exception expressly requires that the witness have "insufficient recollection to enable him to testify fully and accurately * * * ." See, e.g., United States v. Riley, 657 F.2d 1377, 1385 n.13 (8th Cir. 1981), cert. denied, 459 U.S. 1111 (1983); United States v. Marshall, 532 F.2d 1279, 1285 n.4 (9th Cir. 1976); United States v. Smalls, 438 F.2d 711, 714 (2d Cir.), cert. denied, 403 U.S. 933 (1971); United States v. Kelly, 349 F.2d 720, 770 (2d Cir. 1965), cert. denied, 384 U.S. 947 (1966). If the Ninth Circuit is correct that the Confrontation Clause requires that a witness recall not only the making of the out-of-court statement, but also the facts contained within the statement, that exception to the hearsay rule could be subject to serious constitutional challenge. While the court of appeals did not purport to address statements falling within that or other similar exceptions to the hearsay rule, its Confrontation Clause analysis would appear, at minimum, to subject statements falling into those categories to a case-by-case analysis to determine the reliability of the statements in each instance (see App., infra, 18a-20a). Because the court's Confrontation Clause analysis has grave implications for the admissibility of any out-of-court statement in which the declarant has little or no present recollection of the facts asserted in the statement, review is warranted on this ground as well. 2. The court of appeals' decision also raises an important question under the Federal Rules of Evidence. In addition to determining that the introduction of Foster's identification of respondent violated the Confrontation Clause, the court also held (App., infra, 9a-11a) that the evidence was improperly admitted under Fed. R. Evid. 801(d)(1)(C). The court's ruling is contrary to both the language and purpose of Rule 801(d)(1)(C), and it is inconsistent with decisions of other courts of appeals construing that Rule under analogous circumstances. Moreover, since the provisions governing prior inconsistent statements (Rule 801(d)(1)(A)) and prior consistent statements (Rule 801(d)(1)(B)) use the same pertinent language, the effect of the court's decision is not limited simply to pretrial statements of identification. a. 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" (emphasis added). That language is not even arguably ambiguous; there is no mention of any requirement that the witness 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 of his statement." Fed. R. Evid. 804(a)(2) and (3) (emphasis added). As one commentator 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. Under the plain language of Rule 801(d)(1)(C), a witness's inability to recall the events to which a pretrial identification relates should not preclude the admission of evidence of that identification. /7/ The court of appeals' construction of Rule 801(d)(1)(C) is at odds not only with the plain language of the Rule but with its purpose as well. In 1975, shortly after the adoption of the Federal Rules of Evidence, Congress amended Rule 801(d)(1) by adding a new Subsection (C) to permit the introduction of prior out-of-court identifications. See 4 Louisell & 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 were "particularly important in jurisdictions where there may be a long delay between arrest or indictment and trial." It noted (ibid.) 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. Lewis, 565 F.2d 1248, 1251 (2d Cir. 1977), 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 Louisell & Mueller, supra, Section 421, at 205. The court of appeals' decision totally undermines this legislative intent. b. The court of appeals' reasoning is at odds with the construction of Rule 801(d)(1)(C) adopted by other circuits that have addressed the issue. In United States v. Lewis, supra, the Second Circuit held that, even though a witness could not make an in-court identification, her prior out-of-court identification was nonetheless admissible under the Rule. The court noted (565 F.2d at 1252) that the witness was able to recall her prior identification and to testify about the circumstances of that identification. The court then observed (ibid.) 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." Accord 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 the witnesses "were available at trial and were subjected to thorough cross-examination concerning their out-of-court identification statements"); cf. United States v. O'Malley, 796 F.2d 891, 899 (7th Cir. 1986) (although government witness at trial recanted prior identification of defendant and denied that he 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"). Under the interpretation of the Rule 801(d)(1)(C) consistently adopted by courts prior to this case, it is clear that 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 the pretrial identification was vivid. Since Foster was subject to unimpeded cross-examination "concerning (his) statement," the requirements of Rule 801(d)(1)(C) were satisfied. c. The court of appeals' analysis has implications that extend well beyond the context of prior identifications. The requirement that the declarant be subject to cross-examination "concerning the statement" also applies to prior inconsistent statements (Rule 801(d)(1)(A)) and prior consistent statements (Rule 801(d)(1)(B)). Under the Ninth Circuit's rationale, the admission of those kinds of statements would likewise be improper unless the witness is also subject to cross-examination on the "subject matter of the statement." Again, there is nothing in the language or purposes of Subsections (A) and (B) of Rule 801(d)(1) to support that interpretation. But unless the Ninth Circuit's analysis of the language of Rule 801(d)(1) is corrected, the court's decision in this case will cause confusion not only with respect to Rule 801(d)(1)(C), but also with respect to statements offered under the other two subdivisions of Rule 801(d)(1). For that reason as well, the Court should grant certiorari in this case to review the court of appeals' analysis of the federal evidentiary rule permitting the admission of prior statements by a witness. CONCLUSION The petition for a writ of certiorari should be granted. 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. DE PUE Attorney DECEMBER 1986 /1/ 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. 12/12/83 Tr. 26-33; 1 Tr. 5-6. The district court overruled the objection and denied respondent's motion for a hearing concerning Foster's present recollection (1 Tr. 3-6). The court of appeals stated (App., infra, 7a n.4) that the government's offer or proof differed substantially from Foster's testimony at trial, and it suggested that Foster's memory loss was in fact 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). /2/ Judge Boochever indicated (App., infra, 24a-25a), however, that he would remand the case to the district court for a determination under Fed. R. Evid. 602 whether Foster had personal knowledge of the identity of his assailant. /3/ In Green, a minor named Porter had informed the police that Green supplied him with drugs. At trial, Porter claimed that he could not recall the identity of his supplier. The Court upheld the admission of Porter's preliminary hearing testimony at trial because Porter was sworn and subject to cross-examination at the prior proceeding. However, the Court remanded the case to the California Supreme Court on the question whether there was error in admitting Porter's out-of-court statement to the police, noting that 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 * * * " (399 U.S. at 168). On remand, the California Supreme Court concluded that Porter's statement to the police was properly admitted because Porter testified at trial under oath, was subject to cross-examination, and the jury was able to observe his demeanor. People v. Green, 3 Cal. 3d 981, 92 Cal. Rptr. 494, 479 P.2d 998, cert. dismissed, 404 U.S. 801 (1971). /4/ The court of appeals asserted (App., infra, 18a) that Justice Harlan repudiated his approach in Green a year later in Dutton v. Evans, 400 U.S. 74, 93-100 (1970). That characterization seriously misreads Justice Harlan's position in those two cases. In Evans, Justice Harlan indicated that he was retreating from his suggestion in Green 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 where the declarant is not produced should be evaluated under a due process standard of fundamental fairness. That view 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 asserted that this Court rejected Justice Harlan's approach in a footnote in Ohio v. Roberts, 448 U.S. 56, 66 n.9(1980) (App., infra, 18a). The cited footnote in Roberts, however, does not constitute a rejection of Justice Harlan's approach to 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" (448 U.S. at 67 n.9). Indeed, in Fensterer, a post-Roberts case, the Court (slip op. 6) left open whether a witness's memory loss could ever amount to a Confrontation Clause violation. And the Ninth Circuit, in another case, has explicitly stated that Roberts did not decide the memory loss issue discussed by Justice Harlan in Green (Thomas v. Cardwell, 626 F.2d 1375, 1385 n.33 (1980), cert. denied, 449 U.S. 1089 (1981)). /5/ Our position assumes, of course, that the scope of cross-examination has not been impermissibly restricted by the trial court. Cf. Delaware v. Van Arsdall, No. 84-1279 (Apr. 7, 1986); Davis v. Alaska, 415 U.S. 308 (1974). In addition, it assumes that the witness does not assert his Fifth Amendment privilege or otherwise refuse to testify. Cf. Mayes v. Sowders, 621 F.2d 850 (6th Cir.), cert. denied, 449 U.S. 922 (1980); United States v. Fiore, 443 F.2d 112 (2d Cir. 1971), cert. denied, 410 U.S. 984 (1983). Finally, it assumes that the witness is able to understand the proceedings. Obviously, producing a witness who is physically or mentally impaired to the point that he cannot engage in a question and answer dialogue would be no different from failing to produce the witness at all. /6/ The court of appeals' finding of a Confrontation Clause violation because of a witness's memory loss is particularly disturbing in the context of this case. As the evidence at trial demonstrated (2 Tr. 133-170), and as the defense concedes (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 (App., infra, 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, 630 (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, putting aside Foster's pretrial identification, there is still a preponderance of evidence -- or even clear and convincing 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)). Given the strong independent evidence demonstrating that respondent caused Foster's loss of memory, it would be "contrary to public policy, common sense, and the underlying purpose of the Confrontation Clause" to allow him to prevail on his Confrontation Clause claim. United States v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976), cert. denied, 431 U.S. 914 (1977). /7/ When a witness testified to a memory loss concerning the prior statement itself, some courts have held that, if the memory loss is selective or apparently feigned, 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. Similarly, in enacting Rule 801(d)(1)(C), Congress contemplated that, when a witness makes a pretrial identification of the defendant and then, because of fear, refuses to acknowledge that identification in court, his prior statement should nonetheless be admissible through third parties. See United States v. Elemy, 656 F.2d 507, 508 (9th Cir. 1981) (citing 121 Cong. Rec. 31866-31867 (1975)). The present case does not raise either of those issues, however, since Foster had a full recollection of his statement to Mansfield. APPENDIX