UNITED STATES OF AMERICA, PETITIONER V. JAMES JOSEPH OWENS No. 86-877 In the Supreme Court of the United States October Term, 1986 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Reply Memorandum for the United States 1. The court of appeals held that respondent's rights under the Confrontation Clause were violated by the in-court testimony of the assault victim, John Foster. Although Foster testified at length at trial, and although respondent's cross-examination of Foster was not restricted by the trial court, the court of appeals found that Foster's partial memory loss prevented him from being adequately cross-examined. As we explained in our petition (at 10-17), the court's ruling raises issues of great practical importance that have been identified but never resolved by this Court. In addition, the Ninth Circuit's opinion creates a conflict among the circuits concerning the constitutional significance, if any, of a witness's memory loss. Our submission is 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 (i) he does not assert his Fifth Amendment privilege or otherwise refuse to testify, (ii) he is capable of understanding the proceedings, and (iii) the scope of cross-examination is not improperly restricted by the trial court. Respondent's principal contention in opposing review (Br. in Opp. 1, 4, 20) is that the court of appeals' decision is merely a routine application of this Court's decisions in Ohio v. Roberts, 448 U.S. 56 (1980), and Dutton v. Evans, 400 U.S. 74 (1970). That contention is without merit. In both Roberts and Dutton, the issue was whether out-of-court statements were sufficiently reliable to be admissible in the absence of any cross-examination of the declarant at trial. In Roberts, the Court held that the admission of preliminary hearing testimony as a substitute for live testimony does not offend the Confrontation Clause if the evidence is reliable and the declarant is unavailable. The issue arose only because the declarant could not be found at the time of trial (448 U.S. at 60, 66). Similarly, in Dutton the Court held that under the circumstances of that case, the admission of an accomplice's out-of-court statement implicating the defendant did not violate the Confrontation Clause. The plurality reasoned that the accomplice's statement was sufficiently reliable to be admitted in the absence of any cross-examination. /1/ As in Roberts, the declarant was not present at trial (see 400 U.S. at 88 n.19). The issue in the present case, by contrast, is whether the Confrontation Clause is violated when the declarant is cross-examined at trial but acknowledges a partial memory loss. Neither Roberts nor Dutton purported to decide this very different question. /2/ Moreover, the court of appeals itself indicated that the Sixth Amendment issue raised in the case had been identified but never resolved by the Supreme Court (Pet. App. 12a). And despite respondent's claim that the court of appeals "merely applied straightforward principles of law established by this Court" (Br. in Opp. 11), he fails to cite a single case from this Court or any other court of appeals holding that the Confrontation Court is violated by the in-court testimony of a witness who has suffered a partial memory loss. Respondent also invokes Roberts in making the erroneous argument (Br. in Opp. 12) that the conflict among the circuits that we identified in our petition (at 13-16) is not a live one. Respondent concedes (Br. in Opp. 12, 17) that the Third Circuit, in United States ex rel. Thomas v. Cuyler, 548 F.2d 460 (1977), endorsed Justice Harlan's view in California v. Green, 399 U.S. 149, 188 (1970) (concurring opinion), that memory loss has no Sixth Amendment consequence, and that the court of appeals in the present case explicitly rejected that view. /3/ He contends (Br. in Opp. 12-13), however, that Cuyler was effectively overruled by Roberts. /4/ Specifically, he relies (Br. in Opp. 13) on a footnote in Roberts (448 U.S. at 66-68 n.9) that discusses Justice Harlan's concurring opinions in Green and Dutton. As we explained in our petition (at 14 n.4), however, that footnote 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 has 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 Delaware v. Fensterer, No. 85-214 (Nov. 4, 1985), a post-Roberts case, the Court (slip op. 6) explicitly left open the question whether a witness's memory loss could ever amount to a Confrontation Clause violation. In short, nothing in Roberts casts doubt on the validity of the reasoning in Cuyler. /5/ Respondent further contends (Br. in Opp. 14) that in Dutton Justice Harlan himself abandoned his approach in Green on the issue of memory loss. But as we explained in our petition (at 13 n.4), Justice Harlan indicated in Dutton (400 U.S. at 95) that he was retreating from his suggestion in Green that the government has an obligation to produce witnesses who are reasonably available. This 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. Respondent is similarly incorrect in asserting (Br. in Opp. 19-20) that this Court's decision in Delaware v. Fensterer, supra, has no bearing on the issues presented here. Respondent claims (Br. in Opp. 19) that Fensterer is "premised" on the fact that no out-of-court satatement was involved, and that the case therefore is limited by its terms to that context. But as we noted in our petition (at 12), both Fensterer (slip op. 6) and Green (399 U.S. at 168-169) raised but explicitly 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 memory loss. /6/ The present case gives the Court the opportunity to resolve that important question. /7/ In sum, despite respondent's contention that the court of appeals simply applied well settled principles to the facts of this case, we submit that the court of appeals has given the Confrontation Clause a meaning that it was never intended to have. Review by this Court is necessary to correct the Ninth Circuit's erroneous Sixth Amendment analysis, to answer the question left open in Fensterer and Green, and to resolve the conflict among the circuits. 2. With respect to the second issue presented in our petition -- namely, the court's ruling that Foster's testimony violated Fed. R. Evid. 801(d)(1)(C) -- respondent does not seriously dispute our submission (Pet. 19-20) that the court's interpretation is contrary to the literal language of the rule. /8/ Rather, respondent contends (Br. in Opp. 21) that the government has adopted "a very narrow reading of the legislative history." But as we noted in our petition (at 21-22), and as prior cases from other circuits have indicated (see ibid. (citing cases) ), the purpose of Rule 801(d)(1)(C) is to permit out-of-court identifications when the declarant is present in court, even when he has suffered a memory loss concerning the underlying events. The court of appeals' decision frustrates that legislative intent. For the foregoing reasons and those given in the petition, it is respectfully submitted that the petition for a writ of certiorari should be granted. CHARLES FRIED Solicitor General JANUARY 1987 /1/ Justice Harlan concurred in the result. Viewing the case as involving due process, not the Confrontation Clause, he concluded that there was no due process violation. 400 U.S. at 93-100. /2/ Indeed, in Roberts, the Court summarized its holding by stating (448 U.S. at 66 (emphasis added)) that "when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate 'indicia of reliability.'" /3/ Respondent does suggest (Br. in Opp. 13 n.10) that a subsequent Third Circuit case, United States v. Bailey, 581 F.2d 341, 350-351 & n.15 (1978), questioned the validity of Cuyler. That suggestion is clearly wrong. The court in Bailey, after noting that its resolution of the case avoided difficult Confrontation Clause issues arising from a lack of cross-examination, cited Cuyler and several other cases in a footnote, preceded only by the word "See." The court's citation of Cuyler can in no way be read to suggest that the validity of that case was being questioned. /4/ Respondent (Br. in Opp. 13 n.10) similarly dismisses as a pre-Roberts case the Colorado Supreme Court's adoption of Justice Harlan's approach in Gree (People v. Pepper, 193 Colo. 505, 568 P. 2d 446 (1977) (cited at Pet. 14)). Respondent does not acknowledge the decision in Robinson v. State, 102 Wis. 2d 343, 353, 306 N.W. 2d 668, 673 (1981) (cited at Pet. 14), a post-Roberts case, in which the Wisconsin Supreme Court discussed with approval Justice Harlan's approach to memory loss in Green and indicated that it "might well be persuaded to follow its reasoning in the appropriate case." /5/ In addition to Cuyler, we cited several other cases, decided both before and after Roberts, in which the reasoning of the courts is at odds with that of the Ninth Circuit in the present case (Pet. 14-16). Two of the principal pre-Roberts cases are dismissed by respondent on the basis of that chronological fact (Br. in Opp. 14). As noted above, however, respondent's reliance on Roberts is misplaced. Respondent also contends that, apart from Cuyler, all the cases cited in our petition are "in accord (with) the basic legal principles at stake" (Br. in Opp. 16). In fact, however, the reasoning in those decisions is in accord with the dissent in the present case (see Pet. App. 29a), not with the majority. The majority found a constitutional violation by erroneously focusing on the quantity and quality of "information" concerning the assault that Foster was able to provide (see Pet. App. 16a). By contrast, in the cases cited in the petition, the courts found no Sixth Amendment violation, notwithstanding severe (and in some cases total) memory loss concerning the relevant facts, because the witnesses were subject to cross-examination and the juries therefore were able to evaluate their credibility. See, e.g., United States v. DiCaro, 772 F.2d 1314, 1327 (7th Cir, 1985) (holding that despite witness's severe memory lapse, there was no denial of the right to confrontation because the witness was "questioned extensively on the stand concerning both his claim of amnesia and other matters relevant to the credibility of his prior grand jury testimony"), cert. denied, No. 85-1007 (Mar. 24, 1986); Vogel v. Percy, 691 F.2d 843, 846 (7th Cir. 1982) (noting that "(a)though petitioner's cross-examination * * * might have been more fruitful if (the witness) had not suffered a memory lapse as to his prior inconsistent statement, the petitioner was afforded adequate opportunity to test (his) lack of recall"). See also Pet. 14-15 (discussing cases). /6/ As indicated in our petition (at 11), we believe that the reasoning in Fensterer should apply in the present case. In our view, there is no analytical distinction, for confrontation purposes, between the admission of the results of an out-of-court scientific analysis, when the witness has forgotten how he derived those results, and the admission of an out-of-court identification, when the witness does not fully remember the underlying incident. The critical factor in both Fensterer and the present case is that the defense was able to "probe and expose" the witness's memory loss and to "call() to the attention of the factfinder the reasons for giving scant weight to the witness' testimony" (slip op. 6-7). /7/ Respondent makes several additional claims, all of which lack merit. First, while respondent does not deny that Foster had a detailed memory of the out-of-court identification and of the events leading up to the assault, he contends (Br. in Opp. 5) that Foster's only memory of the assault itself was that he entered the TV room, was struck on the head, and looked down and saw blood. Respondent overlooks several important facts. For instance, Foster recalled that he injured his finger by jamming it into his assailant's chest (2 Tr. 100), a fact that was confirmed by the medical evidence (id. at 135). Foster also recalled that the weapon used to strike him was a pipe (id. at 90-91). Respondent claims that we misstated the record on the latter point (Br. in Opp. 5 n.3), but the testimony confirms the accuracy of our description (2 Tr. 90-91): Q. (By the prosecutor): Do you remember today, as you think back to April 12 of 1982, what might have been used to hit you in the head? A. (By Foster): Thinking back, it did have to be a pipe. That is about the right size. I have seen so many of them around, picked up so many that it seems to me that that is what it would be. Second, respondent makes the erroneous assertion (Br. in Opp. 3 n.2 (citing Pet. 17 n.6)) that we have conceded that without Foster's testimony the government's case was weak. We made no such concession. The point we were making in the footnote cited by respondent was that under the case law, respondent should have been barred from asserting a denial of his confrontation rights, since he caused the memory loss about which he now complains. We noted that some courts require a preponderance of evidence on causation, while other courts require clear and convincing evidence. Far from conceding the weakness of our case, we simply pointed out that under either standard, respondent should have been prohibited from asserting a confrontation violation. Pet. 17-18 n.6. In any event, if respondent is of the view that our petition conceded the weakness of the government's evidence at trial, then we cannot understand why he also criticizes us (Br. in Opp. 2-3) for purportedly implying that our evidence was strong. Third, respondent dismisses as "absurd" (Br. in Opp. 17) our concern (Pet. 10, 18-19) that the Ninth Circuit's opinion may invite constitutional challenges in cases involving the past recollection recorded exception to the hearsay rule. But as we indicated (see Pet. 18-19 (citing cases)), defendants have frequently tried to make such arguments in the past. The Ninth Circuit's holding that a witness's memory loss has constitutional significance may breathe new life into such arguments. /8/ As we explained (Pet. 20), the rule requires only that the witness be subject to cross-examination "concerning the statement," not concerning "the subject matter of (the) statement" (compare Fed. R. Evid. 804(a)).