Sixth Amendment -- The Confrontation Clause, Witness Memory Loss and Hearsay Exceptions: What are the Defendant's Constitutional and Evidentiary Guarantees Procedure or Substance?

• NCJ Number: 116482
• Journal: Journal of Criminal Law and Criminology Volume: 79 Issue: 3 Dated: (Fall 1988) Pages: 866-898
• Author(s): C L Seltz
• Date Published: 1988
• Length: 23 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This article discusses a recent Supreme Court decision holding that a trial court may admit prior out-of-court identifications when the witness is unable to recall the basis for his or her identification and concluding that this does not violate the sixth amendment confrontation clause if the witness then testifies at trial and is subject to cross examination.

Abstract

The Court also held, in United States v. Owens, that the confrontation clause guarantees only the opportunity for cross examination and not its success. Additionally, the Court held that the admission of prior, out-of-court identifications do not violate Federal Rule of Evidence 802 if the witness is subject to cross-examination concerning the statement. The article argues that the Court's reasoning in the Owens case is wrong and does not accurately reflect legislative history or precedent. The Owens case holding will thus increase the possibility that defendants may be convicted by out-of-court statements given without an oath and without recollection of either the basis for the identification or the circumstances surrounding the incident. 256 footnotes.