EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, October 13, 2010

My Memory Is Failing Me: California Court Finds Right To Confrontation Preserved Despite "Forgetful" Witness

California Evidence Code Section 240(a)(3) states that

Except as otherwise provided in subdivision (b), "unavailable as a witness" means that the declarant is any of the following:

(3) Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.

And the consequence of a declarant being unavailable as a witness is that certain hearsay statements are admissible under certain exceptions to the rule against hearsay. So, let's say that a declarant takes the witness stand at a criminal defendant's trial and testifies to memory loss. That declarant will be deemed "unavailable" under Section 240(a)(3), potentially allowing for the admission of some of his prior hearsay statements. But does the admission of such statements violate the defendant's rights under the Confrontation Clause? According to the recent opinion of the Court of Appeal, First District, Division 1, California, in In re T.G., 2010 WL 3898052 (Cal.App. 1 Dist. 2010), the answer is "no." As a general proposition, I agree, but I disagree with the court's conclusion in the case before it. 

In In re T.G., T.G. appealed from a jurisdictional order sustaining charges that he participated in the commission of an armed robbery and attempted to dissuade the victim from testifying against him. That victim was Miguel G., and at trial, he identified one of his robbers, but, when the prosecutor asked him to identify the second robber, he claimed he no longer remembered who the second person was. Thereafter,

The prosecutor got Miguel to admit that when questioned by police on the night of the robbery, he had (1) identified T.G. as the second robber, (2) provided a physical description of the second robber and description of his clothes that matched T.G. when he was apprehended a short time later, (3) pointed out T.G. as the second robber to police when he spotted him walking in the neighborhood that night, and (4) had been truthful with police when he described the incident and identified the second robber.


Pressed by an openly skeptical prosecutor to explain his inability to identify T.G. as the robber at the hearing, Miguel testified, "I don't know. I just don't remember. I got hit by a car and was in a coma for three days." Miguel could not remember when the accident happened except that it was after he was robbed. The prosecution sought to develop a different theory to explain Miguel's lapse of memory-his fear of T.G. taking retribution against him or his family for testifying against him. Miguel admitted that T.G. had called him and threatened him approximately three times since the robbery, and that friends of T.G. had also threatened him on the telephone and in person.

In his appeal, T.G. claimed that the admission of Miguel's prior statements violated his rights under the Confrontation Clause because Miguel was "unavailable" as a witness. In rejecting this argument, the court cited to the opinion of the United States Supreme Court in United States v. Owens, 484 U.S. 554 (1988), for the proposition that "Although the right of confrontation requires that an accused receive 'an adequate opportunity to cross-examine adverse witnesses'..., it does not protect against testimony that is 'marred by forgetfulness, confusion, or evasion.'"

Now, I certainly agree with the court that if Miguel indeed were suffering from memory loss, he was "unavailable" for purposes of the rule against hearsay but "available" for cross-examination for purposes of the Confrontation Clause. But that's not what the trial court found. According to the appellate court, "In this case, the trial court, the prosecution, and the defense itself all came to the conclusion that Miguel's claim of memory loss was fabricated."

This being the case, the court should have found that Miguel was not "unavailable" under California Evidence Code Section 240(a)(3). Instead, it should have required him to render complete testimony or be held in contempt of court. Because the court did not do so, I think that T.G.'s rights under the Confrontation Clause were violated.



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