EvidenceProf Blog

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

Sunday, September 18, 2011

Memory Loss: Supreme Court Of Mississippi Finds Confrontation Clause Violated By Admission Of Statement From Witness w/Memory Loss

In United States v. Owens, 448 U.S. 554 (1988),

the Supreme Court addressed whether a Confrontation Clause violation can be based upon a witness's loss of memory....In that case, a prison correction counselor had sustained severe memory impairment after being beaten with a metal pipe....When the counselor first spoke with the FBI, he was unable to remember his attacker's name....Weeks later, in a second interview with an FBI agent, he was able to describe the attack, name his attacker, and identify his attacker from a photo line-up....At trial, the counselor recounted what he had been doing just prior to the attack, described feeling blows to his head, and recalled seeing blood on the floor....He also vividly remembered identifying the defendant as his assailant during the second interview....On cross-examination, however, he acknowledged that he could not remember seeing his assailant at the time of the assault....And, even though he had received numerous visitors during his hospital stay, the counselor could not remember any of them except one, nor could he recall if any of those visitors had suggested that the defendant was his attacker....Defense counsel unsuccessfully sought to refresh the counselor's recollection with hospital records, which showed that he had, at one point, attributed the assault to someone other than the defendant....The Supreme Court held that no Confrontation Clause violation had occurred.....The Court explained that the opportunity for cross-examination "is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief."

So, did Owens stand for the proposition that a live body on the witness stand is all that is required to satisfy Confrontation Clause concerns? And did the Supreme Court's landmark opinion in Crawford v. Washington, 541 U.S. 36 (2004), change anything? These were the questions addressed by the recent opinion of the Supreme Court of Mississippi in its recent opinion in Goforth v. State, 2011 WL 4089967 (Miss. 2011).

In Goforth, Amanda Goforth, a former high-school teacher, was indicted on five counts of sexual battery involving one of her former students, John Doe, and was ultimately convicted on two counts and acquitted on the remaining three. Before trial, Doe's friend, Chase Rigdon, gave a written statement to police that corroborated Doe's allegations against Goforth. At trial, the prosecution called Rigdon.

A January 2010 automobile accident had substantially impaired his physical and mental conditions. He was confined to a wheelchair, and he testified that he could not remember anything that had occurred two years prior to the wreck. "I can't remember probably half my life." Rigdon said. He did not recall having known Doe or Goforth prior to the wreck. He could not remember going to Goforth's house, speaking to any officers about the alleged incident, or writing out a statement. He recognized his signature at the bottom of the statement, but he could only "guess" that the statement itself had been written by him.

Over Goforth's objection, the trial court then allowed the prosecution to admit Rigdon's written statement as a recorded recollection pursuant to Mississippi Rule of Evidence 803(5).

After she was convicted, Goforth appealed, claiming that the admission of Rigdon's written statement violated the Confrontation Clause. Her appeal eventually reached the Supreme Court of Mississippi, which began by citing to United States v. Owens. The court then indicated that in Crawford v. Washington, the United States Supreme Court noted in a footnote that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." The Mississippi Supremes then pointed out that "[i]n the wake of Owens and Crawford, many courts have found that a declarant's appearance and subjection to cross-examination at trial are all that is necessary to satisfy the Confrontation Clause, even if his or her memory is faulty." Indeed, the Supreme Court of Mississippi observed that it could be counted among their ranks based upon its opinion in Smith v. State, 25 So.3d 264 (Miss. 2009).

And indeed, the court then mused that "[i]f the Confrontation Clause requires solely that the declarant be physically present and subject to cross-examination, its demands were satisfied in this case." But the court then cited to the Seventh Circuit's opinion in Cookson v. Schwartz, 556 F.3d 647 (7th Cir. 2009). In Schwartz, an alleged victim testified that she remembered being sexually assaulted by her father but did not recall making a statement to a detective and child services investigator that was ulimately admitted at trial. In finding that the admission of this statement did not violate the Confrontation Clause, the Seventh Circuit cited to the aforementioned language from Crawford but noted that the Supreme Court elaborated on that statement just two sentences later by stating that "[T]he Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it."

So, can there be cases where there is a live body on the witness stand but the Confrontation Clause is not satisfied because the witness lacks the memory/mental capacity to defend or explain her prior statement? The Seventh Circuit did not have to answer this question, finding that the alleged victim's ability to recall the alleged abuse meant that she was sufficiently able to defendant or explain her prior statement.

This was not the case in Goforth. According to the Supreme Court of Mississippi,

We find that Rigdon, though physically present at trial, did not have the requisite, minimal ability or capacity to act. Significantly, no one here disputes that Rigdon's total loss of memory was genuine. The trial judge, in fact, stated that "[i]t is obvious to the Court that [Ridgon] suffers physical disabilities, and also a mental impairment in that he does not have recollection of matters that has [sic] occurred within his lifetime." Nothing in the record indicates that Rigdon's memory loss was feigned. He had no recollection of the underlying events surrounding his statement, and he could not even remember having known Goforth or Doe. It was, in his mind, as if the alleged events had never occurred. Additionally, he could not recall ever having spoken to police. The most he could do was verify his signature and "guess" that he had provided the written statement above it. This total lack of memory deprived Goforth any opportunity to inquire about potential bias or the circumstances surrounding Rigdon's statement. In sum, Goforth simply had no opportunity to cross-examine Ridgon about his statement.

The court thus found that the admission of Rigdon's prior statement violated the Confrontation Clause and reversed Goforth's conviction.



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