EvidenceProf Blog

What The Hell Is A Stipulation?: 9th Circuit Affirms Seemingly Questionable Impeachment Instruction

Federal Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

The (only) purpose of impeachment under Rule 609(a)(1) is to show the jury that, based upon the witness' prior conviction(s), he might not be a trustworthy witness. Thus, if a criminal defendant chooses not to testify at trial, his prior conviction(s) cannot be admitted under Rule 609(a)(1) because he would not be a witness, meaning that he could not be impeached. That being the case, I am confused by what (I think) went on in United States v. Williams, 2011 WL 4342648 (9th Cir. 2011). 

In Williams, Johnny M. Williams was convicted of being a felon in possession of a firearm. He later appealed, claiming, inter alia, that the district court erred in instructing the jury that he was impeachable with a prior felony conviction. According to Williams, here is what happened at trial: 

First,

The parties stipulated in the government's case in chief:

MR. BARRY: One of the elements of the offense with which the defendant is charged,...being a felon in possession of a firearm, is that at the time the defendant possessed the firearm, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year. The United States and the defendant, Johnny Williams, hereby stipulate that on May 30th, 2007, the defendant was convicted of a crime punishable by imprisonment for a term exceeding one year.

Later,

[T]he district court determined that the government would not be permitted to cross examine or impeach Williams with a 2007 domestic violence conviction, but would be permitted to do so with a separate 2000 prior narcotics conviction which was not the subject of the stipulation....However, after further objection, the district court determined that although he would permit the government to argue that Williams had two prior felony convictions in argument, he would not permit him to be confronted with the second conviction on the stand....

On cross-examination, the following exchange took place:

Q. Well, you specifically would be because you'd been convicted of a prior felony; isn't that right?

A. Yes, I have.

Q. And as an ex-felon, you can't even touch a firearm; isn't that right?

A. That's correct.

Q. And you knew that?

A. Correct.

Finally,

At the jury instruction conference, defense counsel objected to the inclusion of the "Impeachment, Prior Conviction of Defendant" jury instruction because the only evidence the jury had before it as to Williams' prior conviction was the stipulation of the 2007 conviction, sans any detail or explanation as to the nature of the conviction, and Williams was not impeached with it....

The district court disagreed and provided the following instruction:

IMPEACHMENT, PRIOR CONVICTION OF DEFENDANT You have heard evidence that defendant has previously been convicted of a crime. You may not consider a prior conviction as evidence of guilt of the crime for which the defendant is now on trial, except to the extent that a prior conviction is an element of the offense. You may also consider the defendant's prior conviction as it may affect the defendant's believability as a witness.

If this indeed what happened, I agree with Williams. Before Williams testified, the district court determined that he could not be impeached through his 2007 domestic violence conviction. Acting in reliance of that decision, he testified. It was then not until the jury instruction conference when the district court reversed itself and concluded that the jury could use the conviction for impeachment purposes. This was simply improper unless Williams did something to cause the court to reverse itself.

Now, I acknowledge that the facts might not have been as Williams claimed them to be. The Ninth Circuit's discussion of the issue was terse, with the court quickly concluding that the district court correctly concluded that the conviction was more probative than prejudicial and then finding that "it [wa]s irrelevant that the conviction came in pursuant to the parties' stipulation rather than through cross-examination." But it was relevant if the district court found that Williams could not be cross-examined/impeached before he testified. And if that's what indeed happened, I don't see how the district court acted properly.

-CM

The Usefulness of . . . Evidence

Since this is EvidenceProf Blog, it seems appropriate to mention celebrate this post by Orin Kerr over at the Volokh Conspiracy.  The post describes the results of a survey of George Washington Law School alumni who were asked to identify the "most useful" elective they had taken in law school.  The survey results received surprisingly widespread coverage given that the results seem intuitive (at least to me).  Here is coverage on the Wall Street Journal Law Blog; here on the ABA Journal; here on Prof. Bainbridge (celebrating the third place finish of Corporations).

Whatever the survey's weaknesses (and why admit that there are any?), the results are good for Evidence professors.  Evidence was the winner, hands down.  Administrative Law came in second – although one suspects that Administrative Law would not have done nearly as well in a survey of alumni of any school not located in Washington, D.C., but I will let someone on CorporationsProf Blog take up that fight . . .

- Jeff Bellin

Court Of Appeals Of Maryland Affirms Trial Court's Judicial Notice Of Fact That Proceedings Before Judge X Are "Absolutely Unconstitutional"

I'm going to put on record exactly why I ruled the way I did in the State's motion in limine. I just want to make sure it's clear for the appellate record.

I find and I'll take judicial notice that the proceedings that take place in front of [the judge who accepted Ms. Williams's guilty plea] are absolutely unconstitutional. He does such things as ask people certain things, tell them to nod their head, and then he just takes pleas and just does it. There is no state's attorney present. There is no defense attorney present. There is no semblance of any type of due process or any rights given to the defendants. It is so widespread that even the federal judges in Greenbelt won't recognize that as convictions.

Now, I understand [Petitioner's] argument, and I am not taking anything away from it. I just wanted to make sure that the record indicated why I was ruling, not that I was saying that [Petitioner] couldn't use a conviction against the witness. It's this conviction. It's unique only to what happened in that courtroom. I have long lamented what happens there. I just wanted that on the record. Thomas v. State, 2011 WL 4389167 (Md. 2011) (emphasis added)

This language originally came from a Maryland trial court, and the Court of Appeals of Maryland (Maryland's highest court) cited it yesterday in deeming the conviction of a witness for the prosecution unconstitutional and thus inadmissible. The Court of Appeals of Maryland had to agree with the trial court's decision to take judicial notice because the trial court had no evidence that the witness' conviction was unconstitutional, just the prosecutor's bare allegation of unconstitutionally. In other words, the Court of Appeals of Maryland must have agreed with the trial court that this "fact" was "not subject to reasonable dispute...." Maryland Rule of Evidence 5-201(b).

The rest of the post will lay out some more of the details of Thomas, but here's my question: Who is Judge X, and what can be done to remove him from power immediately (if he's still in power)? What happens to the (possibly thousands) of individuals who have been convicted after guilty pleas before this judge? What is the obligation of the Maryland judges and prosecutors who recognize the unconstitutionality of proceedings before this judge? What is our obligation? 

In Thomas, Robert Lee Thomas, was convicted of carrying a handgun. After he was convicted, Thomas appealed, claiming that the trial court erred by precluding him from impeaching a witness for the prosecution, Timika Williams, with evidence of her prior conviction for theft of a motor vehicle. 

According to the State, Ms. Williams's guilty plea was unconstitutional, because she was not represented by counsel when she entered her plea and had not waived her Sixth Amendment right to counsel. Counsel for Petitioner objected to the State's motion but did not challenge the State's characterization of Ms. Williams's plea as being unconstitutional.

According to the Court of Appeals of Maryland,

Our caselaw, derived from Supreme Court precedent, makes clear that such convictions cannot be used for impeachment purposes. In von Lusch v. State,...we cited Loper v. Beto, 405 U.S. 473, 483 (1972) as "directly govern[ing]" the issue. In Loper, the Supreme Court explained that the "rule against use of uncounseled convictions 'to prove guilt' was intended to prohibit their use 'to impeach credibility',"because "[t]he absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt."... That reasoning applies equally whether the prior conviction is that of the defendant or of a third-party witness.

In this case, it is undisputed that Ms. Williams's prior conviction was achieved without counsel or a waiver of counsel and is therefore unreliable, under Loper, for purposes of attacking Ms. Williams's credibility. We hold that the trial court neither erred nor abused its discretion in refusing to allow Petitioner to impeach Ms. Williams with evidence of that conviction.

In Loper, however, Loper did more than just allege that his prior convictions were unconstitutional because he was denied the right to counsel. Instead,

His sworn testimony at the habeas corpus hearing confirmed these allegations. In addition, he produced court records to corroborate this testimony.

On the other hand, in Thomas, the trial court really did just have the prosecutor's allegation that Ms. Williams' prior conviction was unconstitutional. But, as noted, it got around this problem by taking judicial notice "that the proceedings that take place in front of [the judge who accepted Ms. Williams's guilty plea] are absolutely unconstitutional." I don't see any reasonable way that the court could have taken judicial notice of this "fact," but you can see the court's point and why the Court of Appeals of Maryland later agreed with it. If federal judges won't recognize convictions from this judge as real convictions, there's a real problem (Moreover, the Court of Appeals of Maryland in Thomas ultimately found that Thomas should have been able to interrogate Ms. Williams' about the conduct leading to her conviction under Maryland Rule of Evidence 5-608(b)).

Given the fact that there's this huge problem, what's the solution? I didn't redact the name of the judge to "[the judge who accepted Ms. Williams's guilty plea]" in the opening block quote. That was the decision of the Court of Appeals of Maryland. And while federal judges, prosecutors, at least one trial judge, and now the Court of Appeals of Maryland have all found that proceedings before this judge are "absolutely unconstitutional," as far as I can tell, they've done nothing to have him removed from power. Indeed, we don't even know his name. Today, he will likely take several more guilty pleas from defendants not represented by counsel. Next week, he will take several more. I plan to do my best to find out who he is and how to get him removed from power. Any help would be appreciated.

-CM

Putting It All In Context: Supreme Judicial Court Of Massachusetts Finds No Problem With Prior ID

Massachusetts does no have codified rules of evidence, it does have the Massachusetts Guide to Evidence. And, as I have noted before, "[a]lthough the Guide is only guidance and not rules, it was 'approved for use' by [the] Supreme Judicial Court [of Massachusetts] in 2008." Pursuant to "Rule 801(d)(1)(C)" of the Guide, a statement is not hearsay if it is "[a] statement of identification made after perceiving the person if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement." But what about statements surrounding the statement of identification? Are they admissible as well or are they inadmissible hearsay? That was the question addressed by the Supreme Judicial Court of Massachusetts in its recent opinion in Commonwealth v. Walker, 2011 WL 4357665 (Mass. 2011).

In Walker, Andre Walker was convicted of (1) murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty for the shooting death of Francis Stephens; (2) the armed assault with intent to murder of Jose Astacio, who was shot but not killed; and (3) and possession of an unlicensed firearm.

After he was convicted and unsuccessfully filed a motion for a new trial on the ground of ineffective assistance of counsel, Walker appealed. One of the grounds for his appeal was that his trial counsel erred by failing to object to the introduction of alleged hearsay statements made by (eye)witness for the prosecution Sylvester Harrison. Specifically, a detective testified

that Harrison said he saw the person depicted in photograph number two (the defendant) operate a black Toyota and "[h]e observed [this person] as being the shooter coming out of the vehicle and shooting at two individuals that were on the sidewalk."

According to Walker portions of this statement were inadmissible hearsay that went beyond the permissible scope of an identification under "Rule 801(d)(1)(C)." The Supreme Judicial Court of Massachusetts (mostly) disagreed, initially noting that

"[a]bsent context, an act or statement of identification is meaningless....[I]dentification evidence must be accompanied either by some form of accusation relevant to the issue before the court, or some form of exclusionary statement, in order to be relevant to the case."...We have concluded that an eyewitness's out-of-court statement identifying a defendant as the person shooting at the eyewitness's friend is part of the context of the identification,...but a statement regarding the number of shots fired, the color of the firearm, and the defendant's behavior after the shooting goes beyond the context of the identification of the shooter.

The court then found the statement(s) in the case before it more like the former type of statement, finding that

The judge, in denying the defendant's motion for a new trial, concluded that Harrison's statement that the person in photograph number two looked like the person who operated the car and then fired shots at two individuals on the sidewalk was "limited context integral to the identification," and therefore properly admitted. The judge also concluded that Harrison's description of the car as a "black Toyota" was "extraneous to the identification," and was inadmissible hearsay, but was harmless in the circumstances in view of abundant other evidence that the car involved in the shooting was a black Toyota. We agree.

-CM

The Trade-Off Is...: Court Of Appeals Of Texas Finds Jurors Can't Testify About Trading-Off Of Answers

Similar to its federal counterpart, Texas Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

So, let's say that jurors "trade-off answers," i.e., they reach a compromise verdict. Can jurors impeach their verdict through testimony concerning their trading-off of answers? Unsurprisingly, according to the recent opinion of the Court of Appeals of Texas, Fort Worth, in Damian v. Bell Helicopter Textron, Inc., 2011 WL 3836464 (Tex.App.-Fort Worth 2011), the answer is "no." What is surprising to me is that this wasn't always the case in Texas.

In Damian, 

Appellants filed [a] lawsuit against Appellee Bell Helicopter Textron, Inc. on January 25, 2002, alleging, among other things, strict products liability and negligence, relating to the crash of a Bell 407 helicopter. The case proceeded to a jury trial in August 2007, and the jury returned its verdict on September 17, 2007. The jury found that there was a design defect in the helicopter; that the negligence of Bell and one of the helicopter pilots, Captain Damian, caused Appellants' injuries; that Bell and Captain Damian were each fifty-percent responsible for causing the accident and resulting injuries; and that Appellants' damages totaled $294,300. The jury also found that Bell did not act with malice. The trial court signed the final judgment on February 28, 2008.

All parties appealed from this verdict, with the appellants claiming, inter alia, the the trial court erred in (1) failing to accept juror affidavits; (2) failing to to conduct an open hearing concerning allegations that the jury traded-off answers on the jury charge, and (3) failing to grant a new trial due to alleged jury misconduct. The court's opinion does not explain exactly how jurors traded-off answers, but Golden Eagle Archery, 24 S.W.3d 362 (Tex. 2000), explains the process:

Frederick, Cline, and Lynch all recalled that the jury bartered on the amounts to award for disfigurement and loss of vision, although their accounts contradict each other in the specifics. Frederick said that initially ten jurors had agreed to award $2,500 for disfigurement and nine had agreed to award $2,500 for loss of vision, but traded votes to award $1,500 for disfigurement and $2,500 for loss of vision. Lynch, however, claimed that initially ten jurors had agreed on $1,500 for loss of vision, and eight agreed on $2,500 for disfigurement, but ultimately decided to switch these amounts. Cline merely remembered that the jurors "traded off" on these answers.

In other words, jurors "trade-off answers" when the cannot reach a unanimous result and thus compromise. Legally, this is not the correct way for jurors to reach a verdict, and, according to the court in Damian, jurors used to be able to testify concerning such trading off. According to the court, the "[a]ppellants cite[d] several cases for the proposition that "the trading of answers and the cluster answering are of such severity and obvious harm that a new trial must be granted.'" According to the court, though, these decisions were rendered before the passage of Texas Rule of Evidence 606(b). And, according to the court, while such testimony might have been allowed before Rule 606(b), it is now clearly inadmissible under the Rule, meaning that the appellants were not entitled to relief.

-CM

To Summarize: 10th Circuit Notes That Rule 1006 Doesn't Provide An Exception To Rule Against Hearsay

Federal Rule of Evidence 1006 provides that

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

As the recent opinion of the Tenth Circuit in United States v. Irvin, 2011 WL 3833812 (10th Cir 2011), makes clear, however, Rule 1006 only provides parties with a (sort of) way around the Best Evidence Rule; it provides no exception to the rule against hearsay.

In Irvin,

Jeffrey Miller and Hallie Irvin were charged in an eleven-count indictment with a variety of crimes stemming from an alleged conspiracy to defraud mortgage lenders in connection with the subprime housing market. After a month-long jury trial, Miller and Irvin were each convicted on several of the charges and sentenced. 

Miller and Irvin thereafter appealed, claiming, inter alia, that the district court improperly allowed the prosecution to admit Exhibits 1-2, which were initially offered by the government unde rFed.R.Evid. 1006 as a summary of several boxes of 'loan files' pertaining to the allegedly fraudulent home sales." Specifically, Miller and Irvin claimed that "the loan files purportedly summarized in Exhibit 1–2 constituted hearsay that was not shown to qualify for any exception to the prohibition on hearsay evidence." In addressing this argument, the Tenth Circuit noted that

When this same challenge was raised before the district court, the government attempted to show the loan files were admissible under the business records exception [to the rule against hearsay] established by Fed.R.Evid. 803(6). Pursuant to Rule 803(6), business records are admissible despite their hearsay nature if the records' custodian, or another qualified witness, testifies the records (1) were prepared in the normal course of business; (2) were made at or near the time of the events recorded; (3) were based on the personal knowledge of the entrant or of a person who had a business duty to transmit the information to the entrant; and (4) are not otherwise untrustworthy....The government offered [James] Sparks as the witness qualified to make these foundational showings. Sparks, however, testified the loan files were largely maintained by various title companies for whom he had not worked and under circumstances of which he had no personal knowledge. Furthermore, Sparks could not state whether the loan files were made or kept by the title companies in the regular course of their businesses. He also indicated that various documents within the loan files had been removed, destroyed, or otherwise modified. His testimony, therefore, was insufficient to establish the admissibility of the loan files as business records.

According to the Tenth Circuit, this meant that the exhibits were imporperly admitted because

The materials summarized by Rule 1006 evidence must themselves be admissible because a contrary rule "would inappropriately provide litigants with a means of avoiding rules governing the admission of evidence such as hearsay."

-CM

Character Of The Matter: Supreme Court Of Iowa Finds Trial Court Erred In Admitting Defendant's Harassment Conviction

Similar to Federal Rule of Evidence 609(a)(1), Iowa Rule of Evidence 5.609(a)(1) provides that

Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 5.403, if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

A prior conviction is probative to the extent that jurors use it as evidence that the defendant might not be a trustworthy witness at trial. A prior conviction is prejudicial to the extent that jurors (mis)use it as propensity character evidence, i.e., to conclude, "Once a criminal, always a criminal." In State v. Redmond, 2011 WL 3962864 (Iowa 2011), the prosecution had argued that a defendant's prior conviction was admissible under Rule 5.609(a)(1) to prove, in effect, "Once a criminal, always a criminal." And because the trial court bought this reasoning, the Supreme Court of Iowa had to reverse.

In Redmond, Raymond Redmond was charged with indecent exposure. After Redmond testified, the prosecution sought to impeach him through his 2009 conviction for harassment. In claiming that evidence of the conviction was admissible under Rule 5.609(a)(1), the prosecutor argued,

I think the fact that the defendant has just recently been convicted of Harassment in the First Degree, I believe while intoxicated as well, goes to establish that this type of behavior—that the defendant's impeachment on this offense is proper....

I think it's clear that the defendant acts in an aggressive and sometimes obviously violent or threatening manner when intoxicated given that previous conviction....I was just going to raise it for the purpose of letting the jury know or making the jury aware that it exists.

Defense counsel objected that admission of the conviction would cause Redmond "extreme prejudice," but the trial judge overruled the objection. After Redmond was convicted, claiming that the trial court erred in allowing for the admission of his prior harassment conviction. 

The Supreme Court of Iowa agreed, first finding that the harassment conviction was lacking in probative value:

The conviction's probative value is limited to showing Redmond has intended to disturb or upset others. This showing may allow the jury to infer Redmond might disregard his duty to testify truthfully based upon his previous disregard of social communicative norms for self-gratification. But "crimes based on conduct that is either violent or disorderly are ordinarily not" as probative toward testimonial credibility.

The court then found that the danger that the jury would (mis)use the conviction as propensity character evidence was "obvious, so obvious it was the reason the State argued the harassment conviction should be admitted." Accordingly, the Supreme Court of Iowa found that the probative value of the conviction did not outweigh its prejudicial effect, meaning that evidence of the harassment conviction was improperly admitted and a reversal was required.

-CM

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.

-CM