The Confrontation Clause of the Sixth Amendment provides a criminal defendant a right to cross-examine a witness, but does not guarantee an “effective” cross-examination. So long as a witness shows up, his complete memory loss doesn’t mean he has failed to “appear” for cross-examination. So long as he voluntarily responds to questions, even complete loss of memory with respect to the underlying facts will not implicate the Confrontation Clause. An interesting and worthwhile note on the topic, and a very useful “first impression analysis” provides useful background on this aspect of the Confrontation Clause and prior Supreme Court precedent on the issue.

In the case today, a State’s witness suffered a complete loss of memory to pertinent facts relevant to the charges against the defendant. Her memory loss, was attributed to brain damage she suffered from a car accident three years after the events about which she was testifying. The court of appeals held that her memory loss was tantamount to failing to appear, notwithstanding the Supreme Court case precedent to the contrary. The Criminal Court of Appeals of Texas reversed and remanded.

These issues and more concerning the intersection of law and memory will be the focus of the upcoming conference at Stanford Law School on April 1, 2011. The conference brings together leading scientists, scholars, and practitioners focused on the intersection of law, memory and neuroscience. Attendance is free of charge, although pre-registration for the event is requested.

Confrontation Clause, Memory, Witnesses
Woodall v. State, 2011 WL 743844 (Tex.Crim.App. 2011)
Appellant was indicted for one count of aggravated promotion of prostitution and four counts of engaging in organized criminal activity. During the guilt phase of trial, the State called several former managers, dancers, and patrons of the “adult entertainment” club at issue. Generally, the testimony indicated that the club’s official policy was that no sexual contact was allowed anywhere in the club. In her case-in-chief, Appellant presented the testimony of several dancers, her own testimony, and then called a State’s witness to testify as a defense witness. The State had informed defense counsel that the particular witness had suffered memory loss and did not remember dancing at the club due to prior brain damage that she suffered in a car accident at the age of eighteen. Appellant sought to use her memory loss to impeach her as a witness. In its rebuttal, the State attempted to recall the witness to the stand but because she was not physically present, the State read—over Appellant’s objection—the witness’s grand jury testimony to the trial jury as past recollection. On review, the court of appeals found that Appellant’s rights under the Confrontation Clause were implicated because the witness was “absent” from trial due to her memory loss. It further stated that “‘[a]bsence’ in the sense implicating the Confrontation Clause does not always mean physical absence. Hence, “the Confrontation Clause was implicated here because the State used out-of-court testimonial statements about which the declarant could not be cross-examined due to memory loss.” On appeal, the Court of Criminal Appeals of Texas held that under the facts of this case, memory loss did not render the witness “absent” for Confrontation Clause purposes if the witness was present in court and testifying. Consequently, the court of appeals erred in basing its holding on the memory loss of the witness, and the Texas Court of Criminal Appeals reversed the judgment and remanded the case for consideration of Appellant’s remaining point of error.