United States v. Owens 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988)
Foster was a prison guard who was beaten by an inmate.
While in the hospital, the FBI tried twice to get Foster
to identify his attacker. The first time, Foster was unresponsive, the
second time, Foster identified his attacker to be Owens.
At trial, Foster testified that due to massive head
trauma, he didn't remember anything from his time in the hospital,
including the identification he gave to the FBI. He was also unable to
remember the attacker.
Foster was also unable to remember who visited him in the
hospital or if any of his visitors suggested that Owens was the attacker.
The prosecution offered the evidence of Foster's
statements to the FBI under an exception to the hearsay rule (FRE
801(d)(1)(C)), as a prior identification.
Owens objected to the evidence, on the basis that it
violated the Confrontation Clause of the 6thAmendment,
and that it violated FRE 802.
The judge allowed it to be admitted.
The Trial Court found Owens guilty of attempted murder.
The Appellate Court reversed the decision of the Trial
Court, but found it to be harmless error and upheld the conviction. Owens
The US Supreme Court reversed the Appellate Court and
found that the evidence was admissible.
The US Supreme Court found that neither the Confrontation
Clause nor FRE 802 is violated by admission of an
identification statement by a witness who is unable, because of memory
loss, to testify concerning the basis of the identification.
FRE 804(a)(4) says that "unavailability"
for the purposes of some hearsay exceptions includes "loss of
In a dissent, it was argued that had the Foster died, then
the identification would not be admissible, so how could it be admissible
if Foster was alive but didn't remember?
Basically, the Court said that a witness must be
available for cross-examination. Even if he says, "I don't
remember" on the stand, that still counts as being subject to cross
examination and therefore it meets the minimum standard of FRE
Of course, the jury is free to give the identification
very little weight if the witness doesn't even remember what he said.
If the declarant was dead, then the jury would have no idea how much
weight to give the identification.