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 6th Amendment, and that it violated FRE 802.
      • The judge allowed it to be admitted.
  • The Trial Court found Owens guilty of attempted murder.  Owens appealed.
  • The Appellate Court reversed the decision of the Trial Court, but found it to be harmless error and upheld the conviction.  Owens appealed.
  • 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 memory.”
  • 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 801(d)(1).
      • 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.