Confronting Memory Loss
Georgia Law Review, Vol. 55 (Forthcoming)
32 Pages Posted: 16 Mar 2020
Date Written: February 26, 2020
The Confrontation Clause of the Sixth Amendment grants “the accused” in “all criminal prosecutions” a right “to be confronted with the witnesses against him.” A particular problem occurs when there is a gap in time between the testimony that is offered, and the cross-examination of it, as where, pursuant to a hearsay exception or exemption, evidence of a current witness’s prior statement is offered and for some intervening reason her current memory is impaired. Does this fatally affect the opportunity to “confront” the witness? The Supreme Court has, to date, left unclear the extent to which a memory-impaired witness can afford a criminal defendant her right to confront. Would, for instance, it be of any value to permit a defendant the opportunity to cross-examine a witness claiming no recollection of having seen the crime or identified the defendant as the perpetrator? Should the right to confront simply imply the ability to look one’s accuser in the eye at trial or should it necessitate some degree of opportunity for substantive cross-examination? Two petitions denied certiorari by the Supreme Court in December 2019—White v. Louisiana and Tapia v. New York—could have permitted the Court to clarify confrontation rights in memory loss cases. The purpose of this Article is to identify and discuss eight key issues arising in connection with memory impairment in Confrontation Clause witnesses. Although the Court chose not to put these issues to bed in the context of White or Tapia, these are the issues we anticipate federal and state courts will be called upon to answer in the coming years, and we suspect the Supreme Court will eventually need to answer them.
Keywords: Confrontation Clause, confrontation rights, criminal procedure, evidence, Constitutional law, Supreme Court, memory loss
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