Confronting Memory Loss

Georgia Law Review, Vol. 55, p. 95, 2020

52 Pages Posted: 16 Mar 2020 Last revised: 29 Dec 2020

See all articles by Paul F. Rothstein

Paul F. Rothstein

Georgetown University Law Center

Ronald J. Coleman

Georgetown University Law Center

Date Written: February 26, 2020

Abstract

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 U.S. 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 having 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 for certiorari that the U.S. Supreme Court denied in December 2019—White v. Louisiana and Tapia v. New York—could have permitted the Court to clarify confrontation rights in memory loss cases. This Article identifies and discusses eight key issues arising under the Confrontation Clause in connection with memory impairment in witnesses. Although the Court chose not to put these issues to rest in the context of White or Tapia, we anticipate federal and state courts will be called upon to answer these issues in the coming years, and we suspect the Court will eventually need to answer them.

Keywords: Confrontation Clause, confrontation rights, criminal procedure, evidence, Constitutional law, Supreme Court, memory loss

Suggested Citation

Rothstein, Paul F. and Coleman, Ronald J., Confronting Memory Loss (February 26, 2020). Georgia Law Review, Vol. 55, p. 95, 2020, Available at SSRN: https://ssrn.com/abstract=3544780 or http://dx.doi.org/10.2139/ssrn.3544780

Paul F. Rothstein

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Ronald J. Coleman (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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