Failure to answer questions on cross

In United States v. Owens, 484 U.S. 554 (1988), the Court – per Justice Scalia, who also wrote Crawford – held that the Confrontation Clause permitted introduction of a prior accusation made by the victim, Foster, even though Foster did not remember the incident itself or most relevant events since then. I have long thought that Owens was wrong in stating that the accused had the benefits of cross-examination by showing that Foster had a “bad memory.” Foster’s memory was bad because his head was bashed in during the assault being tried; the fact that he could not remember the incident at the time of trial said rather little about his ability to remember at the time of the prior statement, when he purported to remember. It certainly did not provide an adequate substitute for a full cross-examination, which might have probed his opportunity to observe who hit him and any reasons he may have had for speculating that the assailant was Owens. I believe the result in Owens – admitting the statement – can be justified on a forfeiture theory, but only if the state prevails on the issue now before the Supreme Court in Giles – that is, only if the accused may forfeit the confrontation right by serious misconduct that predictably renders the witness unavailable to testify even though that effect was not a purpose of the misconduct. But taking Owens on its own terms, how far does it go? Foster did at least remember making the prior identification. But suppose the witness does little more than sit on the witness stand and take the oath. Would that be enough, given the dictum in Crawford that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements”? 541 U.S. at 59 n.9. (I think that’s wrong; see my article Prior Statements of a Witness: A Nettlesome Corner of the Hearsay Thicket, 1995 Sup. Ct. Rev. 277 – but let’s put that aside for now, too.) What constitutes “appear[ing] for cross-examination at trial”?

Blog reader Sylvia Ornstein, a public defender in New Jersey, has brought to my attention the pending case of State v. Nyhammer, 396 N.J. Super. 72, 932 A.2d 33 (A.D. 2007), which she won in the Appellate Division and is now on review by the state supreme court. The defendant is accused of sexual abuse of a child, A.N., who made a videotaped statement to investigators for the prosecutor describing an incident of abuse. According to the court,

At trial, A.N., then age eleven, testified. Despite many attempts by the prosecutor, she was non-responsive to many questions. She was unable to testify that defendant touched her inappropriately, despite leading questions, although she did write his name on the blackboard. The transcript of her testimony discloses many “no response” notations instead of answers to questions. When the prosecutor used anatomically correct dolls, asking A.N. to indicate where she had been touched or what part of a boy's body she had seen, A.N. made no response. Further, A.N. was unresponsive to the following questions: “has [defendant] touched you anywhere?” and “can you show us what they touched you with on your private area?”

On cross-examination, defense counsel could not elicit recollections from A.N. on questions going to the heart of the charges. She did not describe on direct or cross-examination the acts described in her videotaped statement. Neither did she corroborate her accusation that defendant engaged in sexual activity from the videotaped statement.

Referring to Owens, the court said:

A.N.'s complete inability to present current beliefs about any of the material facts, or to testify about her prior statements, is distinguishable from a situation where a trial witness for the prosecution simply has a bad memory.

Thus, admission of the statement was error.

I think this is the right conclusion. This was a failure, or inability, to testify, not simple bad memory. And I don’t think the proper result would change if the child said, “I don’t remember” instead of declining to respond altogether. If cross was adequate in this case, then I don’t see how it can ever be deemed inadequate so long as the witness is able to go to the witness stand and take the oath. But if that is all the witness is able to do, how can one reasonably say the accused has gotten the benefits of cross-examination? All the accused has been able to show is that at this moment, in these circumstances, the witness is no better able to answer questions than is a corpse.

I'd be curious to know whether readers are familiar with other cases presenting similar facts.