Consequences of ''Forgetting'' Facts During Court Testimony

In Delaware v. Fensterer, 474 U.S. 15, 20, 88 L. Ed. 2d 15, 19, 106 S. Ct. 292, 294 (1985), the Supreme Court found that the defendant's confrontation rights were not violated where the prosecution's expert witness could not recall the basis for his expert opinion. The Court stated, "generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Fensterer, 474 U.S. at 20, 88 L. Ed. 2d at 19, 106 S. Ct. at 294. Subsequently, in Owens, 484 U.S. at 559, 98 L. Ed. 2d at 957, 108 S. Ct. at 842, the Supreme Court held that the defendant's confrontation rights were not violated where the victim testified that he remembered identifying the defendant as his assailant during an interview with the Federal Bureau of Investigation but acknowledged that he could not remember seeing his assailant at the time of the attack. In so holding, the Court stated that when a hearsay declarant is present at trial and subject to unrestricted cross-examination, "the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness' demeanor satisfy the constitutional requirements [of the confrontation clause]. Owens, 484 U.S. at 560, 98 L. Ed. 2d at 958-59, 108 S. Ct. at 843. The Court explained: "'The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony.'" Owens, 484 U.S. at 558, 98 L. Ed. 2d at 957, 108 S. Ct. at 842, quoting Fensterer, 474 U.S. at 21-22, 88 L. Ed. 2d at 21, 106 S. Ct. at 295.In People v. Flores, 128 Ill. 2d 66, 88, 538 N.E.2d 481, 131 Ill. Dec. 106 (1989), the defendant claimed that his confrontation rights were violated by the admission of a witness's grand jury testimony that the defendant admitted to that witness that he shot the victim. In contrast to his grand jury testimony, the witness testified at trial that he did not recall speaking with the defendant and therefore the defendant argued on appeal that defense counsel could not cross-examine the witness regarding his prior statements. Our supreme court relied upon Owens and Fensterer to reject that claim, stating that the admission of a declarant's hearsay statements does not violate the confrontation clause so long as the declarant "is testifying as a witness and subject to full and effective cross-examination," and that "a gap in the witness' recollection concerning the content of a prior statement does not necessarily preclude an opportunity for effective cross-examination." Flores, 128 Ill. 2d at 88; See also: People v. Lewis, 223 Ill. 2d 393, 404, 860 N.E.2d 299, 307 Ill. Dec. 645 (2006) (citing to Owens for the proposition that "the Supreme Court has held that a witness is 'subject to cross-examination' when he or she is placed on the witness stand, under oath, and responds willingly to questions."); People v. Sutton, 233 Ill. 2d 89, 121, 908 N.E.2d 50, 330 Ill. Dec. 198 (2009), quoting Owens, 484 U.S. at 560, 98 L. Ed. 2d at 958, 108 S. Ct. at 843 (" '[t]he weapons available to impugn the witness' statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee' "). This court has also issued several decisions holding that a witness's memory loss did not establish that the witness was unavailable for cross-examination. See: People v. Desantiago, 365 Ill. App. 3d 855, 850 N.E.2d 866, 303 Ill. Dec. 61 (2006); People v. Bakr, 373 Ill. App. 3d 981, 869 N.E.2d 1010, 312 Ill. Dec. 19 (2007); People v. Hampton, 387 Ill. App. 3d 206, 899 N.E.2d 532, 326 Ill. Dec. 315 (2008).