Does Loss of Memory of a Witness Prevent An Opportunity for Effective Cross-Examination ?
In People v. Flores, 128 Ill. 2d 66, 90, 538 N.E.2d 481, 490, 131 Ill. Dec. 106 (1989), the Supreme Court of Illinois followed the analysis of the United States Supreme Court in Fensterer and Owens in rejecting the defendant's argument that a witness' professed memory loss as to the content of a conversation he had with the defendant deprived defense counsel of an opportunity to cross-examine the witness concerning his prior testimony (which was admitted under section 115-10.1 of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 115-10.1)).
The Flores court wrote, in pertinent part, as follows:
"The confrontation clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination. [Delaware v. Fensterer, 474 U.S. 15, 20, 88 L. Ed. 2d 15, 19, 106 S. Ct. 292, 296 (1985), Green, 399 U.S. at 158, 26 L. Ed. 2d at 497, 90 S. Ct. at 1935.]
Contrary to the defendant's assertions, a gap in the witness' recollection concerning the content of a prior statement does not necessarily preclude an opportunity for effective cross-examination. See, e.g., United States v. Owens, 484 U.S. 554, 98 L. Ed. 2d 951, 108 S. Ct. 838 (1988)." Flores, 128 Ill. 2d at 88, 538 N.E.2d at 489.