Is An Identification Statement of a Witness Who Cannot Testify the Basis of Identification Because of Memory Loss Admissible ?
In United States v. Owens, 484 U.S. [554,] 559, 98 L. Ed. 2d [951,] 958, 108 S. Ct. [838,] 842 [(1988)], the Supreme Court stated that the confrontation clause is not "violated by admission of an identification statement of a witness who is unable, because of a memory loss, to testify concerning the basis for the identification." Owens, 484 U.S. at 564, 98 L. Ed. 2d at 961, 108 S. Ct. at 845.
The Owens Court further stated as follows:
"Ordinarily a witness is regarded as 'subject to cross-examination' when he is placed on the stand, under oath, and responds willingly to questions.
Just as with the constitutional prohibition, limitations on the scope of examination by the trial court or assertions of privilege by the witness may undermine the process to such a degree that meaningful cross-examination within the intent of the rule no longer exists.
But that effect is not produced by the witness's assertion of memory loss--which, as discussed earlier, is often the very result sought to be produced by cross-examination, and can be effective in destroying the force of the prior statement." Owens, 484 U.S. at 561-62, 98 L. Ed. 2d at 959, 108 S. Ct. at 844.