Information on the opportunity to cross examine:
- Producing the witness will satisfy the Confrontation Clause even if the witness cannot be cross-examined effectively. The Confrontation Clause guarantees only an opportunity to cross-examine witnesses. There is no right to meaningful cross- examination. Generally speaking, an opportunity to cross-examine a forgetful witness satisfies the confrontation clause. If, however, a witness is unable or refuses to testify (even though the witness is on the witness stand), it follows that the witnes cannot be cross-examined.
- Delaware v. Fensterer, 474 U.S. 15 (1985) (per curiam). The Court held that an expert witness’ inability to recall what scientific test he had used did not violate the Confrontation Clause even though it frustrated the defense counsel’s attempt to cross-examine him. “[T]he 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 fact finder the reasons for giving scant weight to the witness’ testimony.”
- United States v. Owens, 484 U.S. 554 (1988). While in the. hospital, the victim identified the accused to an FBI agent. At trial, due to his injuries, which affected his memory, the victim could only remember that he earlier identified the accused, but not the reason for the identification. The victim was under oath and subject to cross-examination; the Confrontation Clause was satisfied.
- United States v. Rhodes, 61 M.J. 445 (2005). Witness against accused testified but claimed a lack of memory. The previous confession of the witness, implicating accused, was admitted against appellant with certain conditions. The defense argued that the appellant’s confrontation rights were violated because the witness did not “defend or explain” his statement as required by Crawford v. Washington. The court ruled that the Supreme Manual for Courts-Martial (2012) Court’s previous case of United States v. Owens was not overruled by Crawford . By presenting the witness, the government met the confrontational requirements of the Sixth Amendment.
- United States v. Gans , 32 M.J. 412 (C.M.A. 1991). The military judge admitted a sexual abuse victim’s statement given thirty months earlier to MPs as past recollection recorded (MRE 803(5)). At trial, victim could not remember details about sexual se incidents. Appellant claimed that because the daughter’s recollection was limited, his opportunity to cross-examine was also limited. The Court of Military Appeals disagreed, relying on the
Fensterer and Owens decisions that there is no right to meaningful cross-examination