Confronting Memory Loss

Abstract

The Confrontation Clause of the Sixth Amendment grants“the accused” in “all criminal prosecutions” a right “to beconfronted with the witnesses against him.” A particularproblem occurs when there is a gap in time between thetestimony that is offered and the cross-examination of it, aswhere—pursuant to a hearsay exception or exemption—evidence of a current witness’s prior statement is offered and,for some intervening reason, her current memory is impaired.Does this fatally affect the opportunity to “confront” thewitness? The U.S. Supreme Court has, to date, left unclear theextent to which a memory-impaired witness can afford acriminal defendant her right to confront. Would, for instance,it be of any value to permit a defendant the opportunity to cross-examine a witness claiming no recollection of having seen thecrime or having identified the defendant as the perpetrator?Should the right to confront simply imply the ability to lookone’s accuser in the eye at trial, or should it necessitate somedegree of opportunity for substantive cross-examination? Twopetitions for certiorari that the U.S. Supreme Court denied inDecember 2019—White v. Louisiana and Tapia v. New York—could have permitted the Court to clarify confrontation rightsin memory loss cases. This Article identifies and discusses eightkey issues arising under the Confrontation Clause inconnection with memory impairment in witnesses. Althoughthe Court chose not to put these issues to rest in the context ofWhite or Tapia, we anticipate federal and state courts will becalled upon to answer these issues in the coming years, and wesuspect the Court will eventually need to answer them