## Facts

- James Joseph Owens, a federal inmate, was tried for assault with intent to commit murder of John Foster, a prison correctional counselor.
- Foster was beaten with a metal pipe, suffered a skull fracture, was hospitalized for nearly a month, and sustained severe memory impairment.
- While hospitalized, Foster initially could not identify his attacker; later, he told an FBI agent Owens was the assailant and selected Owens from a photographic array.
- At trial, Foster testified that he remembered making the identification, but admitted he could not remember seeing the attacker, could not remember most hospital visitors, and could not recall whether anyone suggested Owens’s name.
- Defense counsel attempted to refresh Foster’s recollection with hospital records, including a record indicating Foster had earlier named a different person.
- Owens was convicted; the Ninth Circuit reversed on Confrontation Clause and hearsay grounds.
- The Supreme Court reviewed whether memory loss affects confrontation rights and admissibility of prior identifications under the Federal Rules of Evidence.

## Issues

1. Whether the Confrontation Clause is violated by admitting a witness’s prior out-of-court identification when the witness appears at trial but cannot explain the basis for the identification due to memory loss.
2. Whether a memory-impaired witness is “subject to cross-examination concerning the statement” under Federal Rule of Evidence 801(d)(1)(C), making the prior identification non-hearsay and admissible notwithstanding Rule 802.

## Decision

- The Supreme Court reversed and remanded.
- The Court held that admitting Foster’s prior identification did not violate the Confrontation Clause because Owens had an opportunity to cross-examine Foster at trial about his memory loss and the identification circumstances.
- The Court held the prior identification was admissible under Rule 801(d)(1)(C) because Foster testified at trial and responded to questions, even though he could not remember the underlying events.
- The Court rejected the view that memory loss makes cross-examination constitutionally or evidentially insufficient; the impairment affects weight, not admissibility.

## Legal Principles

- The Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that achieves any particular result.
- Confrontation is satisfied when the declarant appears at trial, testifies under oath, responds to questioning, and the jury can observe demeanor, even if the declarant cannot recall the basis for a prior statement.
- Under Rule 801(d)(1)(C), a prior identification is admissible as non-hearsay when the declarant testifies and is subject to cross-examination concerning the identification; claimed memory loss does not negate that status if the witness takes the stand and answers questions.
- A witness’s inability to remember the subject matter may be treated as “unavailability” for some evidentiary purposes (Rule 804) without preventing admission of a prior identification under Rule 801(d)(1)(C).

## Conclusion

A witness’s substantial memory loss does not bar admission of a prior identification when the witness appears at trial, testifies, and answers questions; the Constitution requires a chance to test credibility through cross-examination, and Rule 801(d)(1)(C) permits the identification as non-hearsay despite Rule 802.


United States v. Owens, 484 U.S. 554 (1988)