6th Amendment Archives | Fort Worth Criminal Defense, Personal Injury, and Family Law

Confrontation Clause Violation When Accuser Does Not Appear at Trial

By | Confrontation Clause

Tarrant County Trial Court Admits Testimony in Violation of the Confrontation Clause

The Second Court of Appeals recently released a memorandum opinion, which reversed a defendant’s conviction due to a confrontation clause violation. The issue was whether the trial court (Criminal District Court Number 1, Tarrant County) erred in allowing an officer to testify about certain statements the alleged victim made regarding a prior assault allegation.

McDowell v. State—2nd Court of Appeals (2018)

The Facts—Defendant Was Convicted for Felony Domestic Violence

On August 21, 2016, officers were alerted to a domestic disturbance in progress. When officers arrived at the scene they made contact with the victim and the victim’s friend who had reported the disturbance. While talking with the two females, officers noticed multiple bruises on the victim and learned that the suspect (i.e. Defendant), who had allegedly assaulted the victim, was still inside the home. Officers subsequently entered the residence and arrested Defendant.

At trial, dash-cam video showing the accusations made by the two females was admitted. In addition, one of the officers testified to additional statements made by the victim suggesting that the defendant had a history of violence. These additional statements, however, were not included in the dash cam video. Defendant objected to these statements under Crawford because the victim did not appear at trial. Nonetheless, the trial court allowed the out-of-court statements to be admitted over objection.

In addition to the officer’s testimony regarding the hearsay statements, the jury heard from two other witnesses about the cycle of domestic violence. The State then referenced this testimony in relation to Defendant’s history of domestic violence during closing arguments. As a result, Defendant was convicted. Defendant later appealed his conviction arguing that the trial court erred when it allowed the officer to testify to the victim’s statements in violation of the confrontation clause of the 6th Amendment.

Court of Appeals Reverses and Remands Case—Holding the Trial Court Erred in Admitting the Officer’s Testimony

Generally, the Confrontation Clause bars admission of testimonial statements of a witness who does not appear at trial. In determining whether certain statements were testimonial in nature, “the Court looks to see whether circumstances were present at the time the statements were made that would indicate the existence of an ongoing emergency.” If such circumstances existed, the statements are admissible.

Here, the victim did not appear at trial. As such, the Court of Appeals attempted to analyze whether the victim’s statements were testimonial in nature by determining whether they were made during the ongoing emergency. However, the Court was unable to do so because there was no evidence from the State regarding when these statements were made. The Court concluded that without knowing the timing at which the statements were made, there was no way to determine the existence of an ongoing emergency. The Court explained that once there is an objection to the admission of evidence on confrontation grounds the burden shifts to the State. Here, the State was silent in regard to the confrontation objection. And, without the State providing more evidence, the Court could not conclude that the statements were nontestimonial. Accordingly, the Court held that the trial court erred in admitting the statements.

The Court then conducted a harm analysis to determine whether the error impacted the jury’s verdict, which would require a reversal. In making its determination, the Court noted that the majority of the officer’s testimony was based on the inadmissible statements. These statements portrayed a history of violence rather than just one instance. Further, the other witnesses’ testimony hinged on these inadmissible statements. Thus, because the inadmissible statements were a crucial part in establishing the elements of the offense, the Court could not say beyond a reasonable doubt that the trial court’s error did not contribute to Defendant’s conviction and, therefore, a reversal was required.

Fort Worth Criminal Defense Child Victim

US Supreme Court Rules Child’s Statements to Teacher Non-Testimonial

By | Confrontation Clause

Statements by Child Victim to Teacher Were Admissible “Non-Testimonial” Under the Supreme Court’s Confrontation Clause Jurisprudence.

Fort Worth Criminal Defense Child VictimThe Sixth Amendment’s Confrontation Clause protects a defendant’s right to confront witnesses against him and raises the issue of how-to-treat admissibility of out-of-court statements.  In a landmark 1980 case, the Supreme Court adopted a standard allowing out-of-court statements to be admitted if they are deemed reliable and trustworthy.

In 2004, the Court adopted what this Court called a “different approach,” adopting the position that testimonial statements–out-of-court statements as a substitute for in-court testimony–are inadmissible unless the witness is unavailable to testify in court and the defense had an earlier opportunity for cross-examination.

In 2006, the Court adopted the “primary purpose” test, under which statements made during the course of police interrogation for the primary purpose of meeting an ongoing emergency are not testimonial and are therefore admissible. Only statements made in the course of an investigation for the primary purpose of proving facts relevant to later prosecution are potentially inadmissible.

In 2011, the Court expanded the primary purpose test by requiring the determination of whether a statement is testimonial to consider all the relevant circumstances. Specifically, the Court said statements made to police officers in an informal setting are less likely to be testimonial than a police station interrogation.

All of the cases up to this point had one fact in common–the statements were made to law enforcement officers. The Court had declined to decide the issue of whether the same rules would apply to statements made to individuals other than police officers.

Breaking Confrontation Clause Caselaw | Fort Worth Criminal Defense Attorneys

In Ohio v. Clark, the Court finally had the opportunity to address the question regarding statements made to individuals other than police officers. In Clark’s child abuse trial, statements made by the three-year-old victim to his teachers that Clark had caused his injuries were admitted into evidence. The three-year-old did not testify because of an Ohio law that generally determined children younger than ten years of age incompetent to testify.

The trial court ruled the child’s statements were not testimonial and allowed them to be admitted. Clark was convicted and sentenced to 28 years imprisonment.

A state appellate court reversed the decision. The Ohio Supreme Court upheld the decision of the Appeals Court, concluding the primary purpose of the teachers’ questioning was gathering evidence, not addressing an ongoing emergency. The court considered the teachers agents of the state under the state’s mandatory reporting law and found the child’s statements functionally equivalent to live in-court testimony that was inadmissible.

The United State Supreme Court disagreed and decided the child’s statements were made in the context of an ongoing emergency regarding suspected child abuse. The teachers needed to know who might have abused the child so they would know whether it was safe to release the child to his guardian and to help prevent future attacks. During the spontaneous and informal questioning, the teachers never told the child his statements might be used to punish Clark. The Court found it unlikely the child intended his statements to be a substitute for trial testimony.

The Court declined to adopt a categorical rule that all statements to persons other than law enforcement officers are testimonial, but considered the identity of the questioners in this case and concluded that statements made to individuals not principally charged with uncovering and prosecuting criminal behavior, such as teachers, are less likely to be testimonial.

The Court rejected the argument that the mandatory reporting law transformed teachers into agents of the state, concluding the teachers would have taken steps to protect the child even in the absence of the law. The Court also rejected Clark’s claim that the child’s statements should have been inadmissible because the jury perceived them to be testimonial, noting that theory would render almost all out-of-court statements offered by the prosecution inadmissible.

The Court concluded that because the child’s statements were not made for the primary purpose of creating an out-of-court substitute for trial testimony, they were not testimonial and were therefore admissible.

Although the ruling in the case was unanimous, in an unlikely pairing, Justices Scalia and Ginsburg argued the 2004 decision regarding testimonial statements was adequate to decide this case. They argued the majority’s characterization of the 2006 and 2011 cases as different approaches or alternative tests was an attempt to return to the 1980 standard of reliability when the only issue is whether the statement is made by a witness and is unconfronted.

Justice Thomas argued the Court should in fact return to the 1980 standard of trustworthiness and reliability and apply the same standard to statements made to private individuals and those made to police officers. Thomas characterized the primary purpose test as an “exercise in fiction” and concluded in this case, the child’s statements did not meet the standards of reliability and trustworthiness to fall under the prohibition of the Confrontation Clause

Fort Worth Criminal Trial Lawyers

“Everybody Out!” Court Rules the Right to a Public Trial Forfeited

By | Public Trial

Fort Worth Criminal Trial LawyersThe Sixth Amendment guarantees a criminal defendant’s right to a “public” trial. The Texas Court of Criminal Appeals recently confronted the question of whether and under what circumstances a criminal defendant may lose that right.

Bobby Joe Peyronel was convicted of a criminal offense. During a break in the punishment phase of Peyronel’s trial, an unidentified female supporter approached a juror and asked how it felt to convict an innocent man.

Fearing juror intimidation and apparently unable to identify the woman, the prosecutor asked the judge to exclude all female members of Peyronel’s family from the courtroom. Peyronel objected, arguing that granting the request would exclude Peyronel’s wife and daughter and give the jury the impression Peyronel had no supporters. (The CCA’s decision did not explain why the judge did not just question the juror, identify the woman who made the comment, and exclude her from the courtroom.)

In a possible overreaction, the judge ordered all witnesses and observers out of the courtroom. The punishment phase of the trial proceeded with witnesses waiting outside the courtroom until time to testify.

Peyronel appealed, arguing a violation of his constitutional right to a public trial. No one disputed that right. However, the State argued that because Peyronel did not ask the trial judge to do anything and did not inform the judge that he planned to appeal based on an alleged Sixth Amendment violation, Peyronel had forfeited his public-trial right.

The Court first considered whether the right to a public trial is mandatory (must be enforced no matter what a defendant says or does), waivable (can be knowingly and intentionally relinquished by a defendant), or forfeitable (can be given up if a defendant does not insist on enforcement). The court briefly reviewed cases from other jurisdictions and concluded the public-trial right could be forfeited.

The Court then considered whether Peyronel had forfeited his public-trial right. Although Peyronel objected to the trial judge’s order to clear the courtroom, the CCA did not consider that to be the equivalent of asserting a violation of his constitutional right. The court said there was no “magic language” Peyronel needed to use to assert the violation, but he at least had to specifically state what he wanted the trial judge to do and upon what grounds his request was based. The CCA determined Peyronel did not meet that standard and, as a result, forfeited his right to a public trial.

Read the full opinion: Peyronel

In a strong dissent, Justice Johnson noted that the prosecutor’s request was just to exclude female family members from the courtroom and Peyronel objected, arguing that such a broad action would remove his wife and daughter. Justice Johnson said that objection was sufficient on its own and it also implied Peyronel’s objection to a complete exclusion.

Justice Johnson compared the situation to buying an appliance. If a customer has a two-foot-wide space for an appliance and a seller tries to sell an appliance that is two inches wider, the customer will object. By objecting to that appliance, Justice Johnson said, the customer is also making it clear that he would object to the seller substituting an appliance even wider than two feet, two inches. According to Justice Johnston, when Peyronel objected to the exclusion of female members of his family because it was too broad to accomplish the intended purpose, that also constituted an objection to the exclusion of even more people and made it clear to the trial judge that his order to clear the courtroom was too broad as well.

Peyronel v. Texas is interesting in at least two respects. Anecdotally, it seems odd that neither the majority nor the dissenters were troubled at all by the fact that the trial judge went beyond the prosecutor’s request and ordered everyone from the courtroom rather than trying to identify the woman who was the object of concern and removing her.

More fundamentally, the principle that some constitutional rights can be waived is well established; for example, Miranda rights are frequently waived. But, the court’s opinion suggests that a defendant can lose his constitutionally protected public-trial right by not speaking up, or, presumably, by speaking up but not speaking loudly or eloquently enough.

Howes v. Fields

Questioning an Inmate About an Unrelated Crime? Miranda Warnings?

By | Miranda

Howes v. FieldsHowes v. Fields is a U.S. Supreme Court Case that was released on February 21, 2012.  In this case, the U.S. Supreme Court confirmed that there is no bright line rule for determining when an inmate is in “custody,” such that Miranda warnings are required if officers wish to questions him about an unrelated crime.

While serving a jail sentence, a corrections officer escorted Fields to a conference room where two police officers questioned him about an unrelated crime.  At the beginning of the interview, the officers told Fields that he could leave whenever he wanted.  Fields eventually confessed to the crime.  The officers never advised Fields of his Miranda warnings or told him that he did not have to speak with him.

The Sixth Circuit Court of Appeals held that any time an inmate is taken from the general prison population and questioned about a crime that occurred outside the prison, he is always in-custody for Miranda purposes.  Makes sense, right?
The Supreme Court disagreed.  The Court held that serving a term of imprisonment, by itself, is not enough to constitute Miranda custody.  When a prisoner is questioned, the determination of Miranda custody should focus on all of the circumstances surrounding the interrogation, to include the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted.

In this case, the Court held that Fields was not in-custody for Miranda purposes.  Although the interview lasted between five and seven hours and continued well past the time Fields went to bed, the officers told Fields several times that he could leave and go back to his cell whenever he wanted.  Additionally, the interview was conducted in comfortable conference room, the officers did not physically restrain or threaten Fields and they offered him food and water.  All of these facts are consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave.

Right to an attorney in Fort Worth, Texas

Lost in Translation: A Defendant’s Right to Counsel

By | Miranda, Right to Counsel

Right to an attorney in Fort Worth, TexasUnder the Fifth and Sixth Amendments, a criminal suspect is guaranteed the right to counsel.  But there’s a difference between what the two amendments provide.  The Fifth Amendment right to counsel was created by the Supreme Court decision in Miranda v. Arizona, where the Court held that a person has the right to have counsel present during custodial interrogation (interrogation counsel).  The Sixth Amendment guarantees a defendant the assistance of counsel for his defense at trial (trial counsel).

Over the past four decades, the jurisprudence concerning the Fifth Amendment right to counsel during police interrogation (interrogation counsel) and the Sixth Amendment right to counsel at all critical stages of criminal proceedings (trial counsel) had become intertwined in complex and confusing ways. It was increasingly difficult for courts to determine which right can be invoked when and whether invocation of the right to counsel under one amendment invoked the right to counsel under the other amendment.

Pecina v. State, a recent Texas Court of Criminal Appeals case, illustrates the confusion that existed between the two rights to counsel.  In Pecina, Arlington Police officers arrested the defendant for the murder of his wife and took him to the hospital rather than the jail because he had suffered significant stab wounds (allegedly self-inflicted).  Because Mr. Pecina could not be transported to see a magistrate within 48 hours as required by the Texas Code of Criminal Procedure, the police officers brought a magistrate to him.  A bilingual magistrate.  The magistrate advised Mr. Pecina (in Spanish) of his Article 15.17 rights including, inter alia, the right to have an attorney present throughout the criminal trial process (i.e. trial counsel – 6th Amendment).

“After reading appellant his rights, [the magistrate] asked if he wanted a court-appointed attorney.  And he stated that he did.” She then asked Mr. Pecina if he “still wanted to talk to [the detectives]?” He said that he did.  The magistrate (as she later testified) believed that, when Mr. Pecina asked for counsel, he was asking for trial counsel, not interrogation counsel.  The two detectives then entered the hospital room and issued Mr. Pecina his Miranda warnings (in Spanish).  Mr. Pecina waived his Miranda rights, did not request an attorney, and gave a statement.  He was later convicted for murder after his statements to the detectives were admitted against him at trial.

These facts raise important questions:

When Mr. Pecina told the magistrate that he wanted a court-appointed attorney, did he invoke his rights under both the 5th and 6th Amendments? Should the police have refrained from initiating further questioning until he had an attorney present?

Prior to the 2009 Supreme Court decision in Montejo v. Louisiana, 556 U.S. 778, the controlling case regarding the two intertwining rights to counsel was Michigan v. Jackson, 475 U.S. 625 (1986). “In Michigan v. Jackson, the Supreme Court had held that ‘if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.’”

Under Michigan v. Jackson, Mr. Pecina’s assertion of his right to counsel that he made to the magistrate in the hospital would have been enough to preclude the police from initiating further interrogation. Or, if the police did later initiate interrogation, any statement Mr. Pecina made should have been suppressed at trial.

But all of that changed under Montejo in 2009. In Montejo, the Supreme Court disentangled the right to interrogation counsel with the right to trial counsel.

Distilled to its essence, Montejo means that a defendant’s invocation of his right to counsel at his Article 15.17 hearing says nothing about his possible invocation of his right to counsel during later police-initiated custodial interrogation. The magistration hearing is not an interrogation event.

Analyzing the Pecina case in the wake of Montejo, the CCA explained that “[i]n this case, there were two separate events: magistration followed by a custodial interrogation.” The CCA then held that “under the totality of the circumstances…an objective and reasonable police officer, conducting a custodial interrogation would conclude that appellant had voluntarily waived both his Fifth and Sixth Amendment rights to counsel for the purposes of custodial questioning.”

The CCA went further to clarify the new rule, explaining that under the Supreme Court decisions in Montejo, Miranda, Edwards, and Minnick, a suspect’s Fifth Amendment rights (to interrogation counsel) are only triggered “AFTER THE POLICE INFORM HIM OF HIS RIGHT TO COUNSEL AT THE BEGINNING OF A CUSTODIAL INTERROGATION.” Emphasis added.  Ultimately, the CCA held that the magistration hearing (in which Mr. Pecina requested an attorney) did not trigger any Fifth Amendment right concerning custodial interrogation; that, the CCA explained, was done by the detectives at the beginning of their interrogation.

PRACTICE NOTE: A criminal defendant/suspect must now request an attorney, unequivocally, at every stage of the criminal justice process.  Interrogation.  Arraignment.  Magistration.  Every stage.  This is a significant change in Texas criminal procedure.

Judge Alcala joined the majority opinion but wrote a separate concurring opinion, in which she notes:

The magistrate’s interpretation (that Mr. Pecina only requested trial counsel and not interrogation counsel) misses the whole point of the warning, which is the right to have an attorney present ‘during any interview with peace officers.’ I conclude that the record indisputably shows that appellant’s request for an attorney was a request to have an attorney present during interrogation, as well as during court proceedings. …Appellant’s request for an attorney was, at most, a pre-invocation of his right to counsel.

Judge Alcala believes that the “Legislature could easily fix [the confusion between the two rights to counsel] by adding one sentence to the Article 15.17 admonishments: ‘If you desire to have an attorney present during police interrogation, you must make that request at the time of the police questioning.’”

Judge Price dissented, opining that “[a]ny reasonably objective viewer would conclude from the peculiar facts of this case that [the magistrate] was acting as a de facto agent of the interrogating detectives.” He went further:

That the invocation [of Mr. Pecina’s rights] also occurred during a simultaneous “magistration,” while accurate, does not detract from its essential character for Fifth Amendment purposes. And once a suspect has made it clear that he desires the assistance of counsel in coping with police interrogation, we are not entitled to look at his subsequent responses to official entreaties “to determine in retrospect whether the suspect really meant it when he unequivocally invoked his right to counsel.”

Judge Price believes that Mr. Pecina’s Fifth Amendment right to interrogation counsel was violated.  I agree.

Another Confrontation Case at the Supremes – Williams v. Illinois

By | Confrontation Clause

This Tuesday (6 Dec 11), the United States Supreme Court heard another Confrontation Clause case (Williams v. Illinois) dealing with forensic testing (ala Melendez-Diaz and Bullcoming).  The question presented was

Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.

At trial, the state called a DNA expert to testify about how it matched the accused’s DNA profile with DNA evidence recovered from a rape victim, but the state did not call a DNA analyst from the company that conducted the initial testing.  The defendant later claimed that his right to confrontation was violated because he was denied an opportunity to question all of the DNA analysts that tested the evidence.  The Court was hotly divided on the issue, at times debating amongst themselves.

Robert Barnes of the Washington Post covered the case HERE.  I couldn’t attend the hearing, so I’ll rely on his account of the oral argument.

The ABA preview of the case, which briefs and such, is HERE.

Right to a lawyer

An Ambiguous Request is No Request at All

By | Miranda, Right to Counsel

Right to a lawyerIn a recent case from the U.S. Court of Appeals for the Fifth Circuit (Federal), the court considered whether police interrogation of a suspect violated the suspect’s constitutional right to an attorney when the suspect voluntarily continued the conversation with the officers.

United States v. Carillo – While the defendant was in jail on a parole violation, officers went to interview him about his involvement in a drug distribution conspiracy.  After being read his Miranda rights, the defendant invoked his right not to be questioned without an attorney present.  The officers stopped talking to him and left.  The next day the defendant told jailers that he wished to speak to the officers from the day before.  The officers returned to the jail, advised him of his Miranda rights, which then led to a discussion about the defendant’s right to an attorney.  The defendant made three comments during this time.  He told the officers, “I wish I had a lawyer right here,” “I wanted to see if we could push this thing to where I could get my lawyer,” and “I wanted to see if you could work with me and push this deal to where I can get a lawyer and just sit down and talk about it.” After one of the officers told the defendant that he would get an attorney at his arraignment, the defendant asked the officer what would happen if he agreed to talk to the officer now.  The kind and helpful officer told the defendant that he would just be cooperating and helping himself and once he got into the federal system he would get an attorney.  Hearing those words of encouragement, the defendant agreed to talk to the officers and (of course) made several incriminating statements, which led to his conviction.

On appeal, the appellant contended that his confession should have been suppressed because it was obtained in violation of his constitutional right not to be interrogated while in police custody without an attorney present, under Miranda v. Arizona, 384 U.S. 436 (1966).

The 5th Circuit recognized that the defendant’s three comments, when viewed separately, appeared to indicate that he was invoking his right to counsel.  However, the Court held that when considering the entire context in which the defendant made the comments, a reasonable police officer would not have understood him to be saying that he wanted to stop talking with the police without an attorney present.  The court held that the defendant’s comments to the officers were ambiguous at best.  They expressed the defendant’s preference to have an attorney present, however, the fact that he kept talking to the officers indicated that he also wished to keep the interview going and not to end it by invoking his right to counsel.  The defendant re-initiated communication with the officers after he ended the interview the day before by invoking his right to counsel, so he was clearly aware of how he could end the interview.  The defendant was merely weighing the pros and cons of talking to the officers without an attorney present which he eventually decided to do.

Child Video Deposition

Videotaped Testimony of Child Sexual Abuse Victims Held Unconstitutional

By | Sex Crimes

Child Video DepositionLast week, the Texas Court of Criminal Appeals issued its opinion in Coronado v. State.

[The CCA] granted review of the case to determine whether the videotape procedures set out in [the Texas Code of Criminal Procedure] Article 38.071, Section 2, including the use of written interrogatories in lieu of live testimony and cross-examination, satisfy the Sixth Amendment rights of confrontation…

The case involved a six year-old child sexual abuse victim (who was three years-old when the abuse began) that the trial court determined was “unavailable” to testify in court because of the likelihood that she would suffer severe emotional trauma upon seeing the defendant.  Accordingly, the trial court allowed a neutral child interviewer to videotape an interview pursuant to Article 38.071, Section 2.  The defense counsel agreed to this procedure and propounded numerous questions for the interviewer to ask.  The defense counsel also agreed to allow the interviewer to ask follow-up questions that she deemed appropriate.  At trial, the videotaped testimony of the child was played to the jury in lieu of any live testimony by the victim.

The videotape procedures of Article 38.071, Section 2, were enacted prior to the Supreme Court’s decision in Crawford v. Washington.  Since that time, there has been a marked shift in confrontation clause jurisprudence in favor of a strict requirement of face-to-face live confrontation.  The lower appellate court, however, failed to cite (or even mention) the Crawford line of cases in its analysis.  The CCA, on the other hand, explained:

We are unable to find any post-Crawford precedent from any jurisdiction that states, or even suggests, that a list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is a constitutional substitute for live cross-examination and confrontation…There was no “rigorous adversarial testing” of [the child victim’s] testimonial statements by that greatest legal engine for uncovering the truth: contemporaneous cross-examination.  The written-interrogatories procedure used in this case does not pass muster under our English common-law adversarial system or our United States Constitution.

The CCA’s reluctance to overturn this case was apparent.  On page 2 of the opinion, Judge Cochran writes, “On federal constitutional matters, we are obliged to follow the dictates of the United States Supreme Court regardless of our own notions.”

Judge Hervey concurred.  While she agreed with the majority that the procedure used in this case was unconstitutional, she wrote separately to express her opinion that the defendant’s right to confrontation should be balanced with the societal interest in protecting child sexual abuse victims.  She would not foreclose the possibility of allowing testimony via closed circuit television where the witness would testify in a separate room, but where the victim could still see the defendant and the jury.

Presiding Judge Keller dissented.  In a well-reasoned opinion, she explains why she believes that the confrontation clause was not violated in this case.  She calls this a “close case,” but she would have affirmed.

Confrontation of Witness

Confrontation of an Available Witness That Cannot Remember

By | Confrontation Clause

What happens when a witness cannot remember facts to which she previously testified before the grand jury?

Confrontation of WitnessCan the State simply read her grand jury testimony into evidence as past recollection recorded even though the Defendant was not present to cross-examine her during that hearing? Normally, I would say yes, but I’m not talking about a witness that cannot remember one fact or another.  I’m talking about a witness that cannot remember ANYTHING about which she testified before the grand jury.  To me, that changes the game a bit.

The CCA recently considered this issue in Woodall v. State. I say they “considered” it – actually the Court was careful not to provide a definite holding on the matter. Instead, it punted the case on procedural (waiver) grounds. Nonetheless, the CCA did provide some dicta that is a helpful insight into its thinking.

We believe that, under the facts of this case, memory loss did not render [the witness] “absent” for Confrontation Clause purposes…The Supreme Court has generally rejected the notion that a present and testifying witness is nevertheless absent for confrontation purposes if the witness suffer from memory loss.

Curiously, the CCA cites only pre-Crawford cases. For example, citing a 1970 Supreme Court case, the CCA quoted the concurring opinion of Justice Harlan, in which he opined that

a witness’s lack of memory should have no Sixth Amendment Consequence.

However, the legal landscape has drastically changed since the time of Justice Harlan’s opinion. I doubt Scalia would agree with such reasoning today. Then again, as a strict constructionist, maybe he would.  If the witness is available at trial, even if she cannot remember anything, is that enough to satisfy the 6th Amendment? I would argue NO, but perhaps I’m wrong. Either way, we will not find out with the Woodall case, because the CCA passed on the ultimate issue.