Confronting Memory Loss

The Confrontation Clause of the Sixth Amendment grants “the accused” in “all criminal prosecutions” a right “to be confronted with the witnesses against him.” A particular problem occurs when there is a gap in time between the testimony that is offered, and the cross-examination of it, as where, 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” the witness? The Supreme Court has, to date, left unclear the extent to which a memory-impaired witness can afford a criminal 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 the crime or identified the defendant as the perpetrator? Should the right to confront simply imply the ability to look one’s accuser in the eye at trial or should it necessitate some degree of opportunity for substantive cross-examination? Two petitions denied certiorari by the Supreme Court in December 2019—White v. Louisiana and Tapia v. New York—could have permitted the Court to clarify confrontation rights in memory loss cases. The purpose of this Article is to identify and discuss eight key issues arising in connection with memory impairment in Confrontation Clause witnesses. Although the Court chose not to put these issues to bed in the context of White or Tapia, these are the issues we anticipate federal and state courts will be called upon to answer in the coming years, and we suspect the Supreme Court will eventually need to answer them

Face to Face with the Right of Confrontation

This article is an edited excerpt from the amicus curiae brief filed in Crawford v. Washington, heard before the United States Supreme Court on November 10, 2003. Prof. Friedman wrote the brief for the Court

Vanishing Point: Alzheimer\u27s Disease and its Challenges to the Federal Rules of Evidence

Article published in the Michigan State Law Review

Reputational Review I: Expertise, Bias and Delay

Expertise, bias and delay arguments are shifting the focus of judicial review from the legality of administrative decisions to the reputation of administrative decision- makers. These grounds measure the skill, objectivity and efficiency characteristics that define administrators\u27 reputations. They make it possible for courts to consider these reputations, even if only by way of unarticulated judicial notice, when deciding judicial review applications. After setting out the theory of expertise, bias and delay implicit in recent Supreme Court of Canada decisions, the author concludes that courts must use less impressionistic measures in judging these concepts, lawyers must present more concrete reputational evidence in arguing them, and administrators must become more sensitive to their impact on public opinion

Confronting Memory Loss

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