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Confrontation – Opportunity for Cross-Examination: Witness’s Claimed Loss of Memory

State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 ( prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
For Rockette: Timothy A. Provis

Issue: Whether the witness’s repeated claim of memory loss denied Rockette confrontation within the meaning of Crawford v. Washington, 541 U.S. 36 (2004).


¶24      Fensterer and Owens teach us that the key inquiry for Confrontation Clause purposes is whether the declarant is present at trial for cross-examination, takes the oath to testify truthfully and answers questions asked of him or her by defense counsel. These cases also plainly inform us that the Confrontation Clause does not guarantee that the declarant’s answers to those questions will not be tainted by claimed memory loss, real or feigned.

¶25      Rockette claims that the Crawford court altered this analysis where prior testimonial statements are concerned. However, we can find nothing in the Crawford opinion suggesting that the Court intended to overrule or otherwise call into question Fensterer or Owens.

¶26      … Accordingly, we hold that a witness’s claimed inability to remember earlier statements or the events surrounding those statements does not implicate the requirements of the Confrontation Clause under Crawford, so long as the witness is present at trial, takes an oath to testify truthfully, and answers the questions put to him or her during cross-examination. See Fensterer, 474 U.S. at 20, 22; Owens, 484 U.S. at 559-60.

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