Court Says Witness May Testify About Incident He's Forgotten

Times Staff Writer

The Supreme Court, ruling in the case of a brutally beaten California prison counselor, said Tuesday that a witness may testify about a crime even if he has forgotten the incident.

On a 6-2 vote, the justices rejected the argument that a criminal defendant has a constitutional right to "effective cross-examination" that is violated by such a witness.

The decision is the latest by the court that calls for bringing more evidence--even if tainted--into the courtroom. In June, the high court ruled that a defendant with a hazy memory could be hypnotized and then tell jurors about her "refreshed" recollections of a murder.

Recalled Nothing

In the case ruled on Tuesday, James Owens, an inmate at the federal prison in Lompoc, was convicted and sentenced to an extra 20 years for the 1982 beating of counselor John Foster with a metal pipe. Foster suffered a fractured skull and, at the time of the trial, could recall nothing about the attack. But, during his hospital stay, he had told an FBI agent that Owens was the attacker.

The counselor took the stand against Owens but was unable to answer any questions about the attack or the basis for his identification. All he could say was that he recalled the attack during the interview with the FBI agent.

An attorney for Owens complained that this violated the defendant's Sixth Amendment right "to be confronted with the witnesses against him."

On a 2-1 vote, the U.S. 9th Circuit Court of Appeals agreed. Judge Stephen Reinhart, joined by Judge Dorothy Nelson, said the Sixth Amendment requires that the witness' testimony be "subject to cross-examination," and Foster's memory loss prevented that.

Opinion by Scalia

In writing for the court, Justice Antonin Scalia said that the appeals panel read too much into the Sixth Amendment. "The confrontation clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way . . . the defense might wish," Scalia wrote.

In dissent, Justice William J. Brennan Jr., joined by Thurgood Marshall, said that the court's opinion made the confrontation clause into a "markedly hollow" protection that will not prevent the use of hearsay or tainted evidence from convicting an innocent man.

The justices have under consideration a more crucial "confrontation clause" case on whether victims of a child molester may testify in court from behind a screen. That case (Coy vs. Iowa, 86-6757) was heard last month and a decision can be expected by late spring.

Justice Anthony M. Kennedy is participating in the arguments before the court this week but is not voting in any of the cases heard earlier.

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