Confronting a Forgetful Witness

In  United States v. Owens, 448 U.S. 554 (1988), the United States Supreme Court appeared to hold that the mere presence of a prosecution witness in a criminal trial satisfies accused's Sixth Amendment right to confront that witness -- even if the witness has or feigns no memory of a hearsay statement that the prosecution offers against accused. However, as Colin Miller noted in a blog today, the Supreme Court of Mississippi recently held that this reading of Owens is incorrect and that the mere presence of the witness whose pretrial hearsay statement is used against accused does not satisfy the Sixth Amendment Confrontation Right. Goforth v. State, 2011 WL 4089967 (Miss. 2011). The Mississippi Supreme Court acknowledged that its reading of Owens is a minority view.

Will the prosecution seek review in the United States Supreme Court? If so, will the U.S. Supreme Court grant review? If so, will the U.S. Supreme Court slap down the Mississippi Supreme Court or will it say that its holding in Owens was a mistake -- or will it say, unconvincingly, that Crawford v. Washington, 541 U.S. 36 (2004), impliedly overruled or "undermined" Owens?

• If the Court wishes to take this third tack, it faces the task of explaining why its "plain language" cum history approach in Crawford should not extend to the question of whether a witness can be said to "testify" against a criminal defendant merely by taking the witness stand. (But, having the last word, the Court does not always feel obliged to explain itself. The Court sometimes finds it is more convenient  simply to ignore the plain language and meaning of a prior decision.)

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