Federal Evidence Review

In fraud prosecution, admission of testimony by a witness who read his grand jury testimony into evidence because he was suffering from memory loss did not violate the defendant’s Sixth Amendment Confrontation Clause rights, in United States v. Ghilarducci, 480 F.3d 542 (7th Cir. Mar. 14, 2007) (Nos. 05-2836, 05-3165)

In re-defining the scope of the Confrontation Clause in Crawford v. Washington, the Supreme Court failed to consider what it means for a witness to “appear for cross-examination.” While the case re-configured the landscape of the Sixth Amendment, the case did not overrule cases in which a witness “appears for cross-examination” simply by willingly taking the stand, answering questions in whatever manner the witness was capable, and exposes to the factfinder his demeanor. The defendant received all he was entitled to -- an opportunity to address the witness's prior testimonial statements. As is so often noted, the court has found only that a defendant has right to confront the witness, not that the opportunity be effective or availing. See Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (The Sixth Amendment Confrontation Clause only “guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”).

In an interesting Seventh Circuit case, the defendant Ghilarducci, with the assistance of co-defendant Richardson, created and conducted “dozens of failed investment deals” as owner of Westchester Financial Associates. Based on this scheme, he was charged with various fraudulent transactions. At trial, the court admitted the testimony of witness Sova who suffered from memory loss. At one stage of his testimony, the witness was allowed to “read into evidence his grand jury testimony.” The defendant’s counsel then questioned the witness, who “did not claim a total loss of memory regarding the events. Rather, he cooperated with defense counsel’s questioning and succeeded in answering a great number of questions.” Ghilarducci, 480 F.3d at 549.

Specifically, defense counsel tested Sova’s credibility in cross-examination, probing into the severity of the witness's grand mal seizure due to epilepsy, whether the witness had been compensated for his trial or grand jury testimony, and the extensiveness of his contact with government attorneys or agents. By referencing documents that memorialized his interactions with the defendant, the witness "was also able to answer some questions on that topic.” Ghilarducci, 480 F.3d at 549. After his conviction, the defendant appealed, contending in part that the trial court violated his right to confrontation under the Sixth Amendment.

The Seventh Circuit affirmed the admission of the witness’s testimony, characterizing the challenge to its admission as “frivolous.” The circuit noted the observation from Delaware v. Fensterer, 474 U.S. 15, 20 (1985), that “the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Ghilarducci, 480 F.3d at 548 (quoting Delaware v. Fensterer, 474 U.S. 15, 21-22 (1985).

This was precisely what was at stake in defendant Ghilarducci'd appeal. The circuit found in the record of the trial no evidence that the witness’s lack of memory about his grand jury statement was “so complete as to deprive Ghilarducci of a meaningful opportunity to cross-examine [witness] Sova regarding that statement.” The circuit observed that a Sixth Amendment violation resulting from use of a witness whose memory was challenged would not occur merely because the witness’ “lapse of memory impedes one method of discrediting him.” Ghilarducci, 480 F.3d at 548 (quoting Delaware v. Fensterer, 474 U.S. 15, 21-22 (1985)(“The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.”)).

But even assuming there was a Confrontation violation, the circuit concluded that any error was harmless. In determining whether the error was harmless. The circuit applied the factors provided by the Supreme Court for assessing this question: “the importance of the witness’s testimony; whether the testimony is cumulative; the presence or absence of evidence corroborating or contradicting the testimony; the extent of cross-examination permitted; and the overall strength of the prosecution’s case.” Ghilarducci, 480 F.3d at 549 (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). The circuit found none of these factors was implicated. The testimony of the witness was of “little importance” as illustrated by the prosecution's failure to even refer to it in closing arguments. In addition, the cross-examination of the witness was “fairly extensive” and “was only occasionally hampered” by the witness’s memory lapses. Even without the witness’s grand jury testimony, the government’s case was strong. “In light of the evidence,” concluded the circuit, “if there was a Confrontation Clause problem (and we do not believe there was), it was harmless.” Ghilarducci, 480 F.3d at 549-50.

The result in Ghilarducci closely reflects the Supreme Court's analysis of a witness's inability or refusal to recall the events recorded in a prior statement or the events surrounding the making of a statement. Because the jury is free to disregard the testimony that the witness no longer recalls, the memory gap has no implications for admission under the Confrontation Clause. See United States v. Owens, 484 U.S. 554, 564 (1988) (where the witness, a victim of the charged assault had given a statement to police accusing the defendant, but at trial testified that he had no recollection of why he made the accusation, the Court held that the victim's memory loss did not deprive the defendant of a constitutionally adequate opportunity for cross-examination and therefore did not violate the Confrontation Clause which guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (quoting Delaware v. Fensterer, 474 U.S. 15 (1985)). As in Ghilarducci, once the challenged witness had been placed under oath, answered questions, and been subject to the jury's observation, the Sixth Amendment did not require more in terms of the opportunity to cross-examine.