United States of America, Plaintiff-appellee, v. James Joseph Owens, Defendant-appellant, 789 F.2d 750 (9th Cir. 1986)

James Joseph Owens appeals his conviction under 18 U.S.C. § 113(a) for assault with intent to commit murder.

On April 12, 1982, Correctional Officer John Foster was brutally assaulted while on duty at the federal prison at Lompoc, California. The evidence at trial established that Foster's attacker beat him repeatedly with a metal pipe. Foster sustained numerous injuries to his face, arms and hands as well as to his head. His injuries resulted in a profound loss of memory with respect to several events, including the attack itself.

On May 5, 1982, shortly before Foster left the hospital, he was questioned by FBI Agent Thomas G. Mansfield. Mansfield asked Foster who had assaulted him. Foster replied that it had been Owens, who was--and continues to be--a Lompoc inmate. Mansfield then displayed several photographs, including one of Owens, and Foster identified Owens' picture.

At trial, Foster testified that he had little memory of the attack. He testified that he could only remember feeling an impact on his head and seeing blood on the floor, and that he had no memory of seeing his assailant. While the record indicates that Foster was visited in the hospital by many people, including his wife who visited daily, his only clear memory of any visit concerned the May 5th visit by Mansfield. Foster recounted Mansfield's question as to who had attacked him and Mansfield's request that he make the photospread identification, as well as his responses to Mansfield.

On cross-examination, Foster reaffirmed his inability to recount the details of the attack. When asked if he remembered making any statements during his hospitalization, Foster testified that the only statements he remembered making were the statements of identification made to Mansfield. Defense counsel sought to refresh Foster's recollection with certain hospital records indicating that while he was hospitalized Foster had alternately disclaimed knowledge of his attacker and attributed the assault to someone other than Owens. However, Foster was still unable to remember making any statements other than the ones to Mansfield. Similarly, Foster was unable to remember any visitors other than Mansfield, nor could he remember whether any of these visitors had suggested that Owens had been his assailant. Finally, Foster reaffirmed that he could "vivid [ly]" recall his statement to Mansfield and that at the time he made the statement, he knew why he had identified Owens. However, he was unable to remember any fact or reason that had caused him to state that Owens was the assailant.

On appeal, appellant's principal challenge is to the district court's admission of Foster's out-of-court identifications of Owens, which he contends was erroneous on four separate grounds.¹  First, Owens contends that since Foster had no recollection of his attacker, he lacked the personal knowledge required under Fed.R.Evid. 602 to testify to the identification. Second, Owens contends that Foster's initial statement implicating Owens was not an identification of someone "made after perceiving him" within the meaning of Fed.R.Evid. 801(d) (1) (C), and was therefore improperly admitted. Third, appellant argues that Foster's memory loss was such that he was not subject to cross-examination and therefore his testimony was inadmissible under Rule 801(d) (1) (C). Fourth, and related to his third contention, Owens argues that Foster's near-complete memory loss resulted in a deprivation of Owens' right to effective cross-examination in violation of the Sixth Amendment. Appellant would prevail under his challenge based on the Federal Rules of Evidence--the first three claims--if Foster's testimony were held to be inadmissible under either Rule 602 or Rule 801(d) (1) (C).

II. THE CLAIMS UNDER THE FEDERAL RULES OF EVIDENCE

The district court's construction of the Federal Rules of Evidence is a question of law subject to de novo review. United States v. McClintock, 748 F.2d 1278, 1287 (9th Cir. 1984), cert. denied, --- U.S. ----, 106 S. Ct. 75, 88 L. Ed. 2d 61 (1985). Questions of the admissibility of evidence which involve factual determinations, rather than questions of law, are reviewed for an abuse of discretion. Id. at 1291. When a mixed question of law and fact is presented, the standard of review turns on whether factual matters or legal matters predominate. If an "essentially factual" inquiry is present, or if the exercise of the district court's discretion is determinative, then we give deference to the decision of the district court; otherwise, we conduct a de novo review. See United States v. McConney, 728 F.2d 1195, 1202-04 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S. Ct. 101, 83 L. Ed. 2d 46 (1984).

B. Rule 602: "Personal Knowledge"

In relevant part, Fed.R.Evid. 602 provides that " [a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter." Appellant contends that because Foster was incapable of remembering whether or not he saw his attacker he lacked the requisite personal knowledge to testify to the out-of-court identifications of Owens.

Before an out-of-court identification can satisfy the provisions of Rule 602, the personal knowledge requirement must be applied twice. First, the witness, who testifies in the courtroom that a statement of identification was made out of court, must have personal knowledge as to the making of the out-of-court statement; he need not, however, have personal knowledge as to the events that were the subject of his statement. See Advisory Committee Note to Rule 602; 3 D. Louisell & C. Mueller, Federal Evidence Sec. 260 at 40 (1979); 3 J. Weinstein & M. Berger, Evidence p 602 (1985); S. Saltzburg & K. Redden,Federal Rules of Evidence Manual 305 (3d ed. 1982). Second, the declarant who made the out-of-court statement must have had personal knowledge of the events that were the subject of his statement. 4 D. Louisell & C. Mueller, Federal Evidence Sec. 415 at 95-96 (1980); McCormick on Evidence Secs. 10, 18, 300 (3d ed. 1984); Advisory Committee Note to Rule 803; 2 J.H. Wigmore, Evidence Sec. 670 (Chadbourn rev. ed. 1979); United States v. Lang, 589 F.2d 92, 98 (2d Cir. 1978). In this case, unlike the normal situation, Foster is both the in-court witness and the out-of-court declarant.

Clearly, when Foster testified in court he had personal knowledge of the making of his statements of identification to Mansfield on May 5. Thus, there is no problem with the first application of Rule 602. There is, however, some difficulty with the second application. It is not at all clear that Foster ever had personal knowledge of the events that were the subject of his statements to Mansfield, that is, it is questionable whether Foster had personal knowledge of the identity of his assailant.² 

A person has "personal knowledge" of "a fact which can be perceived by the senses" only if he "had an opportunity to observe, and [has] actually observed the fact." Advisory Committee Note to Rule 602. Accord 2 Wigmore, supra, Sec. 650; McCormick, supra, Sec. 10. Personal knowledge of a fact cannot be based on the statement of another. 2 Wigmore, supra, Sec. 657; McCormick, supra, Sec. 10 at 25.³ 

Foster testified that he was walking down an aisle "when I felt an impact on my head ... I looked down and saw blood on the floor and I--Now, I don't remember seeing at this time--I don't remember seeing the individual." Foster then said that " [t]he next thing I remember after receiving the blow to the head is many days later in the hospital." Finally, Foster stated that he could not recall "the person or persons" that struck him on the head. None of this testimony suggests that Foster saw his assailant. Indeed, it tends to suggest that he did not see his attacker and thus had no personal knowledge of the identity of his assailant. Moreover, Foster may have named Owens as a result of statements made to him during his hospital stay by one or more of his frequent visitors. Certainly the subject of the assault was one likely to arise when Foster and his friends or colleagues talked, and reports regarding the progress of the investigation may well have been conveyed to him. Unfortunately, as we have noted above, at the time of trial Foster had no recollection of any visits by persons other than Mansfield or the conversations that occurred during those visits.

The government argues in response that all of Foster's injuries were to the front of his body and therefore he must have seen his attacker. We agree that the location of the injuries provides support for the theory that Foster saw his attacker. On the other hand, it is possible that Foster was looking down or away and was taken by surprise when he was hit on the head; it is also possible that his assailant wore a mask or other disguise. Thus, the location of the injuries is not necessarily dispositive.

The question whether Foster had personal knowledge of the identity of his attacker is a mixed question of law and fact in which factual inquiries predominate, and thus, deference to the district court's ruling would normally be appropriate. Here, however, the district court did not rule on the issue after considering the evidence actually introduced.⁴  Because the district court made its ruling without having the benefit of testimony, because the question is such a close one and turns heavily on a factual inquiry, and because of our disposition of other issues in this case, see infra p. 757, we do not believe it necessary or advisable to determine whether Foster had personal knowledge of the identity of his attacker.

1. "Made after perceiving him."

During trial, Foster testified that prior to the photospread, Mansfield asked him whether he knew who his assailant was and that he responded that it was Owens. Appellant argues that the part of Foster's testimony relating his response constituted impermissible hearsay.

Rule 801(d) (1) (C) provides that

[a] statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... one of identification of a person made after perceiving him.

Appellant contends that Foster's initial statement to Mansfield was not an "identification of a person made after perceiving him," on the ground that the perception the rule refers to is a perception occurring after the crime has taken place. This question as to the meaning of Rule 801(d) (1) (C) is, as noted in part II.A, supra, reviewed de novo.

Foster's statement to Mansfield clearly complied with the literal wording of Rule 801(d) (1) (C): he had perceived appellant many times prior to the identification he gave to Mansfield. Furthermore, the purpose of Rule 801(d) (1) (C) is to allow the introduction of identifications made when "the witness' observations are still fresh in his mind ... before his recollection has been dimmed by the passage of time ... [or there has been] the opportunity ... to influence the witness to change his mind." S.Rep. No. 199, 94th Cong., 1st Sess. 2 (1975). See also H.R.Rep. No. 355, 94th Cong., 1st Sess. 3 (1975), reprinted in 1975 U.S.Code Cong. & Ad.News 1092, 1094 (same). A requirement that Foster first view appellant before being asked whether he knew who his assailant was would not further this purpose; rather, it would seem to hinder it by making Foster's subsequent identification a product of governmental suggestion. The commentators have rejected any requirement that the identifying witness perceive the person again after the crime, and we do also. See 4 Louisell & Mueller, supra, Sec. 421 at 207-08; 4 Weinstein & Berger,supra, p 801(d) (1) (C) at 801-175.⁵ 

2. "Subject to cross-examination"

Appellant next argues that Foster's statements identifying him as the assailant constitute impermissible hearsay because Foster was not, in view of his loss of memory at the time of trial, "subject to cross-examination" within the meaning of Rule 801(d) (1) (C). This mixed question of law and fact is not predominantly factual, so we review it de novo. We assume, arguendo, that Foster was subject to cross-examination as to his acts of (a) making the statement in which he named appellant as his assailant and (b) selecting Owens' picture from the photospread. The question before us, however, is whether Rule 801(d) (1) (C) contemplates cross-examination of the declarant on the facts and circumstances underlying the identification and, if so, whether Foster's loss of memory prevented compliance with that requirement.

An examination of Rule 801(d) (1) (C) and its rationale compels the conclusion that an extra-judicial identification may not be admitted unless the declarant is subject to cross-examination on the reasons why he made the identification. Hearsay evidence is excluded because it is thought to be generally substantially less reliable than live testimony. 4 Louisell & Mueller, supra, Sec. 413 at 69; 4 Weinstein & Berger, supra, p 800 at 800-11. Live testimony is considered reliable because it is given under oath, the jurors can observe the witness' demeanor, and the witness is subject to cross-examination. 4 Louisell & Mueller, supra, Sec. 413 at 71-72; 4 Weinstein & Berger, supra, p 800 at 800-10 to 800-11; McCormick, supra, Sec. 245. Of these safeguards, cross-examination is thought to be the most important. McCormick, supra, Sec. 245 at 728; 4 Louisell & Mueller, supra, Sec. 413 at 72.

It is the power of cross-examination that provides the principal rationale for Rule 801(d) (1). The reliability concerns of the rule against hearsay have been satisfied when "the witness is ... subject to cross-examination ... There is ample opportunity to test him as to the basis for his former statement." United States v. Fiore, 443 F.2d 112, 115 (2d Cir. 1971), cert. denied, 410 U.S. 984, 93 S. Ct. 1510, 36 L. Ed. 2d 181 (1973) (quoting 3 J.H. Wigmore, Evidence Sec. 1018 (3d ed. 1940)) (emphasis added); Accord McCormick, supra, Sec. 251 at 745; 4 Weinstein & Berger, supra, p 801(d) (1) at 801-97 & n. 4.

The cross-examination requirement of Rule 801(d) (1) (C) is intended to permit the opposing party to explore the trustworthiness of the extra-judicial statement of identification. Although cross-examination on the process of identification itself is consistent with this objective, it does not, without more, satisfy it. In order to explore adequately the trustworthiness of the prior identification, and thereby satisfy the purpose of the Rule, the opposing party must be permitted to cross-examine the declarant on the facts and circumstances underlying the identification. Accordingly, the scope of cross-examination contemplated by Rule 801(d) (1) (C) extends beyond the mere incident of identification and includes the basis on which the declarant made the out-of-court identification.

Having determined the proper scope of cross-examination under Rule 801(d) (1) (C), we must next determine whether Foster was "subject to cross-examination," within the meaning of the Rule, on the basis for his identification of Owens. Appellant's counsel were not restricted in their questioning of Foster on this issue, but Foster's unvarying answer was that he did not remember. The question then is whether an inability to answer due to a loss of memory means that the witness is not "subject to cross-examination." We conclude that for the reasons discussed in part III, infra, Foster's inability to answer questions on cross-examination prevented appellant from adequately exploring the basis for Foster's out-of-court identifications and that the jury did not have sufficient grounds for evaluating the correctness of those identifications. We therefore hold that Foster was not "subject to cross-examination" within the meaning of Rule 801(d) (1) (C) and that Foster's testimony as to his out-of-court identifications constituted inadmissible hearsay.⁶ 

In order to decide whether the erroneous admission of Foster's testimony requires the reversal of appellant's conviction we must determine "whether the prejudice resulting from the error was more probably than not harmless." United States v. Barrett, 703 F.2d 1076, 1081-82 (9th Cir. 1983); United States v. Castillo, 615 F.2d 878, 883-84 (9th Cir. 1980); United States v. Valle-Valdez, 554 F.2d 911, 916 (9th Cir. 1977); Fed.R.Evid. 103(a).

In addition to Foster's testimony, the jury heard the testimony of four inmates who had either witnessed the attack, or to whom Owens had made inculpatory remarks regarding the assault. Two items of clothing identified as belonging to Owens, but with blood stains that corresponded to Foster's blood type, were found outside a prison window. We recognize that there are reasons why the jury might not have found the testimony of the inmates credible, see infra part III.B, but the weight of the evidence is such that we conclude that it is more probable than not that the prejudice resulting from the erroneous admission of Foster's testimony was harmless. Thus, we must now turn to appellant's claim under the Confrontation Clause.

A. Jury's Ability to Evaluate Foster's Testimony

The Sixth Amendment to the United States Constitution provides that " [i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." Appellant contends that because of Foster's complete inability to recall the facts and circumstances underlying his out-of-court identifications, appellant was prevented from engaging in effective cross-examination, and thus his rights under the Confrontation Clause were violated. The question raised by appellant was identified, but explicitly left open, by the Supreme Court in California v. Green, 399 U.S. 149, 168-70, 90 S. Ct. 1930, 1940-41, 26 L. Ed. 2d 489 (1970), and Delaware v. Fensterer, --- U.S. ----, 106 S. Ct. 292, 295, 88 L. Ed. 2d 15 (1985) (per curiam).⁷  Because appellant's claim involves a mixed question of law and fact, and is not predominantly factual, and because it "requires consideration of the abstract legal principles that inform constitutional jurisprudence," we review it de novo. McConney, 728 F.2d at 1203.

The Supreme Court has stated that "the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that 'the trier of fact has a satisfactory basis for evaluating the truth of the [out-of-court] statement.' " Dutton v. Evans, 400 U.S. 74, 89, 91 S. Ct. 210, 220, 27 L. Ed. 2d 213 (1970) (plurality opinion) (quoting Green, 399 U.S. at 161, 90 S. Ct. at 1936). This mission is accomplished in three ways: first, by insuring that the declarant testifies under oath; second, by forcing the declarant to submit to cross-examination, "the greatest legal engine ever invented for the discovery of truth;" and third, by permitting the jury to observe the declarant's demeanor. Green, 399 U.S. at 158, 90 S. Ct. at 1935. Clearly, Foster testified under oath; clearly the jury was able to observe his demeanor. The question, therefore, is whether in view of Foster's memory loss, it was possible for Owens to cross-examine him effectively.

The Supreme Court has repeatedly emphasized the importance of cross-examination in furthering the goals of the Confrontation Clause. See, e.g., Ohio v. Roberts, 448 U.S. 56, 63 & n. 6, 100 S. Ct. 2531, 2537 & n. 6, 65 L. Ed. 2d 597 (1980) (quoting Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 1076, 13 L. Ed. 2d 934 (1965)). Statements about which the declarant has not been cross-examined are generally thought to be subject to three dangers. First, misperception: the declarant may not have accurately perceived what he describes, or he may not have perceived it all. Second, failure of memory: at the time the declarant makes his statement his memory may not correspond completely and accurately with his earlier perceptions. Third, faulty narration: the declarant, in his statement, may fail, either deliberately or inadvertently, to convey what he remembers accurately. McCormick, supra, Sec. 245; 4 Louisell & Mueller, supra, Sec. 413; 4 Weinstein & Berger, supra, p 800; Advisory Committee Note to Fed.R.Evid. Article VIII: "Introductory Note--The Hearsay Problem."⁸  Normally, cross-examination will eliminate or significantly reduce these dangers. A careful inquiry by opposing counsel will help to expose any misperception or failure of memory. It may serve to impeach the declarant or it may refresh his recollection and cause him to alter his testimony to make it more accurate. Similarly, close questioning will usually force the declarant to explain clearly what he meant, and will make it harder for a lying declarant to maintain a consistent story, thus reducing the danger of failure of narration. 4 Louisell & Mueller, supra, Sec. 413; 4 Weinstein & Berger, supra, p 800 at 800-11; Advisory Committee Note to Fed.R.Evid. Article VIII: "Introductory Note--The Hearsay Problem."

In this case, however, the type and extent of cross-examination to which Foster could be subjected could not serve to expose or significantly affect two of the three dangers surrounding an out-of-court identification, namely misperception and failure of memory. The only answers Foster was capable of giving could not provide the jury with the information it needed in order to determine whether Foster had perceived his attacker, accurately or at all, or whether at the time he made the identification, his memory correctly reflected his perceptions.

At the time of trial Foster did not remember who attacked him or whether he had actually seen his attacker. Foster recalled that when he met with Mansfield he had a reason for identifying appellant, but stated that he could no longer remember what that reason was. Indeed, Foster apparently remembered almost nothing about the period of time commencing with the assault on him and ending with the out-of-court statements he made to Mansfield.⁹  No one, including Foster, knows whether (1) Foster actually perceived his assailant, (2) if so, whether his perception of his attacker was accurate, and (3) whether at the time of his out-of-court identifications he had any memory of having observed that assailant. Not even the most skilled cross-examiner could elicit information that would help reduce the dangers of misperception or failure of memory. Clearly, two of the three dangers surrounding Foster's out-of-court identifications--misperception and failure of memory--could not be mitigated in any way by the only cross-examination of Foster that was available to Owens. Thus, Foster was not, and could not be, subjected to effective cross-examination concerning his out-of-court identifications. 4 Louisell & Mueller, supra, Sec. 422 at 230, 248; 4 Weinstein & Berger, supra, p 801(d) (1) (C) at 801-178; Falknor, The Hearsay Rule and Its Exceptions, 2 U.C.L.A.L.Rev. 43, 53 (1954). Under the circumstances, cross-examination could not provide the jury with the requisite basis "for evaluating the truth of the [out-of-court] statement [s]." See Green, 399 U.S. at 161, 90 S. Ct. at 1936.¹⁰ 

The government contends, and our dissenting colleague agrees, that Foster was subject to "full and effective" cross-examination because he could be cross-examined on the subject of the meeting with Mansfield during which he made the identifications of Owens. This argument appears to be based on United States ex rel. Thomas v. Cuyler, 548 F.2d 460, 463 (3d Cir. 1977), in which the court held that the Confrontation Clause is satisfied if the witness is sworn and does not refuse to answer questions, regardless of the witness' actual or feigned loss of memory. The Third Circuit based its holding on Justice Harlan's separate concurring opinion in Green, 399 U.S. at 172-189, 90 S. Ct. at 1942-1951. Justice Harlan, however, less than a year later, repudiated the approach he took in his separate opinion in Green, see Dutton, 400 U.S. at 93-100, 91 S. Ct. at 221-225 (Harlan, J., concurring), and the Supreme Court has rejected it as well. Roberts, 448 U.S. at 66 n. 9, 100 S. Ct. at 2539 n. 9. Accordingly, we must reject the government's argument.

Because the jury could not evaluate the truth, or in this case the correctness, of Foster's remarks, appellant's rights under the Confrontation Clause have been violated, Green, 399 U.S. at 159-61, 90 S. Ct. at 1935-37,¹¹  unless a "showing of particularized guarantees of trustworthiness" of Foster's out-of-court identifications was made. Roberts, 448 U.S. at 66, 100 S. Ct. at 2539.¹² 

In determining whether there has been a "showing of particularized guarantees of trustworthiness" of an out-of-court statement, we must examine the four so-called "indicia of reliability" which were set forth by the Supreme Court in Dutton. An out-of-court declaration is reliable if (1) the out-of-court statement does not contain an express assertion about past fact, (2) the possibility that the out-of-court statement is founded on a faulty recollection is extremely remote, (3) the circumstances under which the statement was made are such that it can be supposed that the declarant is not misrepresenting the facts, and (4) the declarant had personal knowledge of the matters asserted in the statement. 400 U.S. at 88-89, 91 S. Ct. at 219-220 (plurality opinion). See also Roberts, 448 U.S. at 65-66, 100 S. Ct. at 2538-2539 (same). If the out-of-court statement "falls within a firmly-rooted hearsay exception" then reliability and trustworthiness are presumed. Roberts, 448 U.S. at 66, 100 S. Ct. at 2539. In the case before us, however, none of the relevant hearsay exceptions applies. See supra, part II.B.

Turning to the Dutton indicia, we see that at least three of the four are not present here. First, Foster's out-of-court identifications contained express assertions of past fact. Second, we cannot say that the possibility is extremely remote that the out-of-court statements were founded on a faulty (or even total lack of) recollection at the time those statements were made. Third, we have no idea whether Foster's statements were based on information provided by others and whether he may therefore have unintentionally misrepresented the facts. As to the fourth indicium, it is unclear whether Foster had personal knowledge of the matters asserted in his identification of appellant. See supra, part II.C.

We have sometimes looked to other factors besides the Dutton indicia in determining whether an out-of-court statement is sufficiently trustworthy to be admitted without cross-examination. See Barker v. Morris, 761 F.2d 1396, 1403 (9th Cir. 1985). However, any such additional factors must give rise not only to a generalized belief in trustworthiness, but also to "particularized guarantees" of trustworthiness. Roberts, 448 U.S. at 66, 100 S. Ct. at 2539. In the case before us there are no circumstances which provide those "particularized guarantees." With respect to Foster's out-of-court identifications we know only that Foster made the identifications. Due to the fact that Foster had daily visitors while he was in the hospital, but does not remember any of them, there is a strong possibility that his identifications of Owens may have resulted from information provided by visitors rather than from his own perceptions at the time of the attack. In view of Foster's loss of memory we simply cannot determine on the basis of the record before us whether the out-of-court identifications are trustworthy.

Because Foster could not be subjected to cross-examination that would afford the jury a satisfactory basis for determining the truth of his out-of-court identifications, and because no "showing of particularized guarantees of trustworthiness" of the out-of-court statements was made, we conclude that appellant's rights under the Confrontation Clause were violated.¹³ 

Until recently, the law in our circuit regarding the effect of a Confrontation Clause violation was clear. In Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 1111, 39 L. Ed. 2d 347 (1974), the Court had said that if a defendant is "denied the right of effective cross-examination [there is] constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it." We construed Davis as holding that the harmless error analysis of Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), did not apply to violations of the Confrontation Clause. Rather, we said, as Davis appeared to say, that a violation of that clause necessarily mandated reversal. See, e.g., Chipman v. Mercer, 628 F.2d 528 (9th Cir. 1980); Skinner v. Cardwell, 564 F.2d 1381 (9th Cir. 1977), cert. denied, 435 U.S. 1009, 98 S. Ct. 1883, 56 L. Ed. 2d 392 (1978). However, in order to avoid automatic reversals divorced from any considerations of prejudice, our rule was that we would not find a violation of the Confrontation Clause unless the subject matter upon which a witness could not be properly cross-examined was sufficiently important. See, e.g., Chipman; Cardwell. Thus, while our rule differed from Chapman with respect to its analytical approach, the practical effect of the two rules was much the same.

The Supreme Court has now rejected our analytical approach and held that the existence of violations of the Confrontation Clause is to be determined without regard to considerations of prejudicial effect on the trial as a whole. It has also held, however, that reversal is required only under the circumstances that apply in the case of most other constitutional violations; specifically, it has now decided that the Chapman harmless error standard is applicable to violations of the Confrontation Clause. Delaware v. Van Arsdall, 106 S. Ct. 1431, 1438 (1986). Thus, we can no longer use the analysis applied in cases such as Chapman and Skinner, although our prior decisions may still be of precedential value.

The Chapman harmless error test is a strict one indeed. An error is harmless under Chapman only if the reviewing court can say it was "harmless beyond a reasonable doubt." Van Arsdall, 106 S. Ct. at 1438. In determining whether a violation of the Confrontation Clause meets the Chapman standard, we must consider, inter alia, "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and ... the overall strength of the prosecution's case." Id.

Although we have held above, see part II.C.3, that the erroneous admission of Foster's testimony was harmless error under the non-constitutional test, we must now consider whether it was harmless under the constitutional standard, because the two tests clearly utilize different standards. Under the non-constitutional test, an error is harmless if the prejudice resulting from the error was more probably than not harmless. See supra part II.C.3. However, under the strict constitutional test of Chapman, an error is harmless only if there is no "reasonable possibility that [it] might have contributed to the conviction." Chapman, 386 U.S. at 23, 87 S. Ct. at 827.

Examining the relevant factors mentioned in Van Arsdall --and we recognize that different cases may require the examination of different factors--we conclude that the error here requires reversal. Foster's testimony was certainly important; in fact, it is difficult to think of any testimony more highly material than a victim's identification of his assailant, or more prejudical to a defendant's case. The fact that the jury was informed that Foster could not remember why he had identified Owens diminishes the impact of his testimony but does not change our basic view of its effect. The remaining testimony inculpating appellant was all given by witnesses whose credibility the jury would have had every reason to question: prison inmates who had received lengthy prison terms for major felonies, who admitted having made prior statements under oath that were irreconcilable with their testimony at trial, who were quite likely aware that their parole dates might be advanced due to their cooperation with the government and whose testimony was internally inconsistent and inconsistent with each other's. Moreover, for the reasons we explained earlier, no meaningful cross-examination of Foster could be conducted with respect to the subject of his identification of the defendant. Finally, the prosecutor's case without Foster's testimony was not overwhelming. Having considered all of these facts and circumstances we cannot say that there is no reasonable possibility that Foster's testimony might have contributed to Owens' conviction. Chapman, 386 U.S. at 23, 87 S. Ct. at 827. Accordingly, the error was not harmless beyond a reasonable doubt.IV. CONCLUSION

Appellant's rights under the Confrontation Clause were violated, and the error was not harmless. We therefore reverse appellant's conviction and remand the case for a new trial.

REVERSED AND REMANDED.

BOOCHEVER, Circuit Judge, dissenting:

I must respectfully dissent because I believe the majority errs by (1) failing to remand to the district court for a factual determination whether Foster had personal knowledge of the identity of his attacker as required by Fed.R.Evid. 602, (2) holding that Foster was not "subject to cross-examination" within the meaning of Fed.R.Evid. 801(d) (1) (C), and (3) holding that Owens' right to confront Foster under the Sixth Amendment was violated.

Fed.R.Evid. 602 provides that " [a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter." (Emphasis added.) The majority concludes that the district court did not rule on the issue of Foster's personal knowledge of the identity of his assailant after the testimony at trial failed to correspond with the prosecution's offer of proof. The majority also states that it is not clear that Foster had personal knowledge of his attacker. I do not quarrel with these conclusions. The majority proceeds to dispose of the case on the Confrontation Clause issue, concluding, "we do not believe it necessary or advisable to determine whether Foster had personal knowledge of the identity of his attacker."

I would remand for a determination of the factual question of Foster's personal knowledge. If the district court finds that he did not have personal knowledge, we need not reach the constitutional issue.

If the district court on remand finds that Foster did not actually observe his attacker (or if the court is unable to make a determination), then the Rule 602 personal knowledge threshold forecloses use of his testimony. The conviction must then be reversed to permit a trial without allowing either Foster or the agent to testify as to Foster's out-of-court identification. If the district court finds that Foster did actually observe his attacker, then the personal knowledge threshold is passed, and the evidentiary and constitutional issues properly may be reached for resolution. Because I also differ from the majority's disposition of those issues, I am obliged to address them.

B. "Subject to Cross-Examination" Under Rule 801(d) (1) (C)

Rule 801(d) (1) (C) provides that a statement is not hearsay if " [t]he declarant testifies at the trial ... and is subject to cross-examination concerning the statement, and the statement is ... one of identification of a person made after perceiving him." Fed.R.Evid. 801(d) (1) (C) (emphasis added). Again it becomes clear that a finding of Foster's personal knowledge is critical to the proper determination of the propriety of his testimony. If it is found that Foster never perceived his attacker, then his testimony is inadmissible, and this determination needs no analysis into whether the rule requires effective cross-examination as to the basis underlying the identification.

Assuming arguendo that Foster did perceive his attacker, I cannot agree that he was not "subject to cross-examination" within the meaning of Rule 801. I have no objection to the majority's elucidation of Rule 801(d) (1) (C) and its rationale. I believe, however, that the requirements of the rule and its rationale were met in the cross-examination which occurred in this case. I disagree with the majority's conclusion that the extra-judicial identification may not be admitted unless the declarant is subject to cross-examination on the reasons, facts, and circumstances underlying the identification. The rule simply requires that the declarant be subject to cross-examination concerning the statement. It does not require that cross-examination of the declarant be sufficient to satisfy either the examining party or the reviewing court as to the basis for the making of the identification. The Supreme Court's recent observation concerning the role of cross-examination in fulfilling the purpose of the Confrontation Clause is apposite to the concerns of Rule 801: "Generally speaking, 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." Delaware v. Fensterer, --- U.S. ----, 106 S. Ct. 292, 295, 88 L. Ed. 2d 15 (1985) (emphasis in original). All that Rule 801 requires is the opportunity for effective cross-examination concerning the out-of-court statement. I believe Owens had that opportunity.

Foster's testimony complied with the literal terms of the rule, for he was fully available for cross-examination as to his extra-judicial identification. He testified at trial, and was both subject to cross-examination and actually cross-examined as to the basis of his prior identification. Further, neither the policy nor the rationale underlying the rule was violated. The jury had "ample opportunity to test him as to the basis of his former statement." Cross-examination elicited that at the time of trial he could not remember seeing his attacker, could not remember anything up to the point of his identification of Owens in the hospital, could not remember anything after that identification, but could "vividly" recall his statement of identification. Further, cross-examination revealed that at the time he made the statement, he knew why he had identified Owens, though he could no longer remember the reason. Thus, contrary to the majority's statement that there is no question but that Foster's memory loss was actual and complete, Foster was able to testify and be cross-examined as to what he did remember. In the face of his selective memory, I believe the jury had an adequate basis to weigh the credibility of Foster's testimony. I also observe that whether his memory loss was actual and complete is properly a question for the jury.¹ 

The importance of allowing the jury to weigh this type of testimony may be illustrated by the following analogy. Assume an attack and subsequent loss of memory as in this case, but instead of an incriminating extra-judicial identification, the victim looked at the photo-spread and stated "Owens was not the assailant." Later at trial, the victim cannot remember why he made the statement, only that he remembers vividly having made the statement, and that he had a reason for doing so. Assuming further that the victim had personal knowledge, shouldn't the statement be admitted in Owens' defense? It seems to me to be admissible and, if so, I see no reasoned basis under Rule 801(d) (1) (C) for distinguishing incriminating out-of-court statements.

Because Rule 801 requires no more than the opportunity to cross-examine a declarant as to an out-of-court prior identification, and because Foster was fully subject to cross-examination within the meaning of the rule, his testimony was admissible under the rule.

It is only if Foster's testimony is determined not to be hearsay that the court properly reaches the Confrontation Clause issue. Again assuming arguendo that Foster had personal knowledge of his assailant, I disagree with the majority's holding that Foster was not subject to cross-examination sufficient to satisfy the requirements of the Sixth Amendment.

As a preliminary matter, I disagree with the majority's characterization of this case as presenting the question that was identified but left open by the Supreme Court in California v. Green, 399 U.S. 149, 168-70, 90 S. Ct. 1930, 1940-41, 26 L. Ed. 2d 489 (1970), and Delaware v. Fensterer, --- U.S. ----, 106 S. Ct. 292, 295, 88 L. Ed. 2d 15 (1985). That question concerns an out-of-court statement of identification made by a witness who has no memory whatsoever of either the event itself or the making of the extrajudicial identification. In Fensterer, the Court said

We need not decide today the question raised but not resolved in Green. As Green 's framing of that question [whether there are circumstances in which a witness' lapse of memory may so frustrate any opportunity for cross-examination that admission of the witness' direct testimony violates the Confrontation Clause] indicates, the issue arises only where a "prior statement," not itself subjected to cross-examination and the other safeguards of testimony at trial, is admitted as substantive evidence.

106 S. Ct. at 295 (emphasis added). The unresolved question would be presented only if the statement had been introduced without Foster testifying or without his having any recollection of making the out-of-court statement. Here, as I have indicated, Foster was available for cross-examination and was actually cross-examined concerning his prior statement.

The majority errs by equating the requirement of forcing the declarant to submit to cross-examination, Green, 399 U.S. at 158-59, 90 S. Ct. at 1935-36, with the question of whether it was possible for Owens to cross-examine him effectively. " 'The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.' " Fensterer, 106 S. Ct. at 294-95 (quoting Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1109-10, 39 L. Ed. 2d 347 (1974), quoting 5 J. Wigmore, Evidence Sec. 1395 (3d ed. 1940)) (emphasis in original). "Generally speaking, 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." Fensterer, 106 S. Ct. at 295 (emphasis in original). Foster answered all questions put to him; he stated what he could remember and what he could not remember. He was thus subjected to cross-examination as required by Green.

The majority finds that in this case, however, the type and extent of cross-examination to which Foster could be subjected could not serve to expose several of the dangers surrounding out-of-court identification--misperception and failure of memory. To the contrary, the cross-examination directly addressed these issues. The questioning elicited that Foster could not remember seeing his assailant, nor could he remember why he identified Owens in the hospital. This was an adequate basis for counsel to argue that Foster's selective memory is not credible, and to permit the jury to make its determination of the weight to accord his testimony.

I am unconvinced by the majority's attempt to distinguish Fensterer. If a jury can be permitted to draw inferences regarding the reliability of an expert witness in the face of that witness' actual loss of memory as to the basis of his opinion, why cannot a jury also draw inferences regarding Foster's reliability in the face of his selective memory?

I also am struck by the curious result of the majority's analysis. In a case like Green, involving a witness who professed a lack of memory which the court found to be incredible or unbelievable, the jury will be permitted to hear the former statement and exercise its function of measuring the witness' credibility. If the court finds the memory loss believable, as in this case, then it will not permit the jury to hear the testimony. It is the jury's function to determine whether Foster's memory loss is actual and complete. We should not preempt the jury from exercising its role.

The Supreme Court has found Confrontation Clause violations when a court has denied the right to cross-examination, e.g., Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 1069, 13 L. Ed. 2d 923 (1965), when a court has limited cross-examination of a principal witness on a material issue such as bias, e.g., Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), and when cross-examination has been completely thwarted by a witness' refusal to answer any questions, e.g., Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965). The Court has never found a denial of the right of confrontation when a witness responds concerning some relevant events but alleges a loss of memory as to others. In its Fensterer decision, the Court addressed an almost identical issue and found no violation. We should follow that teaching.