Delaware v. Fensterer

Supreme Court of the United States · 1985 · Evidence

EvidenceConfrontation ClauseExpert testimonyCross-examinationSixth AmendmentConfrontation Clauseexpert witnessmemory lapse

Facts

Fensterer was convicted of murdering his fiancee, and the State's circumstantial case sought to show that a cat leash was the murder weapon. An FBI hair expert, Agent Robillard, testified that one hair found on the leash had been forcibly removed, but he could not recall which of three possible methods he had used to reach that conclusion. The trial court admitted the testimony over objection, treating the expert's inability to specify the basis as going to weight rather than admissibility. The defense cross-examined Robillard about his memory lapse and presented its own expert, who testified that Robillard had earlier indicated he relied on the presence of a follicular tag and then challenged that premise as scientifically unsupported.

Issue

Does the Sixth Amendment Confrontation Clause bar admission of a prosecution expert's opinion when the expert testifies in court, is subject to cross-examination, but cannot recall the specific basis for that opinion? Also, did the prosecution's knowledge of that memory lapse create a federal constitutional duty to withhold the testimony?

Rule

When a witness appears at trial and the defense is given a full and fair opportunity to cross-examine him, the Confrontation Clause is generally satisfied even if the witness's testimony is marred by forgetfulness, confusion, or evasion. The 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.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a homicide trial in Phoenix, the prosecution calls forensic odontologist Nina Mercer from Sonoran Trace Laboratory. Mercer testifies that bite marks on a plastic strap are consistent with the victim's dentition, but she says she can no longer remember which of several comparison features most influenced her conclusion. Defense counsel cross-examines her extensively about her memory failure and argues to the jury that her opinion is unreliable.

Did admission of Mercer's testimony violate the Sixth Amendment Confrontation Clause?

Explanation. The majority rule is that the Confrontation Clause generally guarantees an opportunity for effective cross-examination, not cross-examination effective in whatever way the defense prefers. Where the witness testifies in court, under oath, in the defendant's presence, and the trial court imposes no limit on questioning, forgetfulness about the basis for the opinion does not itself create a Confrontation Clause violation. The memory lapse gives the defense material to attack weight and reliability before the jury.