*1 DELAWARE v. FENSTERER No. 85-214. Decided November *2 Per Curiam. Supreme case, the Delaware Court reversed re- grounds
spondent conviction on the William Fensterer’s prosecution’s of the the admission to the basis for his witness, who was unable recall opinion, respondent denied his Sixth Amendment (1985). against him. 493 A. 2d confront witnesses concludethat the Delaware Court misconstrued We interpreted by the decisions of the Confrontation Clause as this Court.
I Steph- Respondent murdering fiancée, was convicted of Ann The case was on circumstan- anie Swift. State’s based proceeded theory respondent and on the evidence, tial strangled a cat leash. establish that the had Swift with To weapon, sought prove cat leash was murder State leash hairs found on the were similar Swift’s that two forcibly had one of those hairs been removed. hair, and that prove theories, these the State relied on the To Agent Special Federal Bureau of Allen Robillard Investigation. one had testified that of the hairs been trial,
At Robillard opinion, forcibly explained in his there that, removed. He forcibly determining methods that a hair has are three (1) tag present if been removed: the follicular hair, on the (2) (3) elongated misshaped, if the root is or if a sheath of skin surrounds the root. However, Robillard went toon “ say my specific ‘I I have reviewed notes, and have no knowledge particular way I as to the determined the forcibly hair was removed other than fact that one forcibly hairs was those removed.”’ at 963. On cross- again examination, Robillard was unable to recall employed which method he had to determine that the hair forcibly explained had been removed. He also that what he by “forcibly meant removed” was no than more that the hair have could “‘brushing your been removed as little force is entailed through your brushing your hand or head respond- hair.’” Pet. for Cert. 7. trial court overruled *3 objection ent’s that the admission of Robillard’s precluded adequate testify cross-examination unless he could upon, explaining as to which of the three theories he relied objection weight that in its view this went to the of the evi- admissibility. dence rather than its analysis, its The defense offered own in hair Dr. agreed Agent Peter DeForest, who with Robillard that the were hairs similar to Swift’s. Doctor DeForest testified that he had observed that one of the hairs had a follicular tag. by spoken telephone He also testified that he had with him Robillard, who advised that his conclusion of forcible re- presence tag. App. moval was based on of the the follicular proceeded to Pet. for Cert. Doctor D-2. DeForest then challenge premise theory pres- the of Robillard’s the —that tag According ence of a follicular indicates forcible removal. adequate study supported DeForest, to Dr. no scientific that tag premise, and a follicular could be attached to hairs that naturally fall out. appeal, Supreme
On the Delaware Court reversed re- spondent’s authority conviction the on of the Confrontation Noting primary “[t]he Clause. that interest secured right is the 493 A. cross-examination,” 2d, at “[effective court that reasoned opinion discrediting Agent at minimum re- Robillard’s a opinion.” quired the basis that commit himself to he omitted). (footnote acknowledg- such Absent an Id., opinion, of his the court believed ment of basis Agent noth- cross-examination of “defense counsel’s futility.” ing Ibid. court more than an exercise Since possibility have that Robillard could not rule out could “completely as to had he committed himself discredited” been theory re- it held that based, his conclusionwas effectively spondent cross-examine denied his “was Accordingly, key reversed Ibid. court state witness.” reaching respondent’s Ro- additional claim without pertinent Del- under was inadmissible billard’s now reverse the Delaware Rules of Evidence. We aware inability holding Robillard’s Court’s whereby opinion at his rendered recall the method he arrived rights respondent’s the admission of violative under Confrontation Clause.
1—I
fall
cases
into two broad
This Court’s Confrontation Clause
involving
categories: cases
the admission of out-of-court
imposed by
involving restrictions
law
statements and cases
scope
court on the
of cross-examination.
or
trial
*4
longstanding recognition
category
the
first
reflects
Court’s
right
the time
the "literal
to ‘confront’
witness at
by . . . forms the core of the values furthered
of trial
149,
v.
399 U. S.
Clause.”
Confrontation
California
(1970).
as
v.
448
56
Roberts,
157
Cases such Ohio
U. S.
(1980),
(1970),gave
Evans,
and Dutton v.
This to introduce an attempt the State made no because category, any Robillard for by Agent purpose, statement out-of-court restrictions the Con- Therefore, hearsay. let alone as hear- of admissible range on “the places frontation Clause supra, Roberts, called into play. are not say,” trial here, for the is also inapplicable The second category counsel’s of defense limit the or nature scope court did not has recognized The Court any way. to delve into not only permitted cross-examiner is that “the mem- perceptions to test the witness’ story the witness’ i. e., discredit, . . . allowed to impeach, but ory, [also] Davis, not follow 316. But it does S., 415 U. witness.” the State when- is denied to cross-examine of dis- one method of memory impedes witness’ lapse ever the can- witness who expert an Quite obviously, him. crediting find jury invites opinion the basis for not recall That the de- memory. as his is as unreliable his theory, a particular to embrace might prefer fense is irrelevant. vigor, with special to refute it is prepared “ to secure of confrontation purpose main and essential ‘The *5 20 opportunity opponent the cross-examination.’” of
for Wigmore, (quoting §1395, Evidence 5 J. Id., at 315-316 (3d 1940) Generally original)). (emphasis p. in ed. opportu- guarantees speaking, an Clause the Confrontation nity cross-examination, not cross-examination effective way, extent, in and to whatever effective whatever that is might S., n. Roberts, U. wish. See the defense (even only opportunity defense has to cross- where except hearing, preliminary in is at a the declarant examine “extraordinary provided inef- defense counsel cases” where inquiry proceeding, representation “no at the earlier fective required”). This conclusion is con- ‘effectiveness’ is into reliability assurances of our cases fact that the firmed fully cross-examination are satis- in the have found notwithstanding one, the witness’ in such as this fied inability cases opinion: the factfinder can for his to recall basis cross-examination, under demeanor the witness’ observe presence testifying in of the under oath and the the witness n. 6. id., accused. See are circumstances decide whether there need not
We may any oppor- memory lapse frustrate so a witness’ which tunity that admission witness’ for cross-examination In Clause. violates Confrontation direct Robillard defense counsel’s case, jury Robillard could not even re- to the demonstrated theory Moreover, based. which his call the sug- expert through witness, the defense was able its own theory jury gest on a that Robillard had relied to the considered baseless. the defense certainly requires than this. no more professed Although supra, involved a witness who support memory lapse case lends no stand, on the a pertinent part, respondent. was a case which Green police of a transac- informed a officer minor named Porter drugs. supplied him At with he claimed Green tion which professed to recall how he obtained to be unable Porter trial, *6 drugs. prosecution prior The then Porter’s introduced inconsistent statements as substantive evidence.
U. S., at 152. This held “the Court Confrontation require excluding prior Clause not does from evidence the making statements a who of witness concedes the state- may explain ments, and who be to or asked defend otherwise inconsistency prior present between his and his version of question, opening events thus himself to full cross- at trial Id., examination as to both stories.” at 164. How- posture ever, the Court also concluded in the that, of that “[wjhether premature question it case, would be to reach the apparent lapse memory Porter’s so affected Green’s appli- to cross-examine to make critical difference in the cation of .” the Confrontation Clause . . . Id., at 168. argue connection, noted Court that even some who “prior statements be should admissible as substantive apply rule evidence” believe that this should not to “the case present knowledge of a who all witness disclaims ulti- opportunities event,” mate because “in such a case the for testing prior through statement cross-examination at may significantly trial be diminished.” n. 18 (citations omitted). today question
We need not decide raised but not re- Green’s, framing question solved in As Green. indi- only “prior cates, the issue arises where a not statement,” it- subjected safeguards self to cross-examination and other at trial, is admitted as substantive evidence. case, Since there is no such out-of-court statement in this adequacy opportunity of a later to cross-examine, as a substi- tute for at the time the declaration was question made, is not in here. Agent inability cases, then,
Under the Court’s Robillard’s opinion presents to recall on the stand the basis for his none perils protects from which the Confrontation Clause proceedings. in criminal defendants Confrontation guarantee every no Clause includes "witnesscalled from that marred refrain giving will prosecution confusion, contrary, To the or evasion. forgetfulness, when the defense generally Clause is satisfied these opportunity probe expose a full and fair is given thereby calling to the cross-examination, infirmities through scant giving weight the factfinder the reasons attention of we that the ad- hold testimony. Accordingly, the witness’ Robillard’s did not of- evidence of mission into despite inability recall the Confrontation fend *7 for that opinion. the basis Court also to have be Supreme appears
The Delaware obligation “serious that the breached its prosecution lieved defendant’s cross-examination not to obstruct criminal 963, the 2d, seemingly 493 A. because testimony,” expert knew in that Robillard would be advance prosecution testified at for his when he opinion unable recall basis agree While we would Robillard's trial. voir dire alerted both examination must be taken have see memory, to his lapse and defense prosecution A-l, prose in we do not think to Brief Opposition
App. from Robillard unless it calling to refrain obliged cution was or not, his recollection. Whether refresh could somehow should have been admit law, Robillard’s opinion under state in forbids evidence, into the Federal Constitution nothing ted the trial court this case: that the reached the conclusion for went the basis his to the inability opinion to recall expert’s United admissibility. not its See evidence, of the weight Bastanipour, (CA7 States 170, 1982), 697 F. 2d 176-177 v. (1983). so, That denied, being pros U. S. cert. would be unable to its foreknowledge ecution’s not an obliga did precise opinion impose basis give from intro of due to refrain it, process, on as a matter tion the basis for testi unless expert’s testimony ducing We need not decide be ascertained. definitely could mony no of an with basis expert opinion the introduction whether so reliability, so and lacking prejudicial, ever be could deny trial. of Dr. DeFor- a defendant a fair The suggesting basis for Robillard’s est, the actual disputing validity, utterly dispels any possibil- vigorously its ity case. of such a claim in this judgment petition granted, is for certiorari and the is re- reversed, Court case
Delaware proceedings further not manded to court for inconsistent opinion. this with
It is so ordered. summary dispo dissents from this Justice Marshall affording parties ordered sition, has been without opportunity prior notice or an to file briefs the merits. (1983) Maggie v. 462 U. 120-121 (Mar S. Fulford, See Wyrick dissenting); 459 U. 51-52 J., Fields, v. S. shall, (1982) dissenting). J., (Marshall, would certiorari and grant give
Justice Blackmun case consideration. plenary Stevens, concurring judgment.
Justice *8 Summary supreme application of a state court’s reversal police to its own federal constitutional strictures stultify prosecutors cases of kind tends to in novel this orderly development I Because law. believe courts latitude in admin- should allow state some Court deny law,1 I criminal voted certiorari. istration their (1985) Carney, 471 395 386, U. S. (Ste- Cf. v. California dissenting). vens, J., question I find the issue much closer merits,
the On Green, v. 399 U. S. 168-170 reserved California Chief Justice (1970), S. 399 U. v. California importance allowing separately emphasize the States wrote “to innovate, especially justice.” area of criminal He experiment and drafted, originally nor correctly “neither Constitution observed that need, amendment, any dictates that we must have absolute any nor indeed in all uniformity in the law the States.” 171-172. criminal question (1970), reserved Green the Court. The than does admissibility state- an earlier out-of-court concerned any by disclaimed of which Porter the witness Porter ment question present trial.2 The at the time of recollection admissibility today anof concerns the the Court decided dis- a witness who conclusion reached out-of-court earlier any present that con- of the basis for recollection claims carefully reserving question The reasons clusion. persuade decided this case should not be me that in Green argument. has Nevertheless, because the Court full without summarily, I granted to act because and decided certiorari persuaded violated, that the Federal Constitution not am remains free to rein- Court the State and because interpretation judgment of state the basis of its state its judgment. reluctantly in the I concur law, *9 lapse memory affected apparent so Green’s Porter’s “Whether application critical difference as to make a cross-examine ripe which is not for decision in this case is an issue omitted). id., (footnote at 168-169. See also juncture” n. 18.