| Abstract | This article examines the opinion of the U.S. Supreme Court in the case United States v. Owens. In United States v. Owens, the Supreme Court concluded that the admission of prior, out-of-court statements of identification offered when the witness is not able to recall the basis for his or her identification does not violate the sixth amendment confrontation clause, provided that the declarant testifies at trial and is subject to cross-examination. The Supreme Court further held that the confrontation clause does not guarantee that cross-examination will be successful, but only that there will be an opportunity for effective cross-examination. The Court also held that memory loss by a witness, resulting in no memory of the basis for a prior, out-of-court identification, does not violate either the sixth amendment confrontation clause or Federal Rule of Evidence 802. By ignoring the limitations set forth in the relevant precedents and legislative history, the Court interpreted the scope of both the confrontation clause and Federal Rule of Evidence 801(d)(l)(C) in an erroneous manner. The Court's reasoning is erroneous based upon the legislative history behind the Federal Rules of Evidence and a close reading of prior case law on the confrontation clause. The Owens Court failed to recognize substantive along with procedural aspects of cross-examination under the confrontation clause and "subject to cross-examination concerning the statement" under Federal Rule of Evidence 801(d)(l)(C). Unfortunately, this defect in reasoning undermines both the purposes behind the confrontation clause to give a complete opportunity to examine and expose the common deficiencies found in many witnesses' testimony, such as "forgetfulness, confusion, or evasion," and to aid in the truth-finding and reliability functions of confrontation and the purpose of Federal Rule of Evidence 801(d)(l)(C) to increase reliability and fairness by allowing prior, out-of-court identifications.
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