Delaware v. Fensterer
Opinion of the Court
In this case, the Delaware Supreme Court reversed respondent William Fensterer’s conviction on the grounds that the admission of the opinion testimony of the prosecution’s expert witness, who was unable to recall the basis for his opinion, denied respondent his Sixth Amendment right to confront the witnesses against him. 493 A. 2d 959 (1985). We conclude that the Delaware Supreme Court misconstrued the Confrontation Clause as interpreted by the decisions of this Court.
I
Respondent was convicted of murdering his fiancée, Stephanie Ann Swift. The State’s case was based on circumstantial evidence, and proceeded on the theory that respondent had strangled Swift with a cat leash. To establish that the cat leash was the murder weapon, the State sought to prove that two hairs found on the leash were similar to Swift’s hair, and that one of those hairs had been forcibly removed. To prove these theories, the State relied on the testimony of Special Agent Allen Robillard of the Federal Bureau of Investigation.
At trial, Robillard testified that one of the hairs had been forcibly removed. He explained that, in his opinion, there are three methods of determining that a hair has forcibly
The defense offered its own expert in hair analysis, Dr. Peter DeForest, who agreed with Agent Robillard that the hairs were similar to Swift’s. Doctor DeForest testified that he had observed that one of the hairs had a follicular tag. He also testified that he had spoken by telephone with Robillard, who advised him that his conclusion of forcible removal was based on the presence of the follicular tag. App. to Pet. for Cert. D-2. Doctor DeForest then proceeded to challenge the premise of Robillard’s theory — that the presence of a follicular tag indicates forcible removal. According to Dr. DeForest, no adequate scientific study supported that premise, and a follicular tag could be attached to hairs that naturally fall out.
On appeal, the Delaware Supreme Court reversed respondent’s conviction on the authority of the Confrontation Clause. Noting that “[t]he primary interest secured by the Clause is the right of cross-examination,” 493 A. 2d, at 963,
1 — I
This Court’s Confrontation Clause cases fall into two broad categories: cases involving the admission of out-of-court statements and cases involving restrictions imposed by law or by the trial court on the scope of cross-examination. The first category reflects the Court’s longstanding recognition that the "literal right to ‘confront’ the witness at the time of trial . . . forms the core of the values furthered by the Confrontation Clause.” California v. Green, 399 U. S. 149, 157 (1970). Cases such as Ohio v. Roberts, 448 U. S. 56 (1980), and Dutton v. Evans, 400 U. S. 74 (1970), gave rise to Confrontation Clause issues “because hearsay evidence was admitted as substantive evidence against the defendants.” Tennessee v. Street, 471 U. S. 409, 413 (1985). Cf. Bruton v. United States, 391 U. S. 123 (1968).
This case falls in neither category. It is outside the first category, because the State made no attempt to introduce an out-of-court statement by Agent Robillard for any purpose, let alone as hearsay. Therefore, the restrictions the Confrontation Clause places on “the range of admissible hearsay,” Roberts, supra, at 65, are not called into play.
The second category is also inapplicable here, for the trial court did not limit the scope or nature of defense counsel’s cross-examination in any way. The Court has recognized that “the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but [also] . . . allowed to impeach, i. e., discredit, the witness.” Davis, 415 U. S., at 316. But it does not follow that the right to cross-examine is denied by the State whenever the witness’ lapse of memory impedes one method of discrediting him. Quite obviously, an expert witness who cannot recall the basis for his opinion invites the jury to find that his opinion is as unreliable as his memory. That the defense might prefer the expert to embrace a particular theory, which it is prepared to refute with special vigor, is irrelevant. “ ‘The main and essential purpose of confrontation is to secure
We need not decide 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. In this case, defense counsel’s cross-examination of Agent Robillard demonstrated to the jury that Robillard could not even recall the theory on which his opinion was based. Moreover, through its own expert witness, the defense was able to suggest to the jury that Robillard had relied on a theory which the defense expert considered baseless. The Confrontation Clause certainly requires no more than this.
Although Green, supra, involved a witness who professed a lapse of memory on the stand, that case lends no support to respondent. In pertinent part, Green was a case in which a minor named Porter informed a police officer of a transaction in which he claimed Green supplied him with drugs. At trial, Porter professed to be unable to recall how he obtained
We need not decide today the question raised but not resolved in Green. As Green’s, framing of that question 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. Since there is no such out-of-court statement in this case, the adequacy of a later opportunity to cross-examine, as a substitute for cross-examination at the time the declaration was made, is not in question here.
Under the Court’s cases, then, Agent Robillard’s inability to recall on the stand the basis for his opinion presents none of the perils from which the Confrontation Clause protects defendants in criminal proceedings. The Confrontation Clause includes no guarantee that every "witness called by the
The Delaware Supreme Court also appears to have believed that the prosecution breached its “serious obligation not to obstruct a criminal defendant’s cross-examination of expert testimony,” 493 A. 2d, at 963, seemingly because the prosecution knew in advance that Agent Robillard would be unable to recall the basis for his opinion when he testified at trial. While we would agree that Robillard's testimony at the voir dire examination must be taken to have alerted both the prosecution and the defense to his lapse of memory, see App. to Brief in Opposition A-l, we do not think the prosecution was obliged to refrain from calling Robillard unless it could somehow refresh his recollection. Whether or not, under state law, Robillard’s opinion should have been admitted into evidence, nothing in the Federal Constitution forbids the conclusion reached by the trial court in this case: that the expert’s inability to recall the basis for his opinion went to the weight of the evidence, not its admissibility. See United States v. Bastanipour, 697 F. 2d 170, 176-177 (CA7 1982), cert. denied, 460 U. S. 1091 (1983). That being so, the prosecution’s foreknowledge that its expert would be unable to give the precise basis for his opinion did not impose an obligation on it, as a matter of due process, to refrain from introducing the expert’s testimony unless the basis for that testimony could definitely be ascertained. We need not decide whether the introduction of an expert opinion with no basis could ever be so lacking in reliability, and so prejudicial, as to
The petition for certiorari is granted, the judgment of the Delaware Supreme Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
It is so ordered.
Concurring Opinion
concurring in the judgment.
Summary reversal of a state supreme court’s application of federal constitutional strictures to its own police and prosecutors in novel cases of this kind tends to stultify the orderly development of the law. Because I believe this Court should allow state courts some latitude in the administration of their criminal law,
On the merits, I find the issue much closer to the question reserved in California v. Green, 399 U. S. 149, 168-170
In California v. Green, 399 U. S. 149, 171 (1970), The Chief Justice wrote separately “to emphasize the importance of allowing the States to experiment and innovate, especially in the area of criminal justice.” He correctly observed that “neither the Constitution as originally drafted, nor any amendment, nor indeed any need, dictates that we must have absolute uniformity in the criminal law in all the States.” Id., at 171-172.
“Whether Porter’s apparent lapse of memory so affected Green’s right to cross-examine as to make a critical difference in the application of the Confrontation Clause in this case is an issue which is not ripe for decision at this juncture” (footnote omitted). Id., at 168-169. See also id., at 169, n. 18.
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