California, United States of America
The following excerpt is from People v. Bustillos, G044598 (Cal. App. 2012):
the witness pretended not to remember did not violate the confrontation clause, stating: "The circumstance of feigned memory loss is not parallel to an entire refusal to testify. The witness feigning memory loss is in fact subject to cross-examination, providing a jury with the opportunity to see the demeanor and assess the credibility of the witness, which in turn gives it a basis for judging the prior hearsay statement's credibility. '[W]hen a hearsay declarant is present at trial and subject to unrestricted cross-examination . . . the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness' demeanor satisfy the constitutional requirements.' [Citation.] In the face of an asserted loss of memory, these protections 'will of course not always achieve success, but successful cross-examination is not the constitutional guarantee.' [Citation.]" (Gunder, supra, 151 Cal.App.4th at p. 420; see also People v. Perez, supra, 82 Cal.App.4th at pp. 765-766 [pre-Crawford case rejecting argument witness's claimed inability to remember denied the defendant right to confrontation].)
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