Is a witness who feigns a lack of memory available for cross-examination under the confrontation clause?

In People v. Gunder (2007) 151 Cal.App.4th 412, 419, the appellate court rejected the defendant's argument that "a witness who appears at trial but feigns a lack of memory should nonetheless be considered unavailable," thereby rendering such a witness's prior statements inadmissible under the confrontation clause. The defendant in Gunder had argued that, unlike a witness with genuine memory loss who is considered available for cross-examination, "a witness who refuses to answer questions through a feigned memory loss should be deemed the equivalent of a witness who entirely refuses to answer questions." (Ibid.) The appellate court held that the admission of a trial witness's prior statement after the witness feigned memory loss 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.]" (People v. Gunder, supra, 151 Cal.App.4th at p. 420; cf. People v. Butler (2005) 127 Cal.App.4th 49, 59 [witnesses at trial who

Page 13

denied making prior inconsistent statements were available for cross-examination]; People v. Perez (2000) 82 Cal.App.4th 760, 765-766 [in pre-Crawford case, court rejects argument that witness's claimed inability to remember denied defendant the right to confrontation].)