“Memory-Loss Witnesses & the Confrontation Clause”
Seventh Circuit Reaffirms Adequacy-of-Opportunity Standard in United States v. Derrick Swanson & Pierre Robinson

1. Introduction

On 9 July 2025 the United States Court of Appeals for the Seventh Circuit handed down a decision in the consolidated appeals of United States v. Derrick Swanson and United States v. Pierre Robinson (Nos. 23-1498 & 23-2171). The case arose out of two gang-related murders committed by members of “Evans Mob” in Chicago’s Chatham neighborhood. Derrick Swanson pled guilty and cooperated; Pierre Robinson went to trial and was convicted. On appeal:

• Robinson argued that admission of his cousin Anise’s prior statements—identifying him as the shooter despite her genuine post-partum memory loss—violated the Confrontation Clause and that trial counsel rendered ineffective assistance.
• Swanson challenged a supervised-release search condition, asserting a discrepancy between the judge’s oral pronouncement and the written judgment.

Judge Amy J. St. Eve, writing for a unanimous panel (St. Eve, Lee, Maldonado JJ.), rejected all challenges and affirmed the convictions and sentences. Most notably, the Court clarified the standard for evaluating Confrontation Clause objections where a declarant suffers genuine memory loss.

2. Summary of the Judgment

1. Confrontation Clause. Admission of Anise’s recorded police interview and grand-jury testimony was constitutional because Robinson had a realistic opportunity to cross-examine her at trial—even if her forgetfulness was pervasive and bona fide.
2. Ineffective Assistance. Robinson’s Strickland claim failed on the trial record; alleged omissions were strategic choices and not plainly deficient.
3. Supervised Release. Swanson’s written search condition (Model Condition 23) did not conflict with the court’s oral ruling, which only excused unannounced workplace visits (Model Condition 16).

3. Analysis

3.1 Precedents Cited & Their Influence

• Owens v. United States, 484 U.S. 554 (1988)
  Established that Confrontation is satisfied if the defendant can ask the witness about prior statements, even when the witness no longer remembers the underlying events.
• Delaware v. Fensterer, 474 U.S. 15 (1985)
  Articulated the “adequate opportunity” test: cross-examination need not be efficacious, merely available.
• Crawford v. Washington, 541 U.S. 36 (2004)
  Requires availability of testimonial declarants for cross-examination; Seventh Circuit applied Crawford but emphasized the sufficiency of presence plus opportunity.
• Seventh-Circuit authorities—Keeter (1997), Shaffers (2022), Norwood (2020)—reinforced the Circuit’s consistent reading that forgetfulness ≠ unavailability.
• Strickland v. Washington, 466 U.S. 668 (1984)
  Governs ineffective-assistance claims; court emphasized higher hurdles on direct appeal.
• Olano, 507 U.S. 725 (1993) and Rule 52(b)
  Framework for plain-error review, used to evaluate Robinson’s ineffective-assistance allegations.

3.2 Court’s Legal Reasoning

The panel’s reasoning tracks two doctrinal threads—evidentiary hearsay exceptions and the Sixth Amendment confrontation right:

1. Rule 801(d)(1)(A) gateway. Anise’s grand-jury testimony and police interview qualified as prior inconsistent statements given under oath and were therefore non-hearsay. The district court accordingly admitted the statements substantively.
2. Opportunity, not Effectiveness. Framing the constitutional question, the Court reaffirmed that the Clause does not demand cross-examination … that is effective in whatever way the defense might wish (quoting Owens). What matters is that the defendant could confront and probe the witness’s defects—bias, perception, memory.
3. Pervasive but Confrontable Amnesia. Even assuming Anise’s memory loss was genuine and complete, Robinson cross-examined her on: friendship with the victim’s sister, prior hostility toward Robinson, gang ties, and inability to recall the surveillance video. Thus, the jury heard the weaknesses; confrontation satisfied.
4. Ineffective-Assistance Framework. The Court reminded appellants that direct appeals are ill-suited for Strickland claims because evidentiary gaps preclude insight into counsel’s strategy. Counsel’s choices—e.g., not arguing feigned amnesia, not requesting a special jury instruction—were not plainly beyond professional norms.
5. Sentencing Discrepancy Doctrine. Oral pronouncement governs when genuinely inconsistent with the written judgment. Here, Model Condition 23 merely clarified the scope of the judge’s oral exclusion of warrantless visits; no conflict existed.

3.3 Potential Impact of the Judgment

• Confrontation Clause Trajectory. The opinion cements, within the Seventh Circuit, that genuine memory loss alone does not strip a defendant of confrontation rights—continuing a line of cases post-Owens. Future litigants will face a higher bar when arguing that amnesia renders cross-examination “meaningless.”
• Trial Strategy Signposts. Defense counsel confronting an amnesiac witness should build a record of why cross-examination is ineffective (e.g., medical causes precluding any substantive questioning), otherwise the appellate court will default to the “opportunity” principle.
• Supervised-Release Drafting. Sentencing courts in the Seventh Circuit may rely on Model Conditions and incorporate them by reference, provided defendants waive oral recitation. Defense attorneys should object explicitly—on the record—if they seek to excise any portion of Model Condition 23.
• Direct-Appeal Ineffective-Assistance Claims. The Court’s cautionary language signals that it might, in the future, revisit whether such claims should be entertained at all on direct appeal, foreshadowing a possible procedural tightening.

4. Complex Concepts Simplified

Confrontation Clause

The Sixth-Amendment right of a criminal defendant to face the witnesses against him in court and to test their credibility via cross-examination.

Prior Inconsistent Statement (Rule 801(d)(1)(A))

An earlier statement by a witness under oath that conflicts with the witness’s current testimony. Under the Rule, such statements are treated as not hearsay and may be admitted for their truth if the witness now testifies and is subject to cross-examination.

Amnesiac Witness

A witness who cannot recall some or all events about which they previously testified. Legally, amnesia alone does not render the witness “unavailable.”

Plain-Error Review

Appellate standard applied when an error was not raised in the district court. The appellant must show (1) error, (2) clear or obvious, (3) affecting substantial rights, and (4) seriously affecting the fairness or integrity of judicial proceedings.

Model Conditions (Supervised Release)

Standardized federal conditions that probation officers and judges use to structure supervised release. Conditions 16 and 23 deal, respectively, with unannounced visits and reasonable-suspicion searches.

5. Conclusion

United States v. Swanson & Robinson reinforces a pragmatic reading of the Confrontation Clause: presence + opportunity = compliance. Even where a witness’s memory has been medically compromised, so long as cross-examination can expose the loss and any potential bias, prior testimonial statements remain admissible. The Court’s discussion of supervised-release conditions and direct-appeal Strickland claims further clarifies procedural expectations in the Seventh Circuit.

Practitioners should note three takeaways:

1. Challenge amnesiac testimony strategically. Success will likely require showing that cross-examination is illusory, not merely less effective.
2. Create a full record. Ineffective-assistance claims should normally be reserved for §2255 motions where factual development is possible.
3. Specify supervised-release objections with precision. Ambiguous objections or waivers at sentencing will allow courts to interpret written conditions broadly.

In sum, the Seventh Circuit’s ruling offers a detailed roadmap for trial courts and litigants grappling with testimonial hearsay from memory-impaired witnesses, while quietly signaling a tightening of procedural avenues for challenging counsel’s performance on direct appeal.