Rape victim’s lack of memory during cross-examination was not a “refusal to answer” that would justify exclusion of her testimony. Noriega was convicted of multiple counts of aggravated sexual assault of a child by means of rape based on evidence that he raped and sodomized his stepdaughter, Jane Doe, starting when she was five. Doe was 16 years old at the time of trial. She testified very reluctantly and was evasive. During cross-examination she stated that she could not remember certain details about her prior testimony. Noriega unsuccessfully moved to strike the testimony, arguing that he was prevented from effectively cross-examining Doe. On appeal he claimed that admission of Does testimony violated his right to confront witnesses. Held: Affirmed. A defendant has an absolute right to confront and cross-examine the witnesses against him. Where a witness is unavailable or refuses to submit to cross-examination, the usual remedy is to strike all or part of the witness’ testimony. However, a witness with genuine memory loss is considered available for a defendant’s cross-examination. Here, the record showed that Doe was traumatized and emotionally damaged, and equally evasive to both the prosecution and defense. Even if she had made up the memory lapses, the jury could determine her credibility by her demeanor and actions on the stand and was properly instructed on inconsistent testimony. The trial court did not abuse its discretion by failing to strike her testimony.
Trial counsel was not ineffective in failing to object to witness’s comment on defendant’s failure to testify. At trial, Doe’s older sister K.A. testified that Noriega also had sex with her. She explained that she was testifying because she didn’t like the fact that Noriega knew what he did and that “he still wants to sit here and deny everything.” Defense counsel did not object. On appeal, Noriega argued that this comment violated his Fifth Amendment right to remain silent, citing Griffin v. California (1965) 380 U.S. 609, and that trial counsel was ineffective for failing to object. The Court of Appeal disagreed. Griffin held that the Fifth Amendment forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt. There is no California authority that supports a claim that a witness’s testimony concerning a defendant testifying constitutes Griffin error. As a result, reasonably competent counsel would not have raised a Griffin error objection to K.A.’s statements and trial counsel was not ineffective in failing to make a futile objection. There was also no prejudice. The court declined to extend Griffin to include a witness’s testimony and did not agree with Fifth Circuit Court of Appeals cases holding that the Fifth Amendment also prohibits a witness from commenting on a defendant’s failure to testify.