dissenting:
I must respectfully dissent because I believe the majority errs by (1) failing to remand to the district court for a factual determination whether Foster had personal knowledge of the identity of his attacker as required by Fed.R.Evid. 602, (2) holding that Foster was not “subject to cross-examination” within the meaning of Fed.R.Evid. 801(d)(1)(C), and (3) holding that Owens’ right to confront Foster under the Sixth Amendment was violated.
A. Personal Knowledge
Fed.R.Evid. 602 provides that “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.” (Emphasis added.) The majority concludes that the district court did not rule on the issue of Foster’s personal knowledge of the identity of his assailant after the testimony at trial failed to correspond with the prosecution’s offer of proof. The majority also states that it is not clear that Foster had personal knowledge of his attacker. I do not quarrel with these conclusions. The majority proceeds to dispose of the case on the Confrontation Clause issue, concluding, “we do not believe it necessary or advisable to determine whether Foster had personal knowledge of the identity of his attacker.”
I would remand for a determination of the factual question of Foster’s personal knowledge. If the district court finds that he did not have personal knowledge, we need not reach the constitutional issue.
If the district court on remand finds that Foster did not actually observe his attacker (or if the court is unable to make a determination), then the Rule 602 personal knowledge threshold forecloses use of his testimony. The conviction must then be reversed to permit a trial without allowing either Foster or the agent to testify as to Foster’s out-of-court identification. If the district court finds that Foster did actually observe his attacker, then the personal knowledge threshold is passed, and the evi-dentiary and constitutional issues properly may be reached for resolution. Because I also differ from the majority’s disposition of those issues, I am obliged to address them.
B. “Subject to Cross-Examination” Under Rule 801(d)(1)(C)
Rule 801(d)(1)(C) provides that a statement is not hearsay if “[t]he declarant testifies at the trial ... and is subject to cross-examination concerning the statement, and the statement is ... one of identification of a person made after perceiving him.” Fed.R.Evid. 801(d)(1)(C) (emphasis added). Again it becomes clear that a finding of Foster’s personal knowledge is critical to the proper determination of the propriety of his testimony. If it is found that Foster never perceived his attacker, then his testimony is inadmissible, and this determination needs no analysis into whether the rule requires effective cross-examination as to the basis underlying the identification.
Assuming arguendo that Foster did perceive his attacker, I cannot agree that he was not “subject to cross-examination” within the meaning of Rule 801. I have no objection to the majority’s elucidation of Rule 801(d)(1)(C) and its rationale. I believe, however, that the requirements of the rule and its rationale were met in the cross-examination which occurred in this case. I disagree with the majority’s conclusion that the extra-judicial identification may not be admitted unless the declarant is subject to cross-examination on the reasons, facts, and circumstances underlying the identification. The rule simply requires that the declarant be subject to cross-examination concerning the statement. It does not require that, cross-examination of the declarant be sufficient to satisfy either the examining party or the reviewing court as *764to the basis for the making of the identification. The Supreme Court’s recent observation concerning the role of cross-examination in fulfilling the purpose of the Confrontation Clause is apposite to the concerns of Rule 801: “Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, — U.S. -, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985) (emphasis in original). All that Rule 801 requires is the opportunity for effective cross-examination concerning the out-of-court statement. I believe Owens had that opportunity.
Foster’s testimony complied with the literal terms of the rule, for he was fully available for cross-examination as to his extra-judicial identification. He testified at trial, and was both subject to cross-examination and actually cross-examined as to the basis of his prior identification. Further, neither the policy nor the rationale underlying the rule was violated. The jury had “ample opportunity to test him as to the basis of his former statement.” Cross-examination elicited that at the time of trial he could not remember seeing his attacker, could not remember anything up to the point of his identification of Owens in the hospital, could not remember anything after that identification, but could “vividly” recall his statement of identification. Further, cross-examination revealed that at the time he made the statement, he knew why he had identified Owens, though he could no longer remember the reason. Thus, contrary to the majority’s statement that there is no question but that Foster’s memory loss was actual and complete, Foster was able to testify and be cross-examined as to what he did remember. In the face of his selective memory, I believe the jury had an adequate basis to weigh the credibility of Foster’s testimony. I also observe that whether his memory loss was actual and complete is properly a question for the jury.1
The importance of allowing the jury to weigh this type of testimony may be illustrated by the following analogy. Assume an attack and subsequent loss of memory as in this case, but instead of an incriminating extra-judicial identification, the victim looked at the photo-spread and stated “Owens was not the assailant.” Later at trial, the victim cannot remember why he made the statement, only that he remembers vividly having made the statement, and that he had a reason for doing so. Assuming further that the victim had personal knowledge, shouldn’t the statement be admitted in Owens’ defense? It seems to me to be admissible and, if so, I see no reasoned basis under Rule 801(d)(1)(C) for distinguishing incriminating out-of-court statements.
Because Rule 801 requires no more than the opportunity to cross-examine a declar-ant as to an out-of-court prior identification, and because Foster was fully subject to cross-examination within the meaning of the rule, his testimony was admissible under the rule.
C. Confrontation Clause
It is only if Foster’s testimony is determined not to be hearsay that the court properly reaches the Confrontation Clause issue. Again assuming arguendo that Foster had personal knowledge of his assailant, I disagree with the majority’s holding that Foster was not subject to cross-examination sufficient to satisfy the requirements of the Sixth Amendment.
*765As a preliminary matter, I disagree with the majority’s characterization of this case as presenting the question that was identified but left open by the Supreme Court in California v. Green, 399 U.S. 149, 168-70, 90 S.Ct. 1930, 1940-41, 26 L.Ed.2d 489 (1970), and Delaware v. Fensterer, — U.S. -, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985). That question concerns an out-of-court statement of identification made by a witness who has no memory whatsoever of either the event itself or the making of the extrajudicial identification. In Fensterer, the Court said
We need not decide today the question raised but not resolved in Green. As Green’s framing of that question [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] 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.
106 S.Ct. at 295 (emphasis added). The unresolved question would be presented only if the statement had been introduced without Foster testifying or without his having any recollection of making the out-of-court statement. Here, as I have indicated, Foster was available for cross-examination and was actually cross-examined concerning his prior statement.
The majority errs by equating the requirement of forcing the declarant to submit to cross-examination, Green, 399 U.S. at 158-59, 90 S.Ct. at 1935-36, with the question of whether it was possible for Owens to cross-examine him effectively. “ ‘The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.’ ” Fensterer, 106 S.Ct. at 294-95 (quoting Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974), quoting 5 J. Wigmore, Evidence § 1395 (3d ed. 1940)) (emphasis in original). “Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Fensterer, 106 S.Ct. at 295 (emphasis in original). Foster answered all questions put to him; he stated what he could remember and what he could not remember. He was thus subjected to cross-examination as required by Green.
The majority finds that in this case, however, the type and extent of cross-examination to which Foster could be subjected could not serve to expose several of the dangers surrounding out-of-court identification — misperception and failure of memory. To the contrary, the cross-examination directly addressed these issues. The questioning elicited that Foster could not remember seeing his assailant, nor could he remember why he identified Owens in the hospital. This was an adequate basis for counsel to argue that Foster’s selective memory is not credible, and to permit the jury to make its determination of the weight to accord his testimony.
I am unconvinced by the majority’s attempt to distinguish Fensterer. If a jury can be permitted to draw inferences regarding the reliability of an expert witness in the face of that witness’ actual loss of memory as to the basis of his opinion, why cannot a jury also draw inferences regarding Foster’s reliability in the face of his selective memory?
I also am struck by the curious result of the majority’s analysis. In a case like Green, involving a witness who professed a lack of memory which the court found to be incredible or unbelievable, the jury will be permitted to hear the former statement and exercise its function of measuring the witness’ credibility. If the court finds the memory loss believable, as in this case, then it will not permit the jury to hear the testimony. It is the jury’s function to determine whether Foster’s memory loss is actual and complete. We should not preempt the jury from exercising its role.
The Supreme Court has found Confrontation Clause violations when a court has *766denied the right to cross-examination, e.g., Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923 (1965), when a court has limited cross-examination of a principal witness on a material issue such as bias, e.g., Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), and when cross-examination has been completely thwarted by a witness’ refusal to answer any questions, e.g., Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). The Court has never found a denial of the right of confrontation when a witness responds concerning some relevant events but alleges a loss of memory as to others. In its Fensterer decision, the Court addressed an almost identical issue and found no violation. We should follow that teaching.
. The cases cited by the majority for the proposition that the court is to determine the nature and extent of the witness' memory loss are not persuasive. I would agree that there may be a threshold at which a court could conclude that a witness has not been subject to cross-examination. In the cases cited by the majority, however, the court permitted the jury to hear the testimony and exercise its function in weighing the credibility of the testimony. See, e.g., United States v. Baker, 722 F.2d 343, 348-49 (7th Cir.1983), cert. denied, 465 U.S. 1037, 104 S.Ct. 1312, 79 L.Ed.2d 709 (1984); Vogel v. Percy, 691 F.2d 843, 846 (7th Cir.1982); United States v. Rogers, 549 F.2d 490, 494-96 (8th Cir.1976), cert. denied, 431 U.S. 918, 97 S.Ct. 2182, 53 L.Ed.2d 229 (1977).