Does the failure of memory by the time of trial of the witness who made a pretrial identification render the witness unavailable for cross-examination for purposes of the hearsay exemption or exception for pretrial identifications?

In re Echostar Communications Corp., 448 F.3d 1294, 1299 (Fed. Cir. 2006) ("Once a party announces that it will rely on advice of counsel, for example, in response to an assertion of willful infringement, the attorney-client privilege is waived.").If a client invokes the advice of counsel to support a claim or a defense in a legal proceeding, the client forfeits the protection of the attorney-client privilege in that proceeding for the advice given given by counsel and the client's communications relevant to that legal advice.

McMillan v. Sheraton Chicago Hotel & Towers, 0 F.3d 0, pin? (7th Cir. 2009) ("The plaintiff must prove the 'jurisdictional facts by a preponderance of the evidence. Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir.2006). To satisfy this burden, a party must do...The burden of proof (including the burden of production and the burden of persuasion) on factual issues other than essential elements of a claim or an affirmative defense may be allocated in a variety of ways and the burden of proof can also vary.

United States v. MacCloskey, 682 F.2d 468, 478-479 (4th Cir. 1982) (reversing conviction for conspiracy to murder a DEA special agent and remanding for new trial the charge of conspiracy to obstruct the administration of....For purposes of the hearsay exceptions created by Federal Rule of Evidence 804 or a comparable State rule, a declarant is "unavailable" within the meaning of Rule 804(a) or a comparable State rule if the declarant persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; but a declarant is not "unavailable" if the declarant's refusal is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.