Login | December 18, 2018

Law Bulletin Column: Cross examination and the confrontation clause

Law Bulletin columnist

Published: November 14, 2017

Much has been written about the appellate court’s holding in People v. Learn, 396 Ill. App. 3d 891 (2009); almost all of it has either distinguished Learn or disavowed Learn altogether.

Recall that in Learn the appellate court concluded that the use of Section 115-10 of the Code of Criminal Procedure (725 ILCS 5/115-10) — which allows certain out-of-court statements by a victim to be admitted at trial — ran afoul of the confrontation clause.

The most recent case to “respectfully disagree” with the holding in Learn is People v. Dabney, 2017 IL App (3d) 140915.

In Dabney, the defendant, Hiram Dabney, who was 17 years of age or older at the time of the aggravated criminal sexual abuse, argued that the victim, who was 13 years of age or younger at the time, did not “appear” for cross-examination on two of the four charges against the defendant.

Specifically, Dabney claimed that although the victim appeared at trial, took the stand and answered questions, she was unavailable for cross-examination because she did not testify about two specific incidents of improper touching, which had been specifically charged.

Writing for the appellate court, Justice Robert L. Carter rejected the defendant’s argument. The state, according to the court, had, in fact, presented evidence of the additional two incidents of improper touching through the video-taped interview that had been admitted under Section 115-10. As that evidence was admitted — even though it was admitted after the victim testified by videotape — it was the defendant’s burden to cross-examine the victim about those allegations.

According the appellate court, “The confrontation clause guarantees an opportunity for effective cross-examination; it does not guarantee cross-examination that is effective in whatever way the examining party may want.”

As such, lack of memory or a defense attorney’s fear of cross-examination do not implicate the confrontation clause.

In Dabney, the victim took the witness stand and was available to answer questions on cross-examination. Indeed, the victim answered all the questions defense counsel presented.

Carter concluded the opinion as follows: “Although defense counsel in this case was faced with a difficult strategic choice to make as to whether to specifically ask [the victim] in cross-examination about the other acts of sexual conduct that had been charged, those strategic considerations do not make [the victim] unavailable for cross-examination for the purpose of the confrontation clause.”

Justice Daniel L. Schmidt specially concurred in Dabney to “point out another fact that seem[ed] extremely relevant to the confrontation issue.” Schmidt noted that although the videotape in question was shown after the victim left the witness stand, defense counsel had been provided the video in advance of trial and knew that the [s]tate would be offering it into evidence.

In short, the state presented its evidence through the victim in person and via videotape under Section 115-10.

It was up to the defendant, through counsel, to exercise the right to confront her about that evidence when he had the opportunity.

The fact that he did not do so did not render his trial unfair, constitutionally speaking.

David J. Robinson is a lawyer, adjunct professor, author and 4th District deputy director at the state’s attorneys appellate prosecutor.