Child-Sex Cases: Right To Be Present During Critical Stages, Confrontation Clause Issues
In the past year, the appellate courts have addressed various issues regarding a defendant’s right to be present during critical stages of a case and Confrontation Clause issues in child-sex cases. In People v. Myles, 2020 IL App (4th) 180652, the appellate court addressed a trial court’s private reviewing of child advocacy center (CAC) video interviews that were used as evidence in the defendant’s aggravated criminal sexual abuse of a child trial. In People v. Martinez, 2021 IL App (1st) 172097, and People v. Rajner, 2021 IL App (4th) 180505, the appellate court upheld minors testifying on closed-circuit television, with one justice questioning the constitutionality of the law in light of Crawford v. Washington, 541 U.S. 36, 158 L.Ed.2d 177, 124 S.Ct. 1354 (2004).
The federal and Illinois Constitutions both “afford criminal defendants the general right to be present, not only at trial, but at all critical stages of the proceedings, from arraignment to sentencing.” People v. Lindsey, 201 Ill.2d 45, 772 N.E.2d 1268, 1275, 265 Ill.Dec. 616 (2002).
A defendant’s right to be present, however, is not considered to be a substantial constitutional right but rather a “lesser right” that is intended to secure the substantial rights of a defendant, such as the right to confront witnesses, the right to present a defense, or the right to an impartial jury. People v. Johnson, 238 Ill.2d 478, 939 N.E.2d 475, 481, 345 Ill.Dec. 632 (2010). A defendant can waive his or her right to be present by consenting to be absent for a portion of a proceeding or through his own misconduct. Lindsey, supra, 772 N.E.2d at 1276.
Whether a defendant’s absence affected the fairness of his or her trial depends on a review of the record as a whole and on the specific nature of the proceeding from which he or she was absent. People v. Lucas, 2019 IL App (1st) 160501, ¶13, 141 N.E.3d 341, 435 Ill.Dec. 831.
Trial Court Reviewing Videos Without Defendant Present
In Myles, supra, the Fourth District Appellate Court affirmed the trial court’s private viewing of child advocacy center interviews of two minor victims. The defendant argued that his right to be present at all critical stages of his trial were violated when the trial court privately viewed the CAC interviews. 2020 IL App (4th) 180652 at ¶56.
The Fourth District distinguished the First District’s opinion in Lucas, supra, in which the appellate court found that the trial court’s viewing of the defendant’s traffic stop video with the prosecutor and defense attorney was unfair to the defendant. The Lucas court held that the defendant’s absence from the viewing of the video was unfair because she had never seen the video, the video viewing was a critical stage of the proceedings, the video involved a significant portion of the evidence against her, and the trial court relied on the video in finding her guilty. The defendant was also never informed that she had a right to be present during the video evidence. 2019 IL App (1st) 160501 at ¶¶15 – 16.
The Myles court concluded that Lucas was distinguishable because in Lucas there was no indication that the defendant had seen the video. In Myles, however, the record indicated that the defendant had seen the videos. The defendant had testified that he remembered one incident with one of the victims when he saw the video. The defendant also testified that the incidents he remembered best matched the descriptions in the recordings. 2020 IL App (4th) 180652 at ¶62.
The Myles court also emphasized that both minor victims testified at trial and were cross-examined about the inconsistencies between their trial testimony and their interview responses. Id. The court also noted that the recordings were not as significant a portion of the evidence against the defendant as the video in Lucas was because the minors’ testimony at trial was sufficient to find the defendant guilty. 2020 IL App (4th) 180652 at ¶64.
The court concluded that the defendant’s presence at the video viewing would not have contributed to his defense because he did not object to the trial court reviewing the videos outside of his presence, he saw the videos himself, the minors testified at trial and were cross-examined, and the defendant was aware of all the state’s evidence when he decided to testify in his defense. 2020 IL App (4th) 180652 at ¶65.
Minor Victims Testifying on Closed-Circuit Television
725 ILCS 5/106B-5 permits a minor to testify via closed-circuit television in certain sex and domestic battery cases if, after a hearing, the trial court determines that testimony by the minor in the courtroom will result in the minor suffering serious emotional distress such that the minor cannot reasonably communicate or suffering severe emotional distress that is likely to cause the minor to suffer severe adverse side effects. The statute allows the defendant to remain in the courtroom during the testimony.
In Martinez, supra, the First District held that there was not a Confrontation Clause violation when a minor testified on closed-circuit television in a predatory criminal sexual assault of a child trial, even though the minor testified in the courtroom to a closed-circuit television in a room where the defendant watched.
Before trial, the state filed a motion to have the minor testify on closed-circuit television pursuant to 725 ILCS 5/106B-5, which allows sexual assault minor victims to testify via closed-circuit television. The motion was based on a DCFS recommendation that it would be psychologically damaging to the minor to testify against her father (the defendant) at trial. The minor’s clinical psychologist testified that it would be detrimental to the minor’s health if she was required to confront her father. The defense attorney did not object to the minor testifying on closed-circuit television as long as the defendant’s rights were protected at trial. 2021 IL App (1st) 172097 at ¶4.
Instead of having the minor testify from a room into the courtroom, the procedure was reversed. At the trial, the defendant sat in a room with a television and watched his daughter testify in the courtroom. The room had an intercom phone for the defendant to talk to his attorney. The trial court asked the defendant if the setup was satisfactory, and the defendant answered yes. 2021 IL App (1st) 172097 at ¶5.
The defendant was found guilty and argued on appeal that the trial court’s procedure was in error. The appellate court agreed that the statute was not followed because it only permits a minor to testify outside the courtroom and have his or her testimony shown in the courtroom on a closed-circuit television. However, the reverse occurred during trial. 2021 IL App (1st) 172097 at ¶43. The appellate court noted, though, that the minor “testified under oath under the watchful eyes of the parties and the fact-finder and was subject to contemporaneous cross-examination.” 2021 IL App (1st) 172097 at ¶46. The appellate court ultimately concluded that there was no evidence that the defendant’s absence from the courtroom during the minor’s testimony resulted in an unfair proceeding. Id.
In Rajner, supra, the Fourth District Appellate Court held that the defendant’s confrontation rights were not violated when a minor testified via closed-circuit television in his jury trial for predatory criminal sexual assault of a child. The state filed a motion to have the minor testify on closed-circuit television pursuant to 725 ILCS 5/106B-5. A hearing was held, and the minor’s counselor testified about the minor’s adjustment disorder and the impact it would have on her to testify in front of the defendant in the courtroom. 2021 IL App (4th) 180505 at ¶¶6 – 13.
The trial court granted the motion after a hearing with the minor’s therapist, finding that the minor would suffer serious emotional distress if she had to testify in the presence of the defendant in the courtroom. 2021 IL App (4th) 180505 at ¶14.
The minor testified on closed-circuit television, and the defendant was found guilty. 2021 IL App (4th) 180505 at ¶16. On appeal, the defendant argued that his right to confrontation was violated because there was insufficient evidence that testifying in court would prevent the minor from reasonably communicating or cause her to suffer severe emotional distress. The defendant contended that the minor’s therapist was not a doctor or a psychologist and had never testified as an expert. The defendant further contended that the therapist was never told about the abuse and gave speculative opinions. 2021 IL App (4th) 180505 at ¶22.
The appellate court disagreed, noting that no authority was cited for the contention that the therapist needed to be a doctor or a psychologist and have previously testified as an expert. The court further noted that the therapist testified about her experience in working with the minor and the minor’s avoidance of discussing the abuse during the sessions. The court found that the therapist’s opinion that the minor would become overwhelmed and unable to communicate was based on her experience with the minor and that this opinion was not diminished because the minor was able to testify about the abuse on the closed-circuit television. 2021 IL App (4th) 180505 at ¶¶26 – 27. Accordingly, the appellate court held that the defendant’s confrontation rights were not violated when the minor testified on closed-circuit television. 2021 IL App (4th) 180505 at ¶28.
However, Justice Steigmann pointed out in his concurrence that 725 ILCS 5/106B-5 may be in violation of Crawford, supra. Justice Steigmann noted that the Illinois Supreme Court previously upheld the statute in People v. Dean, 175 Ill.2d 244, 677 N.E.2d 947, 222 Ill.Dec. 413 (1997). However, Dean relied on the U.S. Supreme Court’s decision in Maryland v. Craig, 497 U.S. 836, 111 L.Ed.2d 666, 110 S.Ct. 3157 (1990) (holding that Confrontation Clause did not categorically prohibit child witness in child abuse case from testifying against defendant at trial, outside defendant’s physical presence, by one-way closed-circuit television). Justice Steigmann encouraged the Illinois Supreme Court to reexamine the statute in light of Crawford. 2021 IL App (4th) 180505 at ¶¶32 – 34 (Steigmann, J., specially concurring).
Adam Bolotin, Pissetzky Law LLC, Chicago | 312-883-9466
Matthew Chivari, J.D., Graduate of DePaul University College of Law
Illinois’ Pretrial Release Reforms, Yet To Become Effective
On February 22, 2021, Governor Pritzker signed H.B. 3653, 101st Gen.Assem. (2021), the so-called Safety, Accountability, Fairness and Equity — Today (SAFE-T) Act, into law as P.A. 101-652 (eff. July 1, 2021). The Act enacts wide-ranging reforms across multiple levels of policing and the criminal justice system. Notably, the law will require every police officer to be equipped with body cameras by January 1, 2025 (50 ILCS 706/10-15); commands the permanent retention of police misconduct records (50 ILCS 205/25); and directs the Illinois Law Enforcement Training Standards Board to adopt minimum standards for training requirements on use of force and escalation techniques (50 ILCS 705/10.17), just to name a few. The new law’s most reported reform is the abolishment of monetary bail (725 ILCS 5/110-1.5). The provision, which will not go into effect until January 1, 2023, may sound simple enough, but the elimination of cash bond required a complete reconfiguration of the pretrial release procedures.
Presumption To Release Accused
Much like criminal law’s founding principle that the accused is presumed innocent, the new pretrial release statute makes clear that it is presumed that the accused is entitled to release “on his or her own recognizance.” 725 ILCS 5/110-2. In other words, it is presumed that no conditions of bond need be imposed. Effectuating this point, subsection (e) instructs courts to liberally construe the statute and to “rely[ ] upon contempt of court proceedings or criminal sanctions instead of financial loss to assure the appearance of the defendant, and that the defendant will not pose a danger to any person or the community and that the defendant will comply with all conditions of bond.” Id.
When Pretrial Release May Be Denied
Clinging to this presumption, opponents of the new law have argued the reforms will tie the hands of bond court judges and require dangerous individuals to roam the streets just after being arrested for serious offenses. A review of the Act proves that is not the case. Notably, the Act specifically separates certain dangerous offenses and directs judges to deny pretrial release to the following alleged offenders, among others:
those accused of committing non-probationable forcible felonies when the accused’s pretrial release poses a specific real and present threat to any person or the community;
those charged with stalking or aggravated stalking who pose a real and present threat to the physical safety of the victim of the alleged offense when denial is necessary to prevent the threat on which the charge is based;
those charged with domestic battery who pose a real and present threat to the physical safety of a victim of the alleged offense;
those charged with any sex offense (other than public indecency, adultery, fornication, and bigamy) who pose a threat to the physical safety of any person; and
those facing gun and non-probationable possession of firearm offenses who pose a present threat to the physical safety of any specific identifiable person. 725 ILCS 5/110-6.1(a) (eff. Jan. 1, 2023).
If the accused falls under the above categories, the state must file a petition that states the grounds on which it contends the defendant should be denied pretrial release, including the identity of the specific person or persons to whom the state believes the defendant poses a danger. Following the filing of a petition, the court will hold a detention hearing in which the state bears the burden of proving by clear and convincing evidence that (1) the proof is evident or the presumption so great that the defendant has committed a listed offense; (2) the defendant poses a real and present threat to the safety of a specific, identifiable person or persons, by conduct that may include but is not limited to a forcible felony, the obstruction of justice, intimidation, injury, or abuse as defined by §103(1) of the Illinois Domestic Violence Act of 1986, 750 ILCS 60/101, et seq.; and (3) no condition or combination of conditions can mitigate the specific, imminent threat to a specific, identifiable person or persons or the defendant’s willful flight. 725 ILCS 5/110-6.1(e) (eff. Jan. 1, 2023).
Regarding conduct of the hearings, §110-6.1(f) provides:
Prior to the hearing the State shall tender to the defendant copies of defendant’s criminal history available, any written or recorded statements, and the substance of any oral statements made by any person, if relied upon by the State in its petition, and any police reports in the State’s Attorney’s possession at the time of the hearing that are required to be disclosed to the defense under Illinois Supreme Court rules. 725 ILCS 5/110-6.1(f)(1) (eff. Jan. 1, 2023).
Responding to the state’s arguments, the defendant may submit evidence that proof of the charged crime may have been the result of an unlawful search or seizure or both or obtained through improper interrogation. Though the defendant may not move to suppress evidence from being referenced at the detention hearing, possible suppression of evidence is relevant in assessing the weight of the evidence against the defendant. 725 ILCS 5/110-6.1(f)(6) (eff. Jan. 1, 2023).
Even if an accused is not facing the listed charges, a court may still detain an individual when it is determined that the defendant poses a “specific, real and presentthreat” to a person or has a high likelihood of willful flight. 725 ILCS 5/110-2(c), 5/110-4 (both eff. Jan. 1, 2023). The “specific, real and present threat” language amends the prior standard that required a more general finding that the defendant posed a danger to any unidentified person or the community at large.
If the court decides to detain the accused following the hearing, the pretrial release judge must make a written finding as to why less restrictive conditions would not assure safety to the community and assure the accused’s appearance in court. 725 ILCS 5/110-2(d) (eff. Jan. 1, 2023).
The law further requires that the judge assigned to handle the substantive case must find that continued detention or the current set of conditions imposed are still necessary to avoid the risk of danger to specific, identifiable persons or of willful flight from prosecution to continue detention of the accused. Unlike the old statute, the defendant need not present the court with new information or a change in circumstance to hear a motion to reconsider pretrial detention. Id.
Determining the Conditions of Release
The law makes only a single change to the mandatory conditions of release. Going forward, courts may, but are not required to, order the accused to remain in the state without leave of court. 725 ILCS 5/110-10(a), 5/110-10(b) (eff. Jan. 1, 2023). The Act does amend the seemingly never-ending list of factors courts should weigh when assessing what conditions to impose that will reasonably assure the appearance of a defendant as required or the safety of any other person or the community and the likelihood of compliance by the defendant with all the conditions of pretrial release. Streamlining the factors, the new law directs courts to consider
(1) the nature and circumstances of the offense charged;
(2) the weight of the evidence against the eligible defendant, except that the court may consider the admissibility of any evidence sought to be excluded;
(3) the history and characteristics of the eligible defendant, including:
(A) the eligible defendant’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past relating to drug or alcohol abuse, conduct, history criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the eligible defendant was on probation, parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any other state;
(4) the nature and seriousness of the specific, real and present threat to any person that would be posed by the eligible defendant’s release, if applicable; as required under paragraph (7.5) of Section 4 of the Rights of Crime Victims and Witnesses Act [725 ILCS 120/1, et seq.]; and
(5) the nature and seriousness of the risk of obstructing or attempting to obstruct the criminal justice process that would be posed by the eligible defendant’s release, if applicable. 725 ILCS 5/110-5(a) (eff. Jan. 1, 2023).
The Act outlines additional factors for courts to consider when the defendant is charged with committing domestic-related offenses. 725 ILCS 5/110-5(b), 5/110-5(c) (eff. Jan. 1, 2023).
Amendments to Electronic Monitoring, GPS Monitoring, and Home Confinement
Finally, the Act amends when courts can impose electronic monitoring, GPS monitoring, and home confinement as conditions of pretrial release. Such conditions may now be imposed only when no less restrictive condition of release or combination of less restrictive conditions of release would reasonably ensure the appearance of the defendant for later hearings or protect an identifiable person or persons from imminent threat of serious physical harm. 725 ILCS 5/110-5(g) (eff. Jan. 1, 2023). The law further requires courts to set forth the basis underlying such a finding. If electronic monitoring, GPS monitoring, or home confinement is imposed, the court shall determine every 60 days if no less restrictive condition of release or combination of less restrictive conditions of release would reasonably ensure the appearance, or continued appearance, of the defendant for later hearings or protect an identifiable person or persons from imminent threat of serious physical harm. If the court finds that there are less restrictive conditions of release, the court shall order that the condition be removed. 725 ILCS 5/110-5(i) (eff. Jan. 1, 2023).
Additionally, the law now extends custodial credit for each day the accused was subjected to not just sheriff’s electronic monitoring but also GPS monitoring and home confinement at the same rate described in §5-4.5-100(b) of the Unified Code of Corrections, 730 ILCS 5/1-1-1, et seq. 725 ILCS 5/110-5(h) (eff. Jan. 1, 2023).
For more information about criminal law, see FEDERAL CRIMINAL PRACTICE (IICLE®, 2019). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.