Kane County Nuggets

People v. Biagi, 2017 IL App (5th) 150244 (January). Episode 297 (Duration 8:23)

Trial court errored in granting this petition to rescind the statutory summary suspension in this drug based DUI arrest.

Defendant is driving really slow when he pulls over and stops. There is, of course, a State trooper following him. 

The trooper pulls in behind him because he thinks defendant has car trouble.

- Right away the trooper notices the defendant really can’t follow instructions is acting kinda spacy.
- His speech was slow.
- He said “good afternoon” when it was just after midnight.
- He was slumped down in his seat.
- His movements were deliberate and delayed, and...
- his pants are also undone and falling down to his thighs.

He fails the FST’s including the HGN.

The trooper is trained in detecting drugged driving.

After he is arrested, police find some pills in his pocket.

There is no odor of alcohol and defendant denied taking any narcotics or prescription pills.

Here, the circuit court found that the trooper activated his “take down” lights, being white lights to illuminate the area, and exited his vehicle. These actions would be seen by a defendant as a command to stay put.

Therefore, defendant was detained by the trooper.

The appellate court said otherwise. In People v. Luedemann, the Illinois Supreme Court held that shining a light on a vehicle is not a seizure where there is no coercion or a threat of coercion present.

Accordingly, this trooper’s use of the flashlight and takedown lights did not constitute a seizure of the defendant without the presence of some form of coercion.

In determining whether coercion is present–thereby resulting in a seizure–courts examine the following factors, which were established by the United States Supreme Court in United States v. Mendenhall, 446 U.S. 544, 554 (1980):

"(1) the threatening presence of several officers;
(2) the display of a weapon by an officer;
(3) some physical touching of the person of the citizen; and
(4) the use of language or tone of voice indicating that compliance with the officer's request might be compelled."

The Mendenhall factors "are not exhaustive and *** a seizure can be found on the basis of other coercive police behavior that is similar.

A review of the video in the record reveals...

• no other officers present
• no display of a weapon
• no physical touching of the defendant's person, and
• no language or tone of voice to indicate that compliance was compelled.

Regarding the Mendenhall factors, there must be some such evidence; otherwise, any inoffensive contact between a citizen and a police officer cannot, as a matter of law, constitute a seizure of the citizen.

There was no coercive behavior by the trooper, nor any threat thereof, nor was there any physical force or show of authority to restrain the defendant's liberty.

For these reasons, we find the encounter between the defendant and the trooper prior to the observation of signs that the defendant was under the influence–was consensual and not a seizure, thereby rendering inapplicable any fourth amendment implications.

As a result, the circuit court erred by finding that a seizure had occurred.

Additionally, this encounter legitimately began as a community caretaking function.

The United States Supreme Court established that local law enforcement officers 'frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

Most people who appear to be in distress would welcome a genuine offer of police assistance.

But permitting police to search or seize whenever they might be pursuing community-caretaking goals risks undermining constitutional protections.

The challenge of the community-caretaking doctrine is to permit helpful police to fulfill their function of assisting the public, while ensuring that searches for law enforcement purposes satisfy the requirements of the Fourth Amendment.

There are two general criteria a court must find in determining whether the community caretaker exception applies.

First, law enforcement officers must be performing some function other than the investigation of a crime. In making this determination, a court views the officer's actions objectively.

Second, the search or seizure must be reasonable because it was undertaken to protect the safety of the general public.

The court must balance a citizen's interest in going about his business free from police interference against the public's interest in having police officers perform services in addition to strictly law enforcement.

Community caretaking tasks include but are not limited to

• helping children find their parents
• mediating noise disputes
• responding to calls about missing persons or sick neighbors
• helping inebriates find their way home
• or approaching a vehicle that is pulled over on the side of the road to offer assistance.

The public has a substantial interest in ensuring that police offer assistance to motorists who may be stranded on the side of a highway, especially after dark and in areas where assistance may not be close at hand.

Moreover, an officer has the right to make a reasonable investigation of vehicles parked along roadways to offer such assistance as might be needed and to inquire into the physical condition of persons in vehicles because the occupant of a parked vehicle may be intoxicated, suffering from sudden illness, or may be only asleep.

The court held that, under such circumstances, it is within a responsible law enforcement officer's authority to determine whether assistance is needed.

Therefore, any alleged seizure was reasonable under the community caretaking doctrine and resulted in no fourth amendment violation.

In applying the actual established law to the fact of this case, first, the evidence shows that the trooper was performing a function other than the investigation of a crime.

Defendant was traveling over 20 miles per hour under the speed limit.

The defendant parked on the shoulder of a rural road in the middle of the night.

The road was poorly lit and sparsely populated. These facts could prompt any reasonable police officer to have genuine concern for the welfare of the defendant. There was also a public safety concern. Because defendant stopped in a place that could have caused an accident. He stopped at the top of a hill making it difficult to see around him.

The facts in the record fall under the community caretaking exception to the fourth amendment, thereby making any alleged seizure of the defendant reasonable.

Trial court’s decision to grant the petition to rescind the SSS and the motion to suppress were reversed.

One of my biggest fears as a criminal law attorney is knowing my representation failed to prevent a wrongful conviction. Episode 296 (Duration 16:21)

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The Bluhm Legal Clinic Center on Wrongful Convictions from the Northwestern Pritzker School of Law is conducting its Spring 2017  Symposium on Friday, March 10, 2017. 

This program, entitled "Hot Topics in Criminal Justice: What You Need To Know",  is Free and provides approved CLE for Illinois attorneys. 

Any attorney who emails me at [email protected] and lets me know that you've registered for this Symposium will receive an additional 1.75 hours of pre-approved CLE credit.

Just let me know that you've registered for the Symposium and I'll send you your bonus ethics CLE mp3 file.

For a limited time after you register, I’ll offer you my “Better Call Saul” Ethics Hour course for FREE. This course takes a fun and relaxed approach as it examines the wacky scenarios the fictional character Saul Goodman finds himself in.

This is FREE CLE for Illinois Attorneys.

Register Now

Register Now (March 10).

✓ The Cook County Public Defender AND The Cook County State's Attorney will participate in the same discussion panel discussing implicit racial bias and decision making in the criminal justice. Tell me you don't want to be in the room when that goes down?

✓ Dana Holland is a real life, wrongfully convicted exoneree. He'll be in another panel discussion with the appellate prosecutor who litigated the appeal of the landmark decision People v. Lerma. This was the case that finally recognized eyewitness identification expert witnesses as litigate and appropriate evidence in certain cases. 

✓ There's something here for everyone. Firearm and toolmark identification expert believes this area of forensic science is not completely lost. He thinks it has a place in a courtroom. You just have to know exactly where that place is at. 

✓ Be there when a real life big city homicide detective confesses to eliciting at least one false confession in his career. No cover up, denial or blaming the defendant ensued. Instead he dug deep to figure out why heck it happened. He'll share his findings with you...if you are there.

✓ Come on dude, clear your calendar take the day off and come hang out with me. It's FREE. We'll be hanging out at the Northwestern School of Law in Chicago, and be learning from A-list presenters. I'll let you take me out to lunch. I just figured, you know...since the symposium is free.

Register Now

(remember to email me for your FREE bonus CLE)

People v. Day, 2016 IL App (3d) 150852 (January). Episode 294 (Duration 10:56)

Statutory summary suspension is rescinded after improper SFSTs fail to establish probable cause for DUI arrest.

The officer in this DUI arrest administered the field sobriety tests in an improper fashion by requesting the defendant perform them on a wet surface while it was raining.

This improper administration alone significantly impairs the probative weight that can be given to those tests.

Even further, despite the weather conditions, the defendant’s performance on the tests was reasonable, standing on one foot for 30 seconds without using his arms for balance and walking a straight line for 18 steps without stepping off the line.

Those results would not lead a reasonably cautious person to believe that the defendant was impaired by alcohol.

The ultimate question is whether the arrest was supported by probable cause. 

This cases addresses head on exactly what weight should be given to SFSTs when the NHTSA standards are not exactly followed.

Probable cause to arrest exists when the facts known to the officer at the time of the arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime. Such a determination must be based upon the totality of the circumstances.

Probable cause must rise to a level higher than mere suspicion.

It must also rise to a level higher than “reasonable, articulable suspicion,” the lesser standard required to justify an investigatory stop, rather than a full arrest.

The State lists a number of factors that, it argues, would reasonably have led the officer to believe that the defendant was driving while under the influence of alcohol.

Specifically, the State relies heavily on the fact that the defendant “failed to perform both field sobriety tests as instructed.”

The State also points out that the defendant admitted to drinking, “had the strong odor of alcohol on his breath,” had bloodshot eyes, and slurred his speech.

Upon closer examination, however, the State’s purported laundry list of factors breaks down.

Here the officer testified—explicitly and repeatedly—that he did not administer those tests (one-leg stand and walk-and-turn) properly.

He admitted that it was improper to administer those tests on wet pavement and improper to administer them while it was raining.

He admitted that the field sobriety tests should not be administered in even a drizzle.

He even agreed that the improper administration of those tests rendered them “invalid.”

Notably, the officer initially could not remember the weather on the night in question.

After checking his report, however, the officer agreed that it was raining. Still later, the officer apparently had an independent recollection that it was only drizzling.

The defendant testified that the roadway was wet and slick.

While the officer testified that the defendant briefly lost his balance in walking from his vehicle, the defendant denied this accusation.

The trial court was within its right to settle credibility issues in favor of the defendant.

Clearly, the court gave little weight to the officer’s testimony that defendant as slurring his speech.

The improper administration of the field sobriety tests in this case rendered the “results” of those tests inherently less reliable, and the trial court rightly gave the officer's observations of those tests less evidentiary weight.

The evidence here affirmatively showed that those tests were not administered correctly.

In terms of a probable cause determination: a reasonably cautious person would give very little, if any, weight to the test results that the person knew to be invalid.

What little probative value the “invalid” and improper testing might have is further eroded when we look to that actual substance underlying the officer's descriptions.

While the officer and the State broadly described the defendant as having “failed” the tests, the trial court—and this court, in applying de novo review—must look to the actual observations that led to his conclusions.

Such an analysis shows that the defendant’s “failures” on the field sobriety tests in question were technical in nature and few in amount.

Regarding the one-leg stand test, the officer testified that the defendant dropped his foot once while counting to 30 and “swayed” but did not move his arms.

On the walk-and-turn test, the officer testified that the defendant did not place his heel directly to his toe, did not count his steps out loud, and made a “large turn” instead of a small turn.

Indeed, we find that none of the purported “clues” on those tests could indicate to a reasonable person that the defendant was impaired by alcohol.

The defendant stood on one foot for 30 seconds in the cold and rain, without using his arms to keep his balance, and only put his foot down once.

What the officer described as a failure, others might describe as an impressive achievement.

On the walk-and-turn test, the defendant exhibited no signs of physical impairment, such as the loss of balance or coordination. He remained on the line for each of the required 18 steps, and never used his arms for balance.

Each of his apparent shortcomings dealt only with the officer’s directions, and two of those—the placement of his feet and his “large turn”—could have related to the wet and slick conditions in which the defendant was performing the test, the very conditions that the officer testified rendered the tests invalid.

In the present case, any suspicions of impairment that may have been raised by the defendant’s admitted consumption of alcohol and bloodshot and glassy eyes were not corroborated in any significant way by any other factors.

By all accounts, the defendant’s driving on the night in question had been nothing short of perfect.

He had not been involved in any sort of accident.

He was able to communicate clearly and effectively with the officer.

The field sobriety tests, improperly administered on a wet, slick surface while it was raining, gave no indication that the defendant was suffering from any sort of physical impairment.

The trial court was affirmed.

The fact that the defendant consumed alcohol and had glassy and bloodshot eyes is certainly probative of impairment. To a lesser extent, so too is the defendant’s failure to perfectly follow test instructions.

The reviewing court agreed with the trial court, however, that those factors are not enough to lead a reasonably cautious person to believe that the defendant had committed the crime of DUI. That is, any suspicions aroused by bloodshot and glassy eyes, unless confirmed by some other factor—such as poor driving, stumbling, falling, or an inability to communicate clearly—do not rise to the level of probable cause.

All evidence gathered past that point is suppressed.

Here's what litigators need to know about developments in legal research. Episode 290 (Duration 34:28)

What would you build if you discovered your neighbor was a genius physicist?

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Well, Ed Walters decided to revolutionize legal research. In this episode, Ed Walters, co-founder and chief executive officer of fastcase, stops by the Criminal Nuggets to tell his story.

...and the topic of legal research may have also come up.

How do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret Now

Show Me The Secret Mast.

Legal research software has come a long way. 

Fastcase is currently in the process of rolling out its latest version, fastcase 7. No matter how frequently or infrequently you "hit the books" and dive into a legal research project, fastcase 7 promises to make the experience as painless as possible. 

 In 1999, Ed Walters was telling his neighbor about how a big corporate client was complaining about the legal research fees his firm and other law offices were racking up.

Ed's neighbor just so happened to be a brilliant physicist who taught physics with Stephen Hawking at Caltech. So when the neighbor asked him what he wanted to do about it,

...things got real.

Many work nights and weekends later, fastcase was born. What Ed and his neighbor, Phil Rosenthal, did was revolutionize legal research. To see how they did it, listen to this 34 minute podcast.

Fastcase 7 has been designed to democratize legal research. Ed Walters also said one of the goals was to "make legal research less stupid." One of the ways they met their goals was by taking advantage of the horizontal, high aspect ratio and high definition features of modern computing screens.

Give it a test run and see for yourself. Have they managed to...

(1) Make modern legal research easily accessible 
(2) While balancing simplicity of use with robust and powerful features?

If your mission is to find what you need fast and easy then you'll want to listen to this interview.  

• About Ed Walters
• fastcase
• fastcase.com/education
• LawSitesBlog | Exclusive First Look: All New Version of Fastcase Out Today in Beta | by Robert Ambrogi
• LawSitesBlog | Fastcase Begins Broad Rollout Of Its All-New Fastcase 7 Platform | by Robert Ambrogi
• DeweyBStretgic | Meet Fastcase 7: The (not so) Little (search) Engine That Could and Did! | by  Jean P. O'Grady
• Legal Rebels | For Fastcase founders, the message is: Change, and do it faster! (podcast) | by Stephanie F. Ward
• Internet for Lawyers | Fastcase 7: Better Than a Tesla | by Carole Levitt
• [DOWNLOAD] the fastcase app for iPhone
• [DOWNLOAD] the fastcase app for Android

✓ From Ed's own lips: the story of how in 1999 even big corporate clients with deep pockets were crying about expensive legal research fees, and what they wanted Ed to do about it. This is about the time Ed discovered his next door neighbor was a Caltech physicist. - Go to 1:19 

✓ Beautiful and gorgeous, fast and accessible...I almost forgot we were talking about legal software.

✓ Modern software has to be beautiful - even gorgeous - to the user, it has to have enough functionality to be worth it's while, yet remain simple to use and accessible. Yet true democratization only happens when the price point becomes reasonable. The legacy legal research companies could not square this circle. - Go to 4:02 to see how fastcase did it.

✓ And get this: fastcase didn't just pick one state or one jurisdiction in 1999, to figure things out, they went big right from the get-go across all 50 states and jurisdictions. Listen in to discover how they made it work. - Go to 5:38

✓ The paradox of legal research is that the data bases draw from free public domain sources. Why the hell was it so expensive then? - Go to 6:01

✓ Do you know the difference between an editorial research structure versus an arithmetic strategy? Ed & Phil sure did. - Go to 6:09

✓ fastcase has become one of the biggest law libraries in the world. It has one of the largest subscriptions services in the United States. There you can read every single law review article ever written in America. If you are any kind of legal researcher, I think you'll find what you need there. - Go to 7:10

✓ In 1994, Yahoo was indexing the web by hand. Google came along and did it better and faster with machine learning. - Go to 7:58

✓ Legacy legal research firms still depend on people to fulfill important aspects of their service. The fastcase system relies on software, machine learning, and results of prior searches. - Go to 9:15

✓ 2/3 of every lawyer in the United States has access to fastcase. Are you taking advantage of it? Here's how to make the most of it. - Go to 10:36

✓ [DOWNLOAD] the fastcase app. It's FREE!! Never get blindsided by an opponent's case in court. With the app you can instantly see the thing without leaving the courtroom. Sync the app to your desktop account and you'll unlock even more powerful features. - Go to 10:50

✓ The "quantum interface" technology that allows fastcase to live up to its name by actually making it blazing fast. - Go to 13:01

✓ The nuts & bolts of using fastcase: How to quickly find what you need and filter out the noise by using "libraries."  - Go to 15:19

✓ REVEALED: The valuable information contained in the "interactive timeline." There are shaded circles plotted over time at the bottom of a search. (Hint: There's valuable information in there that may reveal exactly what you're looking for.) - Go to 17:12

✓ Sometimes your legal research can be lead astray when you spend hours in the woods in a fruitless search simply because you use one wrong word. Use the "tag cloud" to find the right words. - Go to 18:05

✓ Your first search often reports every relevant case your looking for, right? You know it doesn't work like that. Learn how fastcase "forecite" can save your butt. - Go to 20:35

✓ "If you can search Google, you can search fastcase." - Go to 22:19

✓ Why you won't see a "terms and connectors" or a boolean search in fastcase 7. (Note: Feel free to use a natural language or boolean search. Both will work.) - Go to 22:57

✓ The best way to move cheese. - Go to 23:44

✓ The easiest way to save time is to search multiple data sets or libraries simultaneously. Some legal research firms haven't figured this out yet. This feature is 100% supported on fastcase 7. - Go to 26:29

✓ How accessibility, democratization, and affordability of the law all mean the same thing. - Go to 29:29

Access to the law is crucial to zealous and effective advocacy. And I'm extremely confident most Illinois criminal law attorneys have access to fastcase 7 through their membership of a bar association.

Digging in and truly mastering one area of the law is another thing.

If you're interested in taking the first step towards mastering your Illinois criminal courtroom then hit the link below.

How do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret Now

Show Me The Secret.

People v. Flournoy, 2016 IL App (1st) 142356 (November). Episode 259 (Duration 11:44)

Abuse of discretion to apply the surveillance location privilege in this case.

An officer testified that he observed defendant commit an open air hand to hand drug transaction. The officer was about 20 feet from defendant, it was daylight, nothing obstructed his view, and he had a clear line of sight.

Then he could see defendant in an alley with 2 women who gave him money for drugs.

Defendant was arrested and found to be in possession of 8 smaller ziplock bags of with heroin.

Interestingly, no money is found on defendant.

Defendant asked for the exact location but the judge refused to tell him claiming he found that the State had made a preliminary showing that disclosure of the surveillance location would harm the public interest and should remain privileged.

On cross-examination, the officer confirmed that his surveillance location was within 20 feet of the vacant lot, to the north, and stated that he was in an elevated position, “approximately” two stories from the ground. 

On appeal, defendant contends that this court should reverse his conviction and remand for a new trial because the trial court improperly denied his request for disclosure of the surveillance location. 

Illinois courts have recognized a qualified privilege regarding the disclosure of secret surveillance locations. See People v. Britton, 2012 IL App (1st) 102322, ¶ 26.

This privilege was first recognized in People v. Criss, 294 Ill. App. 3d 276 (1998), in which the Fourth District held that in certain circumstances, surveillance officers are not required to disclose their exact surveillance locations on cross-examination.

The court relied on the rationale behind the privilege protecting law enforcement informants, and held that “the State may refuse to disclose the identity of law enforcement informants, so long as the nondisclosure will not deny an accused his constitutional rights.”

The supreme court has never confronted this issue.

It is well established by Criss and its progeny that whether disclosure is required is determined on a case-by-case basis.

A trial court must balance the public interest in keeping the location secret against the defendant’s interest in preparing a defense. The more important a State’s witness is to the State’s case, the more important the defendant’s right to cross-examination concerning the surveillance location becomes.

Where the State’s case depends almost exclusively on one police officer’s testimony, disclosure must “almost always” be required.

In contrast, where there is no question about the surveillance officer’s ability to observe, or where evidence appears on a contemporaneous video recording, disclosure would not be required.

The State bears the initial burden of proof in demonstrating that the surveillance privilege should apply in a given case. See People v. Price, 404 Ill. App. 3d 324, 331 (2010).

The State carries this burden of proof by presenting evidence to the trial court that the surveillance location was either

(1) on private property with the permission of the owner, or
(2) in a location that is useful and whose utility would be compromised by disclosure.

In order to evaluate whether the privilege applies, the trial court should hold an in camera hearing, outside the presence of the defendant and defense counsel, in which the State’s witness must reveal the surveillance location and make a preliminary showing that disclosure of the location would harm the public interest.

The trial court should then weigh the defendant’s need for the surveillance location against the public’s interest in nondisclosure.

The factors the court should consider regarding the public interest in nondisclosure are the crime charged, the possible defenses, and the potential significance of the privileged information.

If the State carries its burden at the in camera hearing, the burden of persuasion shifts to the defendant to overcome the privilege.

“A trial court has more discretion in declining to order the disclosure of an informant’s identity during a preliminary hearing than it does at trial.”

In the context of a pretrial hearing, the defendant must make a strong showing that the disclosure of the location is material or necessary to his defense and that his need for the information outweighs the public’s interest in keeping the location secret in order to compel disclosure.

However, where the State seeks to invoke the privilege in the trial context, due process requires that at trial the defendant need only show that the location is “relevant and helpful to the defense of an accused, or is essential to the fair determination of a cause” in order to overcome the privilege.

Even assuming the trial court was correct that the State met its initial burden at the in camera hearing in this case, the trial court did not proceed from that point to determine whether defendant had overcome the privilege.

Although a trial court enjoys broad discretion to limit the scope of cross-examination, failing to conduct any balancing inquiry constitutes an abuse of that discretion.

Even where the State properly claims privilege, the trial court must still determine whether the defense has overcome the State’s claim.

Here, disclosure was warranted here because the officer's testimony concerning what he saw from his surveillance location was the linchpin of the State’s case.

The State did not present any additional occurrence witnesses, inculpatory statements, or contemporaneous video recordings.

Moreover, although the officer reported that he saw defendant receive paper currency from three separate buyers and represented that he never lost sight of defendant, no money was recovered from defendant.

This circumstance seriously calls into question the officer's ability to observe, and in turn, his account of events.

Where a case turns almost exclusively on an officer’s testimony, a defendant’s need for location information is great and disclosure must almost always be ordered.

This is just such a case.

Additionally, our case law is consistent that when the surveillance location privilege is invoked, the State bears the initial burden of proof that the privilege should be applied. The State carries its burden of proof by disclosing the surveillance location in camera and presenting evidence that the surveillance location was either on private property with the permission of the owner or in a useful location that would be compromised by disclosure.

We hold that where, as here, the State requests the invocation of the surveillance location privilege, the trial court should not only hold an in camera hearing, but should also ensure that a transcript of that hearing is created, and preserved for appellate review. Ensuring that the in camera hearing is transcribed should be, at most, a minor inconvenience for the trial court, since criminal proceedings are routinely transcribed.

This month featured two fundamental principles that rang through loud and clear.

It's an open question if December 2016 marks the beginning of a new paradigm in Illinois sentencing...or will the Illinois Supreme Court knock down this "experiment" in sentencing by the appellate courts.

Plus, we relearned a hard lesson about widespread police misconduct.

Why read the cases when you can listen?

This is where you quickly and efficiently get up to speed with the cases.

Don't forget to download your copy of the case list to peruse when you feel good and ready...or you can listen to the cases by pushing "play" and subscribing now.

Click below to save your PDF copy now.

Give yourself a head start and stay current with the cases. Who has time to read all the cases? Download this clickable quick summary and get up to speed in no time. 

Here's a quick snapshot of what's included in the podcast and the December case list:

1. People v. Harris

This 18 year old gets a new sentencing hearing because he had a 76 year de facto life sentence  

2. People v. Horta

This 18 year old does not get a new sentencing hearing even though he had a 59 year de facto sentence.  Hmmm? 

3. People v. Busse

How do you steal quarters out of a vending machine without breaking the machine? Why this is the case to have in your back pocket for every single nonviolent sentencing hearing you have to do.

4. People v. Smith

How do you measure 21 years of age when it comes to mandatory X sentencing?

5. People v. Gonzalez

Notorious corrupt detective handled this defendant's witness identification. The witness changed her tune after the detective was done with her...but defendant is entitled to no appellate relief.

6. People v. Hauad

This murder defendant likely did not commit the murder....appellate relief denied! 

7. People v. McDonald

Why you shouldn't overlook the standard of review for lesser includes. It 100%  effects what you should argue to get your lesser included admitted. 

8. People v. Evans

This step-grand mother was treated badly by the trial judge. Now he get's to retry the case. 

9. People v. Fernandez

Sometimes your ID and passport don't prove a freak-en thing. See how this defendant's identification discovered in "his" bedroom failed to establish it was "his" bedroom.

10. People v. Burnett

Never jump on the floorboard of your van when it's being stolen. Even if the defendant is not suffering from hallucinations, disorganized thinking, and drug addiction; it can't turn out good for you.

11. People v. Wiggins

How does Texas's lack gun laws effect a Texans liability for gun possession in Illinois?

12. People v. Gutierrez

This defendant went to bed with the wrong girl. Soon thereafter the police where in the bedroom and he was in handcuffs. See how this cases touches on almost everything we ever talk about on the podcast.

13. People v. Cielak

Let's nitpick the observation period, just for the reviewing court to tell us "substantial" compliance means we haven't proven a thing.

14. People v. Kavanaugh

There's no reward for acing the field sobriety tests.

15. People v. Parker

This defendant actually asked her, "Do you think I'm going to rape you." You replied, "Yes!". How do you think this affected the consent issue?

16. People v. Vara

A peek behind the relatively new anti-"grooming" statute.

17. People v. Applewhite

What happens when 115-10 statements collide with Rule 613(c)?

18. People v. Staple

The rule against double jeopardy is intended to be a shield and not a sword. At the trial level, defendant quite effectively destroyed the State in this fencing match.  

The hard work has already been done for you. To get your hands on the December 2016 Illinois criminal case list just click the orange button below.

Give yourself a head start and stay current with the cases. Who has time to read all the cases? Download this clickable quick summary and get up to speed in no time. 

People v. Smith, 2016 IL 119659 (December). Episode 288 (Duration 8:06) 

Defendant is eligible for mandatory x sentencing because he turned 21 by the time the court found him guilty even though he was under 21 at the time he was charged.

People v. McDonald, 2016 IL 118882 (December). Episode 287 (Duration 4:45)

What's the appropriate standard a reviewing court should follow when deciding whether there was error in not giving a lesser included instruction: Abuse of discretion or de novo review?

People v. Burnett, 2016 IL App (1st) 141033 (December). Episode 286 (Duration 7:59)

Trial judge denies an insanity defense to a defendant with recognized schizophrenia, psychotic disorder, suffering from hallucinations, “disorganized thinking,” drug addiction, and an IQ of 72, placing him within a “borderline range of cognitive functioning.”

People v. Applewhite, 2016 IL App (4th) 140558 (December). Episode 285 (Duration 5:49)

115-10 statements trumps Rule 613(c) which prohibits prior consistent statements. 

This was a sexual abuse of a 10 year old girl case.

The trial court found that the “time, content, and circumstances of the statements, the testimony of the witnesses, the credibility of [G.Z.], who has testified here by way of video, all [the court] believe[s] are sufficient to allow the admissibility of the [section] 115-10 statements.”

Defendant’s main argument is that the child was too consistent.

Defendant contends that the admitted hearsay testimony provided by 4 other witnesses was unnecessarily cumulative and prejudicial.

Illinois Rule of Evidence 613(c) (eff. Jan. 1, 2011), which governs prior consistent statements of a witness, provides, as follows:

“(c) Evidence of Prior Consistent Statement of Witness. A prior statement that is consistent with the declarant-witness’s testimony is admissible, for rehabilitation purposes only and not substantively as a hearsay exception or exclusion, when the declarant testifies at the trial or hearing and is available to the opposing party for examination concerning the statement, and the statement is offered to rebut an express or implied charge that: (i) the witness acted from an improper influence or motive to testify falsely, if that influence or motive did not exist when the statement was made; or (ii) the witness’s testimony was recently fabricated, if the statement was made before the alleged fabrication occurred.”

In general, proof of a prior consistent statement made by a witness is inadmissible hearsay, which may not be used to bolster a witness’s testimony.

The danger in prior consistent statements is that a jury is likely to attach disproportionate significance to them.

People tend to believe that which is repeated most often, regardless of its intrinsic merit, and repetition lends credibility to testimony that it might not otherwise deserve.

In this case, the trial court admitted the contested statements at issue pursuant to section 115-10 of the Code.

Section 115-10 was originally passed in response to the difficulty in convicting persons accused of sexually assaulting young children. This difficulty occurs because children’s testimony in sexual assault cases is often inadequate. Problems in proof may result when the lesser developed cognitive and language skills that children have hinder them in adequately communicating the details of an assault.

The legislature sought to create a hearsay exception to allow into evidence corroborative testimony that the child complained to another person about the incident.

It appears that the legislature, in providing for the admission of evidence of outcry statements as exceptions to the hearsay rule in certain cases, was concerned with the ability of the victim to understand and articulate what happened during the incident and the reluctance many victims have relating the details of the incident at trial.

Evidence of an outcry statement made to another by a child under the age of 13 would corroborate the testimony of a child who, by reason of age, may be reluctant or unable to clearly express the details of the incident.

*** The importance of allowing hearsay testimony of an outcry *** is not dictated by the age of the victim when the assault occurs. Instead, it is dictated by the victim’s ability to adequately testify to the alleged incident.

The General Assembly enacted section 115-10 of the Code to allow admission of detailed corroborative evidence of the child’s complaint about the incident to another individual” out of concern that “child witnesses, especially the very young, often lack the cognitive or language skills to effectively communicate instances of abuse at trial.

Defendant’s argument must fail.

Defendant’s contention that the admitted section 115-10 hearsay testimony at issue violated the prohibition against utilizing prior consistent statements as substantive evidence is unavailing because by its very nature, section 115-10 of the Code constitutes an exception to that rule.

Based on the rationale underpinning its enactment, the plain language of section 115-10 of the Code provides for the admission, in relevant part, of “testimony of an out of court statement” made by the minor victim that is solicited from a witness who directly heard the minor making the statement. 725 ILCS 5/115-10(a)(2).

To accept defendant’s premise—which the court did not—would signify that section 115-10 of the Code permits the admission of specific hearsay declarations as substantive evidence solely when a minor under 13 years old testifies inconsistently with the identified corroborative hearsay statements the minor conveyed to others.

If the provisions of section 115­ 10 are satisfied, whether a minor victim testifies consistently, inconsistently, or by not responding to questions posed regarding the sexual acts alleged does not affect the admissibility—under section 115-10—of the minor’s out-of-court statements to others that detailed a defendant’s sexual acts.

In the context of a section 115-10 hearing, the rule proscribing the admission of a witness’s prior consistent statements has no application whatsoever.