Kane County Nuggets

People v. Doolan, 2016 IL App (1st) 141780 (November). Episode 263 (Duration 6:47)

Defendant is accountable for first degree murder because him and his buddies decided to start a fight with a victim with an enlarged heart.

People v. Bond, 2016 IL App (1st) 152007  (November). Episode 262 (Duration 8:00)

Can a Blue Island police officer enter the city of Chicago, an adjoining municipality, and exercise his police powers when he observes an illegally parked vehicle in violation of the Illinois Vehicle Code?

Podcast Episode 261 (Duration 16:23) of the Criminal Nuggets Podcast features a quick rundown of the October 2016 Illinois criminal case list. 18 published opinions were released for your perusing. This is where well informed litigators get their updates.

Subscribe: iTunes | Google Play | Android | RSS | Direct Download

iTunes Google Play Android RSS

Direct Download

Listen to the audio round-up in under 20 minutes or download your copy of the case list to peruse the cases when you feel good and ready. Click below to save your PDF copy of the cases now.

Download Your Copy
October 2016 Case List
(Now Available)

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. 

Add To My Library Now

Download This Case List Now.

Here is where you easily get caught up with the top October cases for 2016. Here's a quick snapshot of what you missed:

1. People v. Jones

How you can treat juvenile adjudications just like criminal convictions without getting into Aprendi problems.  (Go to 0:31)

2. People v. Wall

Outrageous blatant lie told by police to coerce defendant into signing this "consent to search".  (Go to 2:04)

3. People v. Jones

Prosecutor kept using the same word in his opening and managed to inflame the passions and prejudice of the jury. Retrial ordered.  (Go to 3:33)

4. People v. Duran

Traffic stop begins with defendant being pulled from the car and handcuffed. Court says sometimes that's a reasonable thing to do.  (Go to 4:08)

5. In re A.S.

Discover how this judge completely abdicated his one and only responsibility during this Batson challenge. As a byproduct, defense attorneys get this nice little case to cite in the future.  (Go to 5:26)

6. People v. Swift

Defendant smacks his car into a trailer truck pulled over to the side of the road. He has some weed in his system. Crime or no crime?  (Go to 6:41)

7. People v. Taylor

Judge completely misreads this sentencing provision. Defendant entitled to some serious mitigation.  (Go to 8:18)

8. People v. Jackson

Imagine a guy orders 10 clowns from one mini-car and drives away with the mini-car? How many vehicular hijackings just occurred? 10 or 1?  (Go to 10:30)

9. People v. Sandifer

Deceased rape victims get to benefit from the protections offered by rape shield statutes. Kind of slimey to argue that they don't.  (Go to 11:20)

10. People v. Dominguez

Counsel didn't quite tell defendant he would get deported with a conviction. But reviewing court ain't buying defendant didn't know he was  screwed.  (Go to 11:59) 

11. People v. Dorsey

Defendant attempts a "Point Break" type police escape. He manages to totally destroy an apartment, scare the hell out a lady and her kids, and - oh yea - get caught.  (Go to 13:17 )

Before You Go...

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

Download Your Copy
October 2016 Case List
(Now Available)

Download the most recent Illinois monthly case list. Give yourself a head start and stay current with the cases. Download this clickable quick summary and get up to speed in no time.

Add To My Library Now

Download This Case List Now.

People v. Staake, 2016 IL App (4th) 140638 (November). Episode 260 (Duration 9:52)

Second degree murder is not a lesser included offense of first degree murder; it is a lesser mitigated offense of first degree murder.

Background

Defendant is originally charged with second degree murder for stabbing a carnival worker who had punched him in the face.

5 months later the state dropped the second degree murder and charged defendant with an intentional first degree murder.

One month after that they added a second count of strong probability of death or great bodily harm count.

Speedy & Joinder Issues

The Williams rule holds that if the initial and subsequent charges filed against the defendant are subject to compulsory joinder, delays attributable to the defendant on the initial charges are not attributable to the defendant on the subsequent charges. See People v. Williams, 204 Ill. 2d 191 (2003).

The rule only applies when the subsequent charge filed by the State is “new and additional,” thereby hindering the defendant’s ability to prepare for trial on the subsequent charge.

Issue Then…

The “critical point” is whether the original indictment gave defendant adequate notice to prepare his defense to the subsequent charge.

Murder v. Second Degree Murder

The elements of the crimes of first degree murder and second degree murder are the same.

In other words, to convict a defendant of either first degree murder or second degree murder, the State must prove beyond a reasonable doubt the elements which constitute the crime of first degree murder.

Only after the trier of fact has concluded that the State has done so may the trier of fact then consider whether a mitigating factor is present so as to reduce the defendant’s conviction from first degree murder to second degree murder.

What is Second Degree Murder?

Accordingly, when the State chooses to charge a defendant with second degree murder, all it is doing is conceding the existence of a mitigating factor, thereby removing from defendant the burden of proving a mitigating factors existence.

When the State charges a defendant with second degree murder, it must still prove all of the elements that underlie the offense of first degree murder. However, if the jury finds that the State has proved those elements beyond a reasonable doubt, the verdict of the jury would be that the defendant is guilty of second degree murder, not first degree murder.

This result occurs because the State had effectively conceded the existence of the mitigating factor by charging the defendant only with second degree murder, not first degree murder.

Therefore, first degree murder is not a “new and additional” charge to second degree murder.

That is because the criminal behavior the State alleges the defendant engaged in regarding both charges—that is, first degree murder and second degree murder—is the same. The only difference between the two charges is the existence of a mitigating factor.

If the State initially decides to concede the existence of a mitigating factor by charging the defendant with second degree murder and then changes its position by charging first degree murder, the only change is that the State no longer concedes the existence of a mitigating factor.

That does not constitute a “new and additional” charge.

This Case

All of this matters because after the amendment to the charges in this case there was no joinder, speedy or preliminary hearing problem.

Defendant could claim no credible surprise or inability to properly defend the charges.

What About New Preliminary Hearing?

Also, note that the requirement for a preliminary hearing under article I, Section 7 of our constitution and 725 ILCS 5/111-2(e) only requires probable cause for any for at least one felony charged not all of the felonies.

This means that once a trial court, after conducting a preliminary hearing, has determined that probable cause exists for any felony offense with which the defendant is charged, that is all the trial court need determine before concluding that (1) the State has met its burden at the preliminary hearing and (2) the defendant should be held for trial on all of the charges then pending against him.

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.

Facts

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.

Surveillance Location

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. 

Issue

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. 

Surveillance Privilege Rationale

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.

The Standard

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 Test

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 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.

Burden Shifting

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.

Analysis

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.

Holding

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.

Transcripts A Good Idea

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.

A behind the scenes look at the legislative process including the good, the bad, and the ugly. 

Episode 258 (Duration 29:55).  Today we get a little personal, as Jeff explains his motivation for getting involved in lawmaking.

Subscribe: iTunes | Google Play | Android | RSS | Direct Download

iTunes Google Play Android RSS

Direct Download

We last spoke to Jeffrey Hall in Episode 251 where he gave us an update to the Illinois Cannabis / DUI decriminalization law.

Jeffrey Hall

Jeffrey R. Hall is a former Assistant State’s Attorney from Tazewell County, Illinois. He has been practicing criminal law since 2004. Currently, Jeff continues to concentrate his practice on criminal law and driver’s license issues. He is a partner of Hall, Rustom & Fritz, LLC. 

The Legislative Process

Why would any rationally thinking attorney ever get involved in the legislative process? It's political and messy, yet Jeff dove right in. Here's what we talked about:

• Why Jeff spent years working on reforming the DUI-Cannabis law
• What it means to seek justice
• How Arizona (that's right crazy Arizona) had a more logical law
• Examples of prosecutorial discretion run-a-muck
• What motivations and the deep-seated reasons we have for some laws

Krystin Rennie Story

Jeff began talking about one of his own cases that involved death and tragedy. This case involved a 16 year old driver who misjudged the traffic in a construction zone.

Her car caused an accident with a biker. The biker's wife died in the accident, and the biker was seriously injured. Krystin had a cannabis derivative in her blood, and was found guilty (under the old law) of aggravated driving while under the influence of cannabis. 

In many ways, this case was the final straw that pushed Jeff to seek relief in Springfield.

In Episode 251...

The last time we talked to Jeff, he talked about some of the changes he saw happening in the courts after the new law he helped pass became effective. You can listen to that discussion by clicking this sentence and download the copy of the motion Jeff uses to help ensure his clients can benefit from the new possession of cannabis provisions.

You can download the motion below.

Download Jeff's Sample
"Motion For Admonishments...And Notice Of Election".

Download this sample motion Jeff uses to ensure his clients charged with possession of cannabis before the law change are able to benefit from the change in the law.

Add To My Library Now

Download This Sample Motion Now! Important Links

• Krystin Rennie Story
• IDOC Inmate R88453 - RENNIE, KRYSTIN
• People v. Rennie
• Attorney Jeffrey R. Hall
• Jeff Hall’s Blog
• Hall, Rustom & Fritz, Inc.
• "Extraordinary Circumstances" in DUI Death Cases
• People v. Martin, 2011 IL 109102 (April)
• The Scott Shirey Case

Why You Should Listen

✓ Out of the gate you get to hear the gripping tale of Krystin Rennie. A wife is killed and a husband loses his arm. A stone sober teenager is charged, and a lawyer finally has enough. (Go to 2:04)

✓ Discover that "extraordinary circumstances" in DUI death cases is as elusive a concept as the North American Yetti. (Got to 4:46)

✓ An absurd example of criminal liability that existed under the old law. (Go to 5:59)

✓ Was there ever a logical basis to criminalize having cannabis substrates in your body while driving? Did Anti-DUI groups take things too far? Was People v. Martin, 2011 IL 109102 (April) the worst Illinois Supreme court decision of the modern era?(Go to 8:00)

✓ Under the old paradigm having a culpable mental state, an actus rea, went right out the window. (Go to 8:30)

✓ How 33 other states including Arizona thought strict liability for driving with cannabis derivatives in your body, without evidence of any intoxication was absurd on its face. (Go to 10:20)

✓ Why you should never believe supporters of harsh criminal laws when they tell you we can rely on a prosecutor's ethical obligation to seek justice and depend on their wise application of prosecutorial discretion. (Go to 9:50)

✓ The truth about the Scott Shirey case. (Go to 12:06)

✓ How we almost had a DUI petty offense called Diving While Drugs In Your System. It would have been punishable by fine only (no jail), and listed under 625 ILCS 5/11-501(a)(8). But don't look there now, you won't find it. Jeff explains what the heck happened to that idea. (Go to 15:01)

✓ Cannabis can kill. Jeff explains exactly how. (Go to 17:14)

✓ Discover the reason why we ended up with a strict liability law requiring a threshold amount of THC in the body. Furthermore, if everyone agreed to a 15 ng/ml THC threshold, and the bill passed that way, how did we end up with a law requiring either 5 nanograms or more of THC per milliliter of whole blood or 10 nanograms or more of THC per milliliter of other bodily substance? (Go to 18:07)

✓ Did you know that in Colorado they also have a 10 ng/ml threshold. However, betcha didn't know it's not exactly strict liability there. It's merely a presumption that is rebuttable by the defense. It goes something like this: "Yes, I had that much THC in m blood, but here is the evidence that demonstrates I was not intoxicated." (Go to 21:01)

✓ The weird interplay of politics and law making that results in the original sponsors of a bill, in fact its strongest proponents, in the end not supporting their own bill. (Go to 23:10)

✓ We may all have to rethink what it means for prosecutors to seek justice. Maybe, sometimes prosecutorial discretion means not prosecuting some cases. Hmmm? Naw, that's crazy! (23:32-26:30)

People v. Jones, 2016 IL App (1st) 141008 (October). Episode 257 (Duration 6:59)

Big problems with this prosecutor's opening statement. 

What They Said

The State began its opening statement as follows:

“The greatest danger that a police officer can face during his tour of duty is a gun and a criminal who’s willing to use that gun to shoot and kill that police officer. Ladies and gentlemen, each of your juries has sitting before you one such criminal…“[The police] learned that behind that door were two cold-blooded criminals who had reasons to keep those police out…[Y]ou must remember the criminal controls the crime scene. These two defendants were in that house for quite some time with that evidence before they ultimately came out.”

And finally, the State concluded:

“The law recognizes that what one criminal may not be brave enough to do alone, two criminals just might be. So it’s as if defendant Jones had his finger on that trigger as did defendant Thomas. Criminals work together and they are equally responsible for crimes they commit.”

Defense counsel objected, the judge told to the jury to disregard it, and the prosecutor just kept calling them “criminals.”

Derogatory Comments

Courts have decried the use of derogatory and pejorative terms used to describe the defendant.

Comments intending only to arouse the prejudice and passion of the jury are improper.

Is Reversal Required?

Reversal is required only if the “comments engender substantial prejudice against a defendant such that it is impossible to say whether or not a verdict of guilt resulted from them.

Stated differently, if the jury could have reached a contrary verdict had the improper remarks not been made, or the reviewing court cannot say that the prosecutor’s improper remarks did not contribute to the defendant’s conviction, a new trial should be granted.

Analysis

The reviewing court said the State’s opening statement was premised on its characterization of Jones as a “cold blooded criminal” facing off against police officers.

Defendant was in a home about to be searched by police when the codefendant shot a shotgun at the door injuring 3 officers.

This argument, which did not belong in an opening statement under any circumstances, conjured a powerful image calculated to invoke an emotional response.

No Convictions

Certainly, the characterization had no basis in fact, given that prior to this case, Jones had never been convicted of a crime.

Thus, there was no basis for the State’s references to Jones as a criminal other than to inflame the passions of the jury.

Repetition

Additionally, the State’s repetition of the “criminal” pejorative throughout its opening statement effectively nullified the effect of the court’s instruction to disregard the State’s characterization of defendant as well as its admonishment that opening statements were not evidence.

The Evidence Not Overwhelming

Also relevant to the prejudice inquiry is the fact that the State’s evidence in this case, while undoubtedly sufficient to convict, was not overwhelming.

The only evidence that Jones was involved in the shooting were the statements of other people in the house to the police and the grand jury that Jones told his codefendant to shoot.

These statements were disavowed at trial.

This relatively thin evidence makes it more likely that the jury was over-persuaded by the State’s description of Jones as a criminal, and therefore a bad person deserving of punishment.

Prosecutors Been Warned

The Illinois high court has warned that threats of reversal, and words of condemnation and disapproval have been less than effective in curbing prosecutorial misconduct.

This reviewing court had no problem reversing, where it felt the State’s misconduct required it to do more than merely express disapproval.

Holding

Reversed and remanded but not before the original trial judge was bench slapped and removed from the case for being biased and without dignity nor courtesy at the sentencing hearing.

The trial court really took issue with defendant's statements that he was worried about his kids. The trial court then made derisive comments intended to malign the entire class of criminal who has kids.

The most Honorable Judge Robert Steigmann of the Fourth Appellate District provides valuable insight and lessons on proper impeachment, prior inconsistent statements, and 725 ILCS 5/115-10.1.

Episode 256 (Duration 47:16). Prepare for valuable insight, trial lessons, and behind the scenes action from one of Illinois's most respected judges.

Subscribe: iTunes | Google Play | Android | RSS | Direct Download

iTunes Google Play Android RSS

Download

If you don’t do anything else, at least download the cheat-sheet and other impeachment/prior inconsistent statement resources I put together to ensure you don’t ever make another error on this topic.

Download This Impeachment & Prior Inconsistent Statement Checklist

Cheat-sheet & checklist, resource guide, and sample Brother's Motion all included.
Download now.

Add To My Library Now
Is Judge Steigmann The Longest Serving Illinois Judge?

I actually don't know the answer to this question. 

But check out these numbers: 

In 1977 Robert Steigmann ran for judge and won at the age of 31. Before that he was a prosecutor at the Champaign County State's Attorney's Office. He was there 5 years. He also served 2 years at the Sangamon County State's Attorney's Office, and worked for one year at the legislative reference bureau right out of law school.

Judge Stegmann was a 6th Judicial Circuit (Champaign) trial judge for 12 years.

Since 1989 he has been on the Fourth Appellate District. That's 28 years. In total he's been on the bench for 40 years!

I asked him directly if retirement was right around the corner.

He's reply was that it's time to retire when the EMT says, "We can't revive him."

Topics Covered 

In this discussion Judge Steigman revealed the following information.

• Difference Between Impeachment & 725 ILCS 5/115-10.1
• Origins Story For 725 ILCS 5/115-10.1
• Biggest Mistakes Attorneys Are Making 
• Glaring Benefits of The Statute That Go Unused 
• Great Examples Of How To Do It Right
• Encouraging Reminder That Trials Are Truth Seeking Endeavours

Law School Examples 

Making sense of the topics discussed will be a little easier if you know these "law school" type scenarios used by the judge through the discussion. 

The Traffic Scenario

In this scenario, the judge reverts to an old civil law problem.

A traffic accident is being litigated and the central issues revolves around who had the green light.

The witness testifies in court that the green car had the green light. However, right after the accident the witness tells the police that he wasn't sure who had the green light, but thought it might have been the white car.

Obviously, the lawyer for the white car driver is going to want to impeach this witness.

Rape Case He Tried

The judge remembered an old rape case that he prosecuted. 

This was before prior inconsistent statements could be argued substantively. Here's what happened:

Defendant was charged with rape. The victim had blood and mud on her body. Defendant's grandmother (Grandma) remembered that the defendant came home late that day. 

He had blood and mud on his clothes. 

Interestingly, for the first time in his entire life, that night he did the laundry. He washed the very clothes he came home in. At the trial, Grandma didn't remember anymore.

The judge would have liked the jury to have known what she told the cops. 

Important Links & Resources

• 725 ILCS 5/115-10.1
• Illinois Rule of Evidence 613(b)
• Illinois Rule of Evidence 801(d)(1)(A)
• Illinois Rule of Evidence 607
• Illinois Evidence Manual, 4th
• Graham's Handbook of  Illinois Evidence
• People v. Brothers, 2015 IL App (4th) 130644 (September 2015) (acknowledge hearing explained)
• The Affirmative Damage Rule
• See Also Paul Meyers On Why Experienced Attorneys Still Confuse Impeachment, Substantive Evidence, and Prior Inconsistent Statements
• See Also Prior Inconsistent Statement Impeachment Is Not Necessarily a Thing
• See Also Two Step Formula To Avoid Prior Inconsistent Statement Error
• See Also Better Read This If You Are An Illinois Trial Attorney
• See Also Illinois Criminal Pattern Jury Instruction 3.11 (pay attention to the committee notes)

More Highlights From The Podcast

✓  How lawyers are not keeping up with the bare bone fundamentals of impeaching a witness. Even trial judges have been known to stop a lawyer who's doing it right because the trial judge is confused about how it should be done. Steigmann walks us through doing it right.  (Go to 3:15)

✓  Time, place, location, and as specific as you can be - all day baby - It's that easy! And basic impeachment requires presenting extrinsic evidence if you get the "no" or any "hemming and hawing". (Go to 4:44)

✓  The Judge begins with Rule 613(b). Know it, and everything else falls right into place. 

✓  The absolutely WRONG QUESTION to ask when you're perfecting impeachment. The right way is super simple, yet this improper question is asked as frequently as you catch the bailiff snoring. (Go to 6:19)

✓  This one-two combo of ineptness drives The Judge crazy. Especially, when it's written down right there in black and white for all to read, process, understand and execute correctly. (Go to 7:05)

✓  There are all kinds of witnesses in a trial. An impeachment witness has one simple task and role to play. Know this role and you'll never make a mistake. (Go to 7:20)

✓  Here is some interesting information I bet you've never heard on how and why Judge Steigmann decided to write the legislation for 725 ILCS 5/115-10.1. He wrote this law 33 years ago and argued for it's passage when he was still a prosecutor. His own problems with witnesses and fundamental roadblocks to truth seeking played big a big part. (Go to 7:36)

✓  Know this and things will fit better in your head: prior inconsistent statements under 725 ILCS 5/115-10.1 were built right on top of the existing rules and procedures for impeachment.

✓  Listen to The Judge describe a case where a defendant was acquitted of a shooting on a directed finding because a prosecutor did not properly impeach the civilian witnesses. This happened in his home county in downtown Champaign. The police played it by the book and recorded the statements, but the jury never heard them! (Go to 8:35)

✓  Here is the easiest way to define impeachment. (Go to 9:59)

✓  Foundation, Foundation, Foundation. (Go to 11:24) & (27:45)

✓  Some prosecutors complain about how technical the rules can get. This is how The Judge responds to these complaints. (Go to 11:50) Also, at 18:12 The Judge explains that this stuff sounds technical, but it's actually quite easy.

✓  Before Judge Steigman drafted 725 ILCS 5/115-10.1 he took a case to the Illinois Supreme Court inviting the high court to allow impeachment to be used as substantive evidence. The Supreme Court of the United States had just allowed California to do it so he felt good about his chances. He lost. 7 - 0. No hard feelings. (Go to 13:04)

✓  Here is the easiest way to explain the difference between impeachment under rule 613(b) and prior inconsistent statements under 725 ILCS 5/115-10.1 (Go to 15:42)

✓  What's up with Illinois Supreme Court Rule 801(d)? Were they just trying to validate Judge Steigmann's work? (Go to 17:31)

✓  Here is the easiest way to define substantive evidence. Hint: Everything is substantive unless it isn't. (Go to 18:12)

✓  Originally, The Judge's first draft of 725 ILCS 5/115-10.1 had no extrinsic evidence requirement (no requirement that the statement be written, recorded or acknowledged). Can you guess why Chicago legislatures said this was a "no-go"? (Go to 19:22)

✓  In it's 33 years of existence, prosecutors still don't have a clue about the "acknowledgment hearing" or how to use it. Trial life could get so easy for them if they just bothered to look this up. If they're serious about this they'll start with People v. Brothers, 2015 IL App (4th) 130644 (September 2015). (Go to 20:42- 24:55)

✓  The ordinary rules of impeachment say when your witness claims to "not remember anything" or insists he "never said that" you absolutely CANNOT IMPEACH him. See the affirmative damage rule...but this is precisely where the statute comes to the rescue. (Go to 21:09)

✓  Listen carefully, this is how to and when to conduct an acknowledgment hearing under (c)(2)(B). Defense attorneys, I'm talking to you too. After the acknowledgement, you can tune out, it doesn't matter one bit what gibberish dribbles from the witness. (Go to 22:12)

✓  WARNING: 725 ILCS 5/115-10.1 contains no language limiting the use of this rule to prosecutors only. Defense attorneys can use it as well. Pay attention here to see how. (Go to 25:02) Also jump to 38:39 to see how the defense can "lock-in" an alibi witness.

✓  Not doing this, actually, merely being unprepared to do this may constitute plain error. Definitely add this to your list of things "not to do". (Go to 28:04)

✓  The judge gives some Straightforward trial advice used by clever litigators. Get your pens out and write down these short tips. Once you write it down then internalize it. Then, look out. (Go to 32:04)

✓  Know this: There is a clear difference between merely having a "good faith basis" and having "extrinsic evidence" lined up waiting in the hallway ready to perfect your impeachment. The Judge reveals one of his law school final exam questions here. (Go to 33:56)

✓  What's the jury trial equivalent of a free shot or a football's "Hail Mary"? (Go to 34:14)

✓  Difference between merely being disappointed by your witness and being affirmatively damaged by that person's testimony. Why does it matter? (Go to 36:09)

✓  TO DEFENSE LAWYERS: Judge Steigman presents the most important takeaway nugget of information you should know about this issue. (Go to 40:25)

Download This Impeachment & Prior Inconsistent Statement Checklist

Cheat-sheet & checklist, resource guide, and sample Brother's Motion all included.
Download now.

Add To My Library Now

In re A.S., 2016 IL App (1st) 161259 (October). Episode 255 (Duration 12:42)

Because the stage-two and stage-three Batson hearing in this case may have been influenced by the trial court’s demonstrably incorrect view of the law remand for further proceedings was ordered

In this jury selection the state used 4 of its 5 peremptory challenges to strike African Americans.

Facts

It explained…

• One was a social worker
• One lady had her house surrounded by police when they arrested her son for robbery,
• Another lady was a social worker who worked with homeless people from East Garfield Park and she had an attempted robbery from the early 1960's and a criminal trespass in the 70's, and finally
• The last lady was struck because she did not disclose a 39 year old theft conviction that she said she forgot about.

Defense counsel pointed out there were white social workers and white jurors with criminal backgrounds that were not stricken by the State.

They tried to distinguish between the seriousness of the offenses.

3-Step Process

Batson’s three-step process for addressing alleged discriminatory use of peremptory challenges is well-settled.

First, it is the defendant’s burden to make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race.

Second, once a defendant makes out a prima facie case, the burden shifts to the prosecution to articulate a race-neutral reason for excluding each dismissed juror, which “need not rise to the level justifying exercise of a challenge for cause.” Also at the second stage, defendant is afforded the opportunity to argue that the State’s proffered reasons for striking particular members of the venire are pretextual.

At the third stage, the trial court makes the ultimate determination of whether the party opposing the challenge has made the required showing of purposeful discrimination. At this stage, it is the trial court’s responsibility to undertake a sincere and reasoned attempt to evaluate the prosecutor’s explanations in light of the circumstances of the case. In addition to considering the stated reasons offered by the prosecutor, the court evaluates the prosecutor’s demeanor, which reviewing courts have recognized entails credibility determinations.

Prima Facie Case

The question of whether or not a prima facie case of discrimination was even raised is an interesting one here.

The record does not reflect that the court relied on anything other than the number of peremptories used by the State against prospective black jurors, a factor that, while relevant, is not, standing alone, sufficient to make out a prima facie Batson violation.

The law is clear that the number of black members of venire peremptorily challenged, without more, not sufficient to establish prima facie case of discrimination.

A pattern of discrimination is not demonstrated anytime a party strikes more than one juror of any race.

Evidence of a pattern of discriminatory strikes is one factor a court should consider when determining whether the party challenging the peremptory strike has established a prima facie case under Batson, it is not a dispositive factor.

However, it is also true that exclusion of just one venireperson on account of race is unconstitutional and requires reversal of the conviction. The question comes down to whether or not you have the facts to prove discrimination.

Here are the relevant factors a trial court should consider in determining whether a prima facie Batson violation has been established:

(1) The racial identity between the party exercising the peremptory challenge and the excluded venirepersons; 
(2) A pattern of strikes against African-American venirepersons; 
(3) Disproportionate use of peremptory challenges against African American venirepersons; 
(4) The level of African-American representation in the venire as compared to the jury; 
(5) The prosecutor’s questions and statements of the challenging party during voir dire examination and while exercising peremptory challenges; 
(6) Whether the excluded African-American venirepersons were a heterogeneous group sharing race as their only common characteristic; 
(7) The race of the defendant, victim, and witnesses; and 
(8) The unchallenged presence of jurors of that race on the seated jury is a factor properly considered and tends to weaken the basis for a prima facie case of discrimination.

The reviewing court found there was clearly a pattern of strikes by the prosecution against black members of the venire raising a prima facie case for a violation. The State exercised three peremptories in a row against prospective black jurors on the first day of jury selection, resulting in the dismissal of every black member of the venire questioned thus far.

Stage Two: Race Neutral Reasons

The state asked very little questions of them. It appeared that these three members of the venire were a heterogeneous group sharing race as their only common characteristic. Defendant was black and the victim of the residential burglary was white.

Stage Three: Judge's Evaluation

The problem here is that it does not appear that the trial court conducted a fair evaluation of the State's proffered reasons for excluding the jury members.

This evaluation must be done in the context of the jury selection process and must take into account the State's demeanor and credibility for their stated professor.

The court simply did not further evaluate the circumstances before declaring the State’s reason race-neutral. In effect, the court terminated the Batsonprocess at stage two.

Holding

More troubling was the fact that the trial court appeared to embellish the facts while it defended the State’s exercise of a peremptory challenges. This was not its job to do. It was not appropriate for the court itself to establish some rational basis for the State of Illinois not to want this person.

Because the record in this case revealed that the trial court usurped the State’s role at stage two and failed to conduct a stage three Batson hearing remand for further proceedings is required.

Reversed, but a new trial was not ordered. Instead the trial judge must complete the state 2 and stage 3 requirements of Batson.

See Also

• People v. Williams, 2015 IL App (1st) 131103 (November 2015)
• People v. Shaw, 2016 IL App (4th) 150444 (April)
• Foster v. Chatman, SCOTUS No. 14–8349

People v. Jackson, 2016 IL App (1st) 133823 (October). Episode 254 (Duration 4:16)

One hijacked car means one aggravated vehicular hijacking even though there were two victims.