Kane County Nuggets

http://illinoiscaselaw.com/eyewitness-identification-expert-witness-admissibility

There is so much research on eyewitness identification expert witness admissibility testimony out there. We have all received the message: “Eyewitness identification testimony is unreliable.” Ok, now what?

The transition into practice for the everyday defense attorney has been slow in coming. Part of the reason, for this is that trial judges still actively resist any use of an eyewitness testimony expert in their courtroom. It is time to start fighting back.

A recent decision out of the First District in the Illinois Appellate Court system, does a great job of paving the way forward for defense attorneys. See People v. Lerma, 2014 IL App (1st) 121880 (09/08/2014).  

Provide your email and download the sample motions discussed in the video by clicking below.

Lerma illustrates important steps that can help the entire legal community move forward on this issue.

Lets look at this case to see why I have placed so much hope in it.

Victim and a friend were on his porch. Shooter walks up to the porch and shoots victim in the chest.

Victim manages to tell his friend and his father moments before he died that “Lucky” shot him. It turns out there is an acquaintance named “Lucky” known to the victim and his friend.

Other important facts about the case include:

Defendant sought to use an expert on memory and eyewitness identification to assist the jury with the theory of memory within the field of psychology.

The expert was to help address many misconceptions of memory and eyewitness identification held by lay people and juries.

Further, Defendant needed the expert to point out the significance of cross examination of the eyewitnesses. Defendant alleged that cross-examination of eyewitness testimony would appear insignificant to jurors due to their common misperceptions and lack of knowledge regarding memory and eyewitness identification.

The expert was prepared to address the following issues in this case -

Further, the expert was prepared to discuss how the accuracy of eyewitness identifications could be reduced by the police procedures utilized in this case. The expert would have also addressed how common misconceptions of memory are in conflict with the theory of memory as generally accepted in the field of psychology.

Specifically in regards to dying declaration, the expert was prepared to testify how problems in reliability of that testimony are raised when the victim’s physical condition itself could contribute to a mistake or even a complete fabrication by the victim.

The limited time may cause a truncated, incomplete or one-sided statement that may be misinterpreted by the witnesses.

In short, the expert was ready to educate the jury with this lesson: “the factors that affect eyewitness reliability *** are just as present at the time of an event that involves a dying witness as one who is not dying.” ¶ 8

The expert noted that -

“...the witness could use his or her prior knowledge of the acquaintance’s appearance to reconstruct his or her memory of the original events–the crime–such that the in fact poor original memory of the actual criminal is replaced with a stronger and more confidence-evoking memory of the acquaintance.” ¶ 16.

The trial court denied the motion for the expert witness because the eyewitnesses knew Defendant and the court believed that this negated the need for the expert.

The trial court gave the usual factors that are listed by judges hostile to this type of witness:

In short, the trial court denied the motion without much analysis or consideration of the actual testimony the expert was prepared to give.

The reviewing court reversed this murder conviction. The appellate court thought that the trial court did not carefully scrutinize the expert’s report and was to quick to dismiss the usefulness of the expert.

The judges reasoning for denying the use of the exper were all, contradicted in the very report created by the expert witness. In particular, the court believed that

“‘everybody knows’ that eyewitnesses are less likely to misidentify an acquaintance, describing it as “a function of human nature.” ¶ 38.

The expert directly refuted this belief.

The trial court thought the expert was going to come into court and give his opinion on the veracity of the witnesses.  The expert carefully explained that he would not do this.

As I discussed earlier, the lesson here for the defense bar is to get your expert involved as early as possible.

I get it. Your trial judge hates eyewitness experts and won’t in a million year every grant your motion to admit. So why spend the money to hire the expert in the first place?

Obviously, litigation costs and expense is a factor to consider in every case. There are times when that factor will influence a decision to take a plea or proceed to trial without a full arsenal.

In regards, to the use of eyewitness experts at trial we are in this holding pattern. Some trial judges hate them, while appellate courts are beginning to understand them. For those defendant’s and defense attorneys willing to structure your litigation for the reviewing courts there may be a big payoff in the end.

However, if you don’t have an expert, litigate the issue, and document the specific use of the expert in your case a reviewing court won’t give you any relief.

By leaving your email, you can download these motions here directly. Remember, your motion to admit does not have to be as detailed as these sample motions. The lesson from Lerma is to incorporate into your motion all the specific points and factors where your expert is prepared to testify about your case. Don’t forget to include your expert’s curriculum vitae and report.

There are so many studies, white papers, and court filings out there that it can be overwhelming. I have gathered two documents featuring sample motions to admit eyewitness expert witness. These motions were created by

Good luck.

http://illinoiscaselaw.com/no-right-to-expungement-in-illinois-after-a-pardon/

Is my case automatically expunged if I win a pardon? Well, one should know that automatically, there is no right to expungement in Illinois after a pardon.Imagine, actually jumping through all the hoops to actually win a pardon, only to lose an expungement. That is exactly what can happen when we realize that pardons and expungements are two different legal mechanisms on independent tracks.

In podcast Episode 026, of the Criminal Nuggets podcast I discuss the case of People Laguna, 2014 IL APP (2d) 131145 (8/22/2014).

Defendant was convicted of unlawful possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1)), aggravated fleeing or attempting to elude a police officer, and aggravated driving under the influence.

Some of what he actually did when arrested was  -

Yet, defendant actually wins a gubernatorial pardon “With Order Permitting Expungement.” But in Illinois there is ...

The power of the Governor to grant a pardon is found in the Illinois Constitution. It provides that -

“[t]he Governor may grant reprieves, commutations and pardons, after conviction, for all offenses on such terms as he thinks proper. The manner of applying therefore [sic] may be regulated by law.”

Ill. Const. 1970, art. V, § 12.

“The power to grant or deny a petition for expungement is found in statutes created by the legislature.” People v. Howard, 233 Ill. 2d 213, 217 (2009).

A person who has been pardoned may file a petition for expungement.

However, “a gubernatorial pardon alone does not entitle a petitioner to expungement.”

Howard, 233 Ill. 2d at 218. See also Illinois Compiled Statutes the Criminal Identification Act section 20 ILCS 2630/5.2(e).

The use of the word “permitting” in a pardon implicitly acknowledges that a court has the power to grant or deny an expungement in Illinois. Id. at 222.

Actually, the Illinois Code on expungement and sealing says that a person who is 

...granted a pardon by the Governor which specifically authorizes expungement...[may petition the circuit court for an] order entered expunging the record of arrest from the official records of the arresting authority and order that the records of the circuit court clerk and the Department be sealed until further order of the court upon good cause shown or as otherwise provided herein...

20 ILCS 2630/5.2(e) [emphasis added].

As always, it is a balancing test.

Illinois cases involving expungement set out a list of factors to be considered by the trial court when deciding the matter. These include:

1. the strength of the State’s case against the petitioner
2. the State’s reasons for wishing to retain the records
3. the petitioner’s age, criminal record and employment history
4. the length of time between the arrest and the expungement petition
5. and the adverse consequences the petitioner may suffer if     expungement is not granted

See Chesler v. People, 309 Ill. App. 3d 145, 151 (1999).

These factors must be balanced. The list is not exhaustive. These factors have been codified in 20 ILCS 2630/5.2(d)(7).

Defendant won the pardon but lost the expungement.

Apparently, for Defendant it was always about the expungement because he was trying to avoid negative immigration consequences.

The court looked at the seriousness of the offense of which he was convicted. The court noted that Defendant did some pretty serious stuff. He not only endangered citizens but also put the lives of law enforcement and emergency responders at risk.

His criminal history also did not help him. Some of his past included:

Defendant did put a good fight at the expungement hearing. He had numerous character witness including an

...all testify to his otherwise “good citizenship”.

But it was not enough.

The court ultimately stated that it considered the mitigating evidence but found that it was outweighed by the seriousness of the offenses and the public’s compelling interest in maintaining the records.

Seriously though, how did he ever win the pardon? 

Search and seizure law dark side revealed.

http://illinoiscaselaw.com/?p=1217

Episode 025 of the Criminal Nuggets Podcast highlights an example of a case with a less than completely honest deputy. Very important facts were withheld from the defense, the judge, and the prosecution.

Push play above to hear all about People v. Gonzalez-Carrera, 2014 IL App (2d) 130968 (09/02/2014). 

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The defense ran a motion to suppress evidence based on what they thought was an unconstitutional traffic stop.

They won!

The case turned on whether or not the broken taillight could mattered in the middle of the day when the car was actually stopped. The law required red lights to be visible for at least 500 feet at night. See 625 ILCS 5/12-201(b) 

It was day time, and no evidence that red light was not visible for at least 500 feet. So, the judge granted the motion. All the evidence found in the car was suppressed.

The judge threw out and excluded from evidence

• 4 kilos of cocaine and
• 1 pound of meth

This was all discovered in the car.

Upon seeing the court’s ruling, the prosecution filed a motion to reconsider and a motion to reopen the proofs. The State told the judge, that there was more crucial evidence that they failed to mention in the hearing.

In their motion, they told the judge that their was more information the court had to consider.

You see, the driver of that car was under investigation by the F.B.I. That federal agency had been involved in a massive drug transaction with the Defendant right before the deputy pulled him over for driving with a broken taillight.

Ok. The judge wanted to know if the deputy who stopped the car knew of this federal investigation and federal transaction.

Um. The deputy didn’t tell the prosecution if he knew or not. Judge denied the motion to reconsider. The drugs were still out.

The prosecution then came back with another motion to reconsider and another motion to reopen the proofs.

This time they told the judge they had the whole story. Yes, the deputy who stopped the car, in fact, was aware of the federal investigation. That kind of may be why he stopped the car in the first place. The broken taillight thing was just the cop's good luck.

The trial court was not impressed. It found it “almost impossible to understand” why the deputy did not reveal all this information to the prosecution. The court saw this as dishonesty to the court because he was asked under oath for the basis of the stop. ¶ 11

Second motion to reconsider denied. Finally, The drugs were out.

The State appealed the trial court’s decision to not reopen the proofs.

The appellate court had no problem ruling that the trial court got it right.

“This type of post hearing switcheroo is not an appropriate use of a motion to reopen proofs.”  ¶ 22.

The final words written by the appellate court were these -

 “Honesty and candor between law enforcement officers and prosecutors is essential to the fair administration of justice. If an ongoing investigation is in jeopardy of being derailed because of an ongoing prosecution, there are legal options available to postpone the disclosure, so long as the defendant’s rights are not compromised. In short, lying under oath is never an option.”

¶ 26.

To be fair, the deputy did not go into court with a plan to actively deceive. In his mind, he was not lying or being dishonest.

I am sure the deputy did not think he was doing anything wrong. He never said anything that was not true. He merely failed to inform the prosecution, the defense, or the judge of one little fact.

In the end, the only perspective that matters is that of the court’s. Here, the trial court and appellate court described the officer’s behavior as dishonest.

Going by this standard then, I would say we have a big problem on our hands.

I say we have a problem because in my opinion...

Police are doing this sort of thing all the time.

The reason this type of behavior is frequent is because the police know that the law allows them to get away with it. It is easy to do.

In 99% or more the motions that are litigated, like the motion in this case, the prosecution wins the motion. This case was rare. That’s just how the law is set up.

Cop’s know that all they have to do is pick a car that they want to stop and then follow it until some minor traffic infraction is observed. Further, the cop’s know that in court the prosecution is most likely going to win any motions filed by the defense that challenge that stop.

This is true because in court when a judge reviews a case for a violation of the Fourth Amendment an objective standard is used.

When we use an objective standard that means the case is analyzed from the perspective of a reasonable officer in the same situation. The court does not ask, investigate, or care what was in the mind of the actual officer that performed the stop.

Instead, the court asks what an imaginary officer in the same situation as the the office would have done. Would a reasonable officer have stopped a car with a broken taillight?

With an objective standard:

• The subjective perspective of actual cop is irrelevant
• The court ignores what the actual cop’s motives were
• The reasonableness of an imaginary cop’s behavior is the focus

The current rules make it so easy for the police to withhold their true motives, intent, and reasons for their behavior. It is naive to think that this is not a common practice by law enforcement.

Well, answering the question of whether this a problem may not be that easy. Opinions will differ. But, these judges had their robes tied in a knot for a reason. They were angry.

You see, the State probably would have (almost certainly) would have won the motion if they had fronted the federal investigation from the get-go. The judges were upset with the perceived dishonesty by the police.

Whether this is an example of a one bad cop who made one bad decision or a symptom of a much broader problem with our system is going to depend on your perspective.

For my taste, I say it is a problem anytime the police are withholding important information about their true motives. Nobody, can really think that it is ever appropriate for the police to drive prosecutions. 

But that is exactly what happens when important information is kept away from the prosecutors.

The prosecutors are there for a reason.  As a defense attorney, let me say that the police should allow the prosecutors to do their job.

What do you think, should we allow the cop’s to give the sentence as well?

Wrong life sentence advice is ineffective assistance of counsel in a double murder.

http://illinoiscaselaw.com/life-sentence-advice-is-ineffective-assistance-of-counsel-double-murder/

Podcast Episode 024 of the Criminal Nuggets Podcast discusses a case where the defense attorney likey misread the Illinois natural life imprisonment statute. Unfortunately, this meant the client was misinformed that he was not eligible for a life sentence.

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People v. Brown, 2014 IL App (4th) 120887 (10/08/2014) is the case under discussion.

To get to the motion for arraignment that can be used to correct a mistake in admonishments click on the icon below. 

Defense counsel was defending a double murder. Apparently, his client had fired 11 shots killing two people. In the trial, the decision was made by Defendant, after consultation with his attorney, that he did not want a second degree murder instruction.

No lesser included instruction. Defendant chose to go with his self defense claim and nothing else. It was all or nothing for him. 

The problem is that trial counsel wrote a letter to Defendant informing him that that - 

“[f]or the court to impose natural life, it would have to find a prior conviction for first degree murder[,] which does not exist as these convictions are simultaneous.” ¶ 10.

Defense counsel got it wrong.

Illinois Compiled Statutes Code of Corrections section 730 ILCS 5/5-8-1 is partially titled “Natural Life Imprisonment.” That statute reads as follows: 

...the court shall sentence the defendant to a term of natural life imprisonment when the death penalty is not imposed if the defendant, (i) has previously been convicted of first degree murder under any state or federal law. or (ii)  is a person who, at the time of the commission of the murder, had attained the age of 17 or more and is found guilty of murdering an individual under 12 years of age; or, irrespective of the defendant's age at the time of the commission of the offense, is found guilty of murdering more than one victim... 

730 ILCS 5/5-8-1(a)(1)(c)(ii).

Thus, when a double murder is committed in Illinois a life sentence is the mandatory sentence.

The defense attorney simply did not read through the entire section of the statute!

The jury found defendant guilty of two counts of first degree murder.

Defendant is serving two life sentences for murder with a 30 year term for aggravated battery with a firearm.

Defendant lost his direct appeal. However, on his post conviction petition Defendant produced the letter from trial counsel containing the inaccurate information on the life sentence.

Defendant, of course, alleged that had he known he would face natural life in prison, he would not have agreed with counsel's advice to forego the tendering of a second-degree-murder instruction.

I find it hard to believe that trial counsel went through the entire case and never learned that this was in fact a life sentence case.

Defense counsel likely did go back an orally tell his client that he was facing a mandatory life sentence. The problem is that, if counsel did have that discussion with Defendant, it was not reflected anywhere in the record.

Remember in the first stage of a postconviction proceeding, the allegations of the petition, are liberally construed and taken to be true. Defendant need only state "the gist of a constitutional claim." People v. Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d 442, 445 (2001).

At the first stage of postconviction proceedings, however, a defendant need establish only it is arguable counsel's performance fell below an objective standard of reasonableness and he arguably was prejudiced as a result. People v. DuPree, 397 Ill. App. 3d 719, 737, 922 N.E.2d 503, 518 (2010).

The appellate court found that Defendant’s ability to make an informed decision regarding the instruction was impaired. Thus, the reviewing court found counsel's performance arguably fell below an objective standard of reasonableness. 

The idea that this decision was strategic and a matter of trial strategy is unpersuasive. The appellate court said it failed to see how a "strategy" based on a fundamental misunderstanding of the law can be considered a true strategy. See People v. Pugh, 157 Ill. 2d 1, 19, 623 N.E.2d 255, 263 (1993) (rejecting the State's strategy argument where defense counsel's advice was clearly attributable to a misapprehension of the law).

While conflicting testimony was presented as to what transpired, evidence exists to support defendant's version of events. The presence of that evidence shows defendant's allegations are not completely rebutted by the record. As such, it is arguable a reasonable probability exists the jury, if presented with a second-degree-murder instruction, would have convicted defendant of second degree murder instead of first degree murder.

The trial court's order dismissing defendant's petition was reversed. Case was remanded for second-stage proceedings, including appointment of counsel if requested by defendant. See 725 ILCS 5/122-2.1(b).

Back to my rank speculation. Assuming the lawyer had discovered that he incorrectly advised his client on the sentence. What should he have done differently?

He needed to figure out a way to make a record on the fact that Defendant was informed or arraigned correctly on the mandatory life sentence.

The most straightforward way for him to do this is to simply have filed a motion for arraignment.

The judge and the prosecutor may have wondered why he asking for another arraignment. And at this point, counsel may have to explain that there is a possibility that he has misadvised is client on the sentence in this case.

As embarrassing it may have been, it was vital that a record be made that clearly showed that Defendant was advised correctly on the applicable sentencing provision in his case. Here, that was a mandatory life sentence in a double murder. 

Prior bad acts evidence, also called other crimes evidence, is when the State is allowed to tell the jury in a criminal trial about your prior criminal history. Podcast Episode 023 of the Criminal Nuggets Podcast involves prior bad acts that were admitted in a sex case.  Usually, the law prevents this from happening.

http://illinoiscaselaw.com/prior-bad-acts-evidence

However, there are excetions. And in Illinois, being acquitted of the prior bad acts does not affect the admissibility of the prior bad acts in any subsequent trial for a different crime. See People v. Baldwin, 2014 IL App (1st) 121725 (08/15/2014). 

Just to be clear, lets all get on the same page.

Immagine a defendant has committed two sex crimes. Defendant did the same thing to two different victims. Essentially, this imaginary defendant lured and threatened his victims into his car where he sexually assaulted them. He did this twice, on two different occasions, with two different victims.

Let's call the first victim, Victim A. Let's call the second victim, Victim B.

Now lets pretend that the State chooses to prosecute and proceed to trial first on the charges involving Victim A.

Generally, the law does not allow the prosecution to allow the prosecution to mention the first crime involving Victim A in the trial involving Victim B and vice versa. There are exceptions, but that’s another article.

However, in sex cases the general prohibition against admitting prior bad acts evidence or other crimes evidence is relaxed.  Any prior sex crimes a defendant may have committed are likely to be revealed to a jury deliberating on a new charge if the new charge is also a new sex crime.

In fact, the Illinois Compiled Statutes Criminal Code says that any prior sex offense may admitted against a person currently charged with a sex case “(if that evidence is otherwise admissible under the rules of evidence) and may be considered for its bearing on any matter to which it is relevant.” See 725 ILCS 5/115-7.3(b).

These words, “for its bearing on any matter to which it is relevant” have been interrupted to include the Defendant’s propensity to commit sex crimes. This means the jury is allowed to consider the Defendant’s:

to commit sex crimes when the evaluate and consider the other crimes evidence in the case that they are deciding. See People v. Donoho, 204 Ill.2d 159, 176, 788 N.E.2d 707, 718 (Ill. 2003).

Now, the prior bad acts evidence in sex cases are not automatically admissible in a subsequent trial. The law still requires the judge to balance and weight certain factors. Before committing other crimes evidence, the following must happen:

“In weighing the probative value of the evidence against undue prejudice to the defendant, the court may consider:

(1) the proximity in time to the charged or predicate offense;

(2) the degree of factual similarity to the charged or predicate offense; or

(3) other relevant facts and circumstances.”

725 ILCS 5/115-7.3(c). 

Lets get back to our example. What happens, if Defendant is acquitted and found not guilty of committing the crime against Victim A. That is, What happens if Defendant wins his first trial? Is the State still allowed to admit evidence of the crime involving Victim A in Defendant’s second trial involving Victim B? 

In Illinois, the case of People v. Baldwin, explained that an acquittal of a prior crime has no bearing on the admissibility of that other crime in a subsequent trial involving a different crime.

This may not sound or feel right. We can resolve the apparent paradox by keeping in mind the different legal standards and burdens of proof that are involved in the case. 

In the first trial involving Victim A, the state would have had Victim A testify against Defendant to try to find him guilty of committing the crime against Victim A. The burden of proof involved would have been the traditions burden of proof in all criminal cases. This is the highest burden that exists in the law.

So, when we say that the Defendant was acquitted of the crime against Victim A. We mean that the jury in his trial for the crime involving Victim A found him not guilty of that crime.

When the State moves on to the second trial, the goal is to find him guilty the crime against Victim B. Obviously, Victim B would have to testify in the second trial. Section 115-7.3 says that Victim A can also testify in the second trial. This time, however, Victim A’s testimony is only considered other crimes evidence admitted to help prove that Defendant committed the crime against Victim B. To win the second trial the State has to show beyond a reasonable doubt that Victim B was traumatized. 

The burden of proof required to allow Victim A to testify this second time is the same burden of proof that all other evidence is held to. This time, since the state is not trying to prove beyond a reasonable doubt that Defendant committed a crime against Victim A, the state only has to show by “more than a mere suspicion” that the crime against Victim A was committed. See People v. Thingvold, 145 Ill. 2d 441, 456 (1991).

 With respect to the testimony that Victim A will provide, it is important to note that the burden of proof of that testimony that gone from high to low. Remember this, will help you understand why the State is allowed to have Victim A testify in the trial for the crime against Victim B, even though the State lost the trial for the crime against Victim A.

If a high jumper sets the bar on a first jump higher than the world’s record and misses the jump, we really don’t know what will happen if the jumper lower’s the bar and tries again. Missing on a really high jump, does not mean the jumper is going to miss on a second jump if the bar is substantially lowered.

Likewise, just because the State failed to prove the crime against Victim A when they had to it with proof beyond a reasonable doubt, does not mean the state cannot establish by a lower evidentiary standard that the crime against A happened. The prosecution is going from a higher burden to a lower burden of proof. 

Thinking of this high jumper will help us make sense of this quote from the Supreme Court:

“[T]he State is not precluded from ‘relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof.’ ” Jackson, 149 Ill. 2d at 550 (quoting Dowling v. United States, 493 U.S. 342, 349 (1990).

http://IllinoisCaseLaw.com/juvenile-court-sentencing/

Juvenile court sentencing in Illinois has just received a more level playing field. Episode 022 of the Criminal Nuggets Podcast mentions how not to long ago, an accused minor in juvenile court could only receive court supervision if the prosecution “Ok'd” it. A judge could not give that sentence if the State objected to it. The prosecution had a unilateral veto.

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Not any more. A change in the Illinois Compiled Statutes Juvenile Court Act now allows a judge to sentence a juvenile offender to court supervision if it is the right thing to do.

The law allows a judge in juvenile court sentencing to make a finding of delinquency after the State voices an objection to the minor receiving court supervision. Then the judge may consider...

“...the circumstances of the offense and the history, character, and condition of the minor, if the court is of the opinion that:

(i) the minor is not likely to commit further crimes;

(ii) the minor and the public would be best served if the minor were not to receive a criminal record; and

(iii) in the best interests of justice an order of continuance under supervision is more appropriate than a sentence otherwise permitted under this Act.”

705 ILCS 405/5-615(2). http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=070504050K5-615

This looks more complicated than it actually is in practice. When the State objects to a minor receiving court supervision, a normal sentencing hearing just takes place. The court has to balance the factors listed above in the normal way that would occur in any type of sentencing hearing where the parties don’t agree on the final sentence.

This change in the law was discussed in the Illinois case of In re Derrico, 2014 IL 114463 (08/04/2014).

http://illinoiscaselaw.com/court-supervision-in-juvenile-sentencing/ That case also discusses, some funny business going on in the Court.

Apparently, the judge really didn’t like the old rule and maybe had issued a term of supervision in a case even though the court knew, that at the time, it could not legally be done. While the case was on appeal, the law changed.

The appellate still sent the case back the trial court to make sure the judge follows the new law as it is written.

A police interrogation in murder case is not recorded in Podcast Episode 021 of the Criminal Nuggets podcast. So what happens in Illinois when the video recorder breaks down and the interrogation is not recorded?

http://illinoiscaselaw.com/police-interrogation-in-murder-case/

This is exactly what happened in People v. Green.

In that case, the police find a women violently beat to death in her home. Her family immediately tells the police that her boyfriend is violent towards her. In fact, he had recently sent her a threatening text message.

Guess who the police want to talk to? After some cat and mouse stuff, the police eventually find Defendant in a van driving quickly away from the police. Defendant still has blood on him. Guess, who gets a ride to the police station for some questions?

By all accounts, the recording equipment simply malfunctions. The interrogation is not recorded. Defendant, of course, makes some incriminating statements.

The applicable law here falls under the Illinois Compiled Statutes Code of Criminal Procedure section 725 ILCS 5/ 103-2.1(b). Surprisingly, the code does not use the language we would expect. One would expect to find the language “shall be” somewhere in a “requirement” section of law.

That’s not how this law is written up. Here is exactly what the code says:

“An oral, written, or sign language statement of an accused made as a result of a custodial interrogation conducted at a police station or other place of detention shall be presumed to be inadmissible as evidence against the accused in any criminal proceeding brought under [listed] Section ...unless (1) an electronic recording is made of the custodial interrogation; and (2) the recording is substantially accurate and not intentionally altered.”

725 ILCS 5/ 103-2.1(b). 

The law simply sets up a presumption of inadmissibility in all cases involving an interrogation of a murder suspect that is done without a recording. This presumption is slowly being broadened to include other listed charges.

This is not necessarily an outright ban of the interrogation as evidence.

The code further states that:

“The presumption of inadmissibility of a statement made by a suspect at a custodial interrogation at a police station or other place of detention may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.”

725 ILCS 5/ 103-2.1(f). 

So when a murder interrogation is not recorded, there is a presumption of inadmissibility as evidence  of that statement.

However, if the prosecution can establish that the statements made in the interrogation were still voluntary then the statements can be admitted in evidence despite the fact that they were not recorded.

The good news here, is that we are all familiar with the standard for admitting an unrecorded murder interrogation.

This is the ordinary voluntariness standard that we litigate anytime the defense files a motion to exclude a confession procured by coeression. That is a common motion.

The motion has the effect of the shifting the burden of proof that the statement was voluntarily given over to the state.

We all know all the case law dealing with voluntarily given statements. Nothing new here.

"[T]he test for voluntariness of a statement is whether the defendant made the statement freely, voluntarily, and without compulsion or inducement of any sort, or whether the defendant’s will was overcome at the time he or she confessed." People v. Gilliam, 172 Ill. 2d 484, 500 (1996).

We all have cases listing some of the appropriate factors:

• age
• education
• intelligence
• mental capacity
• physical condition at the time
• drugged
• the legality
• duration and time frame
• advised of rights
• physical abuse
• mental abuse
• threats
• promises
• denial of family
• denial of attorney

In the case of an unrecorded interrogation, the court will also very carefully look at the reason that the interrogation was not recorded. Intentional violations of the requirement will be treated more harshly. 

The prosecution was able to overcome the presumption of inadmissibility against this defendant.

Hey, since the requirement of recorded interrogations is slowly being broadened to include other crimes such...

• Predatory criminal sexual assault of a child
• Aggravated arson
• Aggravated Kidnapping
• Aggravated Hijacking
• Home Invasion
• Aggravated Criminal Sexual Assault
• Armed Robbery
• Aggravated Battery

...isn't it time to broaden this rule to all felonies?

Digital data storage and video recording equipment are at all time lows in terms of cost and ease of using. Aggravated battery is in the list of crimes we must record! Why don’t we just expand the rule to all  felonies?

What is reasonable doubt? In Podcast Episode 020 of the Criminal Nuggets Podcast, Evan Bruno lays out great insight gained from serving as a jury foreman. Reasonable doubt is finally demystified. Evan is an attorney who blogs about the law at EvanBruno.com and is a regular contributor to the Chicago Daily Law Bullitin.

http://illinoiscaselaw.com/what-is-reasonable-doubt/

Evan had the chance to see, first hand, how juries wrestle with the legal standard of finding a defendant guilty beyond a reasonable doubt. He was right there in the deliberation room when they began to ask out loud: What is reasonable doubt?

You see, juries and lawyers are treating this term like a highly special term of art. In the deliberation that Bruno participated in, a jury member actually asked -

How much is a reasonable doubt?

From the start, it appears the jury was thinking of this in terms of a "level" or "percentage".

You have to listen to Podcast Episode 020 (black bar up there) to see how Evan answered the question.

Feel Free to retweet these great Criminal Nuggets mined by Evan -

-- “Last thing a court should ever do is throw more adjectives at the jury.”

-- “... it’s just reassuring the jury that they are over thinking the question.”

-- “If you get a question...you know the jury has some doubt.”

This is great insight into how a jury may actually be thinking of reasonable doubt.

I have expressed a certain level of frustration. The appellate courts love telling us that we gave a “wrong” definition of reasonable doubt to a jury. Yet, the courts are slow in helping us formulate an exact response to that eventual jury question.

After listening to this podcast, you’ll have a much better perspective on the task at hand. And you’ll come to realize there is nothing magical or mysterious happening here.

The faster you, as an attorney, come to that realization the easier it is going to be for you to guide your jury into a similar understanding. We know juries, inevitably, are going to ask for a definition of reasonable doubt. We know that we must be very careful with the precise manner in which we answer their question. Reversal in these situations is always a distinct possibility.

I took the liberty to transcribe one way, discussed by Evan, to answer that question. I also included the "pregnant" answers that have been allowed in federal juries. You can download this reasonable doubt definition cheat sheet by clicking HERE.

The Illinois Supreme Court is going to address this issue of correct and incorrect ways to define reasonable doubt for a jury.

The most recent appellate decision comes to us in People v. Thomas.  I have also discussed the topic in Podcast Episode 010 of the Criminal Nuggets Podcast.

We are now ready for whatever decision the court throws down at us.

In our chat, Evan quickly pointed out there is no “one size fits all” response to a jury question on reasonable doubt. The exact answer always depends on exactly what the jury is asking, how they are asking it, and all the other circumstances that illuminate their thinking.

However, it is always a good idea to be armed with some arrows in your arsenal. Your judgment, and the circumstances will dictate which arrows or definitions you actually use in a particular trial.

Be ready, the next time your jury asks the question:

What is reasonable doubt?

I took the liberty to create PDF file available for you to download. This PDF contains a working definition that Evan thinks could work best the next time a jury asks for a definition of reasonable doubt. Other options and alternatives are included. Remember, your exact response to a jury question will differ for every jury and every question.

By providing your email address you can download this reasonable doubt definition cheat sheet I created especially for you. Just click the image below -
 

In trying to defeat ineffective assistance of counsel claim, am I teaching attorneys how to get away with being ineffective? Of course not.

http://illinoiscaselaw.com/defeat-ineffective-assistance-of-counsel-claim-2/

It is in a defendant’s best interest that all the parties involved know and apply and the law if and when that defendant is going to raise a claim of ineffectiveness. On the other hand, knowing the law also prevents a meritless claim from unnecessarily advancing.

People v. Boose, 2014 IL App (2d) 130810 (09/26/2014), involves a case with what appeared to be a meritless complaint of ineffectiveness made by the defendant. None the less, the case was remanded back to the trial level because the rules were not followed.

Let’s Compare this case to what we talked about in the last post, "Defeat Ineffective Assistance of Counsel Claim From the Get-Go".

Was Defendant deprived of a fair preliminary inquiry into his pro se claims of ineffective assistance of trial counsel because the parties ganged up on him rendering the hearing adversarial?

Defendant was found guilty of violation of order of protection. At the sentencing hearing, defendant filed his own pro se motion to reduce sentence and claimed that trial counsel did not adequately represent him.

At a later hearing, defendant told the judge that defense counsel

(1) failed to submit certain relevant evidence, such as a “CD,” which both the State and defense counsel knew could have exonerated defendant, and an irate phone message from Davis, which would have shown that she wanted her child support payment;
(2) failed to subpoena certain witnesses on his behalf, who would have corroborated defendant’s claim that Davis had called him;
(3) failed to argue that the State did not meet its burden of proving that defendant inflicted bodily harm; 
(4) was unprofessional, in that she verbally attacked the State when the State mentioned that defendant’s children did not like him; 
(5) failed to challenge certain potential jurors during jury selection; 
(6) failed to move to dismiss on speedy-trial grounds; 
(7) failed to enforce a stay that had been granted to defendant; 
(8) failed to inform the court of “vindictiveness by the State”; and
(9) tampered with the order of protection.

The trial court then went down defendant’s list. At times seeking information from Defendant, the state and defense counsel.

The trial court denied defendant’s claims, stating:

“All the points were addressed. I did not find a scintilla of evidence that would 
support your claim of ineffective assistance on behalf of [defense counsel], who was a very seasoned defense attorney, gave you good representation; and frankly, [defendant], I can’t believe anything you are saying. They disproved you. The record disproves you. Nice try. That is all I can tell you.”

¶ 23.

When a defendant brings a pro se post trial claim that trial counsel was ineffective, the trial 
court must inquire adequately into the claim and, under certain circumstances, must appoint new counsel to argue the claim. People v. Krankel, 102 Ill. 2d 181 (1984).

The trial court may conduct a preliminary examination by:

(1) questioning trial counsel about the facts and circumstances surrounding the defendant’s allegations;
(2) requesting more specific information from the defendant; or
(3) relying on its own knowledge of counsel’s performance at trial and the insufficiency of the defendant’s allegations on their face. Moore, 207 Ill. 2d at 78-79; Fields, 2013 IL App (2d) 120945, ¶ 39.

If, after a preliminary investigation into the allegations, the court concludes that the defendant’s claim lacks merit or pertains only to matters of trial strategy, the court may deny the claim. Moore, 207 Ill. 2d at 77-78; Fields, 2013 IL App (2d) 120945, ¶ 38. If the defendant’s allegations show possible neglect of the case, the court should appoint new counsel to argue the defendant’s claim. Moore, 207 Ill. 2d at 78; People v. Fields, 2013 IL App (2d) 2014 IL App (2d) 120945, ¶ 38.

The court acknowledged the danger when the States Attorney’s involvement is more than de minimis:

“Although a trial court’s method of inquiry at the Krankel hearing is somewhat 
flexible (by virtue of its ability to ask questions of the defendant, the defendant’s counsel, etc.), and we can envision a situation where the State may be asked to offer concrete and easily verifiable facts at the hearing, no case law suggests that the State should be an active participant during the preliminary inquiry. In fact, typically, virtually no opportunity for State participation is offered during the preliminary inquiry. [Citations.] If the State’s participation during the initial investigation into a defendant’s pro se allegations is anything more than de minimis, there is a risk that the preliminary inquiry will be turned into an adversarial proceeding, with both the State and trial counsel opposing the defendant. That is exactly what occurred here.” (Emphasis omitted.) Id. ¶ 40.

The prosecutor and defense counsel both got a little too heated and argumentative in their responses. The biggest error was in losing their cool.

This case was remanded for another preliminary inquiry before a different judge. Even though, these claims may have all been meritless it was problematic that the State was given such an expanded role in this initial fact finding phase.

At times, the State and defense counsel actually did actively argue against Defendant’s claims. Thus, they in fact gained upon him.

Defendant effectively had to argue against both defense counsel and the State. Thus, the proceeding changed from one contemplated by Krankel and its progeny to an adversarial hearing at which defendant was required, to represent himself and argue the merits of each of his claims. See People v. Finley, 63 Ill. App. 3d 95, 103 (1978) (post trial motions constitute a critical stage of the prosecution, for which defendant is entitled to representation).

This will not deemed error harmless.

This one needs to go back to the trial court for a new initial hearing. Parties did not defeat ineffective assistance of counsel claim.

Defeat ineffective assistance of counsel claim from the get-go. In Podcast Episode 018, I discuss how to prevent a claim of ineffective assistance from blowing up into something much bigger than it actually is.

http://illinoiscaselaw.com/defeat-ineffective-assistance-of-counsel-claim/

People v. Flemming, 2014 IL App (1st) 111925 (08/15/2014), provides valuable insight into this topic.

It is only a matter of time before you give your heart, soul and your time to an ungrateful client. It happens. It just does. You know exactly how it comes up. It is either at the sentencing hearing or sometime after client doesn’t get something he wants. That is when you get ratted out to the judge as being ineffective.

Defendant was charged with murder and second degree murder.

This was a drug fueled stabbing, in part because, the victim was caught in the bathroom with Defendant’s girlfriend.  Defendant testified he was only trying to get his girlfriend out the apartment when he was attacked by the victim and his friend.

Jury did not quite go along with his version of events and convicted him of murder.

At the sentencing hearing Defendant made a pro se motion, and  claimed that defense
counsel was ineffective. His claims were that:

The court then asked the prosecutor to cross examine defense counsel on these issues. After the defense attorney answered the questions, the court concluded that defense counsel did discuss the number of wounds with Defendant and found it was trial strategy to not get into the victim’s  background.

The legal question the appellate court was considering was whether or not the prosecutor’s questioning of the defense attorney turned this situation into a full blown adversarial hearing leaving Defendant without counsel?

Pro se claims of this sort are also called Krankel motions or a Krankel statement. A Krankel hearing generally describes the procedure a judge takes after defendant raises his pro se claim of ineffective assistance. See People v. Krankel, 102 Ill.2d 181, 464 N.E.2d 1045 (1984).

After an initial claim of ineffective of counsel is raised, the trial court should first examine the factual matters underlying the defendant's claim. The court's first assignment is to determine whether new counsel should be appointed. See People v. Moore, 207 Ill. 2d 68, 78(2003).

In considering this initial inquiry, "[t]he operative concern for the reviewing court is whether the trial court conducted an adequate inquiry into the defendant's pro se allegations of ineffective assistance of counsel." People v. Moore, 207 Ill. 2d 68, 78(2003).

If the court determines that the claim lacks merit or pertains only to matters of trial strategy, then it need not appoint new counsel and may deny the pro se motion. Id. at 78. If, however, the court finds that the allegations show possible neglect of the case, the case then proceeds to the second step of a Krankel hearing, an adversarial proceeding where new counsel must be appointed to represent the defendant on his pro se claim of ineffective assistance. Id. at 78.

So before an actual adversarial hearing is conducted, where Defendant is definitely represented by new counsel, the court first determines if there is any merit to defendant’s claims of neglect by trial counsel.

The judge must gather the facts in order to decide if the Defendant’s claims should be dismissed outright for one of two reasons:

If the judge has decided that the Defendant’s claims won’t be dismissed outright, then the court must appoint new counsel and carry the matter over for the full blown adversarial hearing.

There is no set format for how an initial inquiry into a defendant's pro se allegations of ineffective assistance of counsel should be conducted. During an initial inquiry:

"[S]ome interchange between the trial court and trial counsel regarding the facts and circumstances surrounding the allegedly ineffective representation is permissible and usually necessary in assessing what further action, if any, is warranted on a defendant's claim. Trial counsel may simply answer questions and explain the facts and circumstances surrounding the defendant's allegations. [Citations.] A brief discussion between the trial court and the defendant may be sufficient. [Citations.] Also, the trial court can base its evaluation of the defendant's pro se allegations of ineffective assistance on its knowledge of defense counsel's performance at trial and the insufficiency of the defendant's allegations on their face."

Moore, 207 Ill. 2d at 78-79.

In other words, a trial court's method of inquiry at a Krankel hearing is somewhat flexible. People v. Fields, 2013 IL App (2d) 120945, ¶ 40.

"If the State's participation during the initial investigation into a defendant's pro se allegations is anything more than de minimis, there is a risk that the preliminary inquiry will be turned into an adversarial proceeding, with both the State and trial counsel opposing the defendant." Id. ¶ 40.

No, there was not any error in this case.

The State's participation here was de minimis. All it did was ask defense counsel a few specific questions, at the court's direction and without editorializing or argument. It blandly stated the questions and did not advocate against defendant's position in any way. There was no adversarial edge to the proceeding. It was a properly conducted and sufficient initial inquiry into defendant's pro se claims.

Accordingly, the court did not err in failing to appoint new counsel for defendant's claim of ineffective assistance of counsel.

The important things to remember after a Defendant has ratted you out to the judge is that the judge must gather the facts so that she can -

That is all that happens initially, you can help ensure that the judge is going to make the right call by making sure that the judge has all the relevant information needed to make this decision.

And your job, as defense counsel, is to make sure that the prosecution keeps their mouth shut, for the most part. Was that to harsh? Your job is to make sure that the prosecution maintains a de minimis participation level.

I know we give up valuable family time when trial time comes around. Don’t let a Defendant unhappy with the trial results let things get messy.