People v. Burnett, 2015 IL App (1st) 133610 (December 2010). Episode 123 (Duration 8:45)

Defendant was not denied his constitutional right to confrontation when the domestic violence victim testified she did not remember the incident.

The Gist

In this trial for violation of order of protection the trial court found the victim unavailable pursuant to. 725 ILCS 5/115-10.2a(a). This statute only applies if no other hearsay exception applies

However, the same victim with the same testimony was declared “available” for confrontation purposes.

Right To Confront Witnesses

Crawford v. Washington, 541 U.S. 36, 68 (2004) says a testimonial out-of-court statement is admissible under the sixth amendment only if the witness is available for cross-examination at trial or the defendant had a prior opportunity to cross.

Here, the statement to the police was properly admitted only if the witness can be said to be both unavailablefor purposes of this statutory hearsay exception, but available for purposes of the sixth amendment right to confrontation.

Dichotomy of Results

The trial court found that the victim was, in fact, unavailable due both “to a lack of memory” (725 ILCS 5/115-10.2a(c)(3)) and a refusal “to testify concerning the subject matter” of her statement “despite an order of the court to do so.” 725 ILCS 5/115-10.2a(2).

Analysis

The question was whether the victim was “present at trial to defend or explain” her prior accusations of harassment.

This was not a case where the victim got up there and said noting.

In fact, she did answer questions at trial about Defendant…

• Telephoning
• Following
• And Keeping Her Under Surveillance

She also testified they had been in a relationship for five years; that she had four children; that defendant was the biological father of her two youngest sons; and that he also acted as a father to  her other two children.

She even acknowledged that she took out the OP, and that Defendant texted her the day of the arrest.

Conclusion

This victim continued to assert a refusal to testify to some questions, thus satisfying the court that the requirements of this particular hearsay exception were met.

Yet , she still answered both preliminary questions, as well as a number of questions about the offense Defendant was charged with.

Thus, the reviewing court said this particular statutory exception, as applied to defendant, did not violate his sixth amendment right to confrontation.

Things To Ponder

• Does it make sense she was unavailable for the state but available constitutionally?
• Did she really testify in any meaningful way?
• Is there a statutory/constitutional basis for this split in interpreting what available means?
• What should be the rule?