please the court counsel my name is nancy vincent and i represent the opponent richard kitch in this matter this case is about crawford versus washington and the effect that case would have on this case and most other cases where section one fifteen ten is called into play and one of those effects is the right to test the state's case through the crucible of cross examination as contemplated by crawford and how that right is to be applied in each of these cases particularly we're talking about testimonial hearsay which is of course the focus of crawford crawford says that testimonial hearsay is inadmissible unless the declared was available to testify and there was a prior opportunity for cross examination and the question should be answered in this case in particular is what exactly it means to be a vailable to testify the fourth district position in this case and in sharp two and  bryant is that a witness is available if that witness is presented to the court regardless of what they say so long as a person is sitting in the witness chair and that suffices regardless of how much or how little is the listed from that witness c f which was decided not long ago the resolution of that case was under strict no grounds but this court i believe did have a concern where the state had presented a complaining witness did not ask any substantive questions about the elements and then submit asserted that that witness was available for cross examination for purposes of the case  and i do believe that is concern and that is actually the concern that section one fifteen ten was designed to address where you have a witness who for whatever reason cannot or will not testify despite being placed on the stand here however and that is fairly dancer the questions i'm sorry i cannot use failing to answer the questions for purposes of the availability of cross examination i think the effect is the same the result witness is not appealable well the second district in people vilar and basically held that where you have a child witness who is on the stand but is unable or unwilling for whatever reason to answer questions that witness scope of director cross or whatever and i think the purpose the reason for that was the context in which this occurred and here justice freiman you make a good point these children were there they were they were testifying answering questions at least to the best of their ability there was no word calcine trends that you can detect from this record on the part of these children for that reason there was no reason for the state not to ask them questions designed to elicit the details of of the incidents in question because the state did not raise these questions it was the fed's decision as it were because they could not leave which i don't know if you can make that assumption from this particular record it's difficult to say there's no discussion in the record and no that's one possible reason but strategically speaking it's very difficult to say it didn't spread defense counsel ask questions yes she did and her questions were designed to to deal with what was apparently the defense which was these children didn't like mr kids and therefore these  applies to the prosecutor and clearly the jury if you're only requiring now you're to discussing what your client your did you know the defendant is arguing now what other attorneys did or didn't do no and  in terms of trying to answer your question what it is that the strategy that the state here employed was to place the hearsay on the record first then present its witnesses and the strategy of course being there that if it's a bit safer to use the hearsay because you know the elements are there rather than take a risk with children or because the information was already there for whatever reason the state may not chosen to ask the children a lot of the substance of questions so in terms of strategy there you can't just place it on defense counsel i don't believe and in terms of before you can assign a strategy to defense the strategy of the prosecutor in terms of his availability this witness takes the stand the prosecutor asks no germane questions about the event tenders the witness for cross examination the that defense then he asks all the questions that can possibly be asked by the facts of the case hasn't he hasn't the witness been available for cross examination if in that in that instance the witness has answered those questions i think they are very can be made to the to justice freeman's earlier question isn't that what happened here no because in this first instance the state did not elicit details of at least some of the counts but how was the state's failure affect the issue of whether the children appeared for purposes of the confrontation clause because in order to have the right for confrontation the information has to be there to begin with the witness was there yes but whose job is it to elicit that information and i think mel and as d a is gives you the answer there that the proponent of the evidence is the one whose responsibility not in those strict terms but mellon does d s stands for the proposition and mel and as he is did reject an argument that if the defense wanted that information in they could have done it themselves but the court said in maryland as dia says that's not the point the point is that you can't use hearsay to us to make your case for you when you have and otherwise available witness how many questions would be necessary to satisfy your congregation i don't know if you can give it a number i do think that you have to at least elicit the information that you want out before you can rely on hearsay to do it for you it would have been at least in the context of this case a fairly simple proposition to ask these children because i think had they been asked the question they would have attempted to answer to the best of their ability there's nothing in this record that suggests that they would have shut down at some point if the state asked them about it and the answer th under oath under a lot of analogies and i believe under california being green the answer might process possibly be yes i don't know that i can say that for sure because it's difficult within that cont theoretically speaking in california the green united states v owens cases like that would seem to indicate that that if the child had been asked the question and they said they didn't remember that the prior statements could have been used in that in that condition however that's not the situation you have here the situation you have here is we don't know if these children don't remember or not because nobody asked them at least about the substance of some of these counts there was nothing to prevent the difference from asking  physically no but again i whose responsibility is it you're placing defense counsel in a terrible position when it was really the state's job to do it to begin with how do you address the  come in constitutionally without regard to their reliability as crawford and i believe the appellate court has taken the position under one fifteen ten that number greater protections afforded to the bars raised by unconstitutional argument in the public words and here you have even greater protections of the state whether it's greater or lesser or the same is debatable i think in some cases miles might be a good example where the statements were kept out based upon the fact that the court felt they were unreliable the problem is that whether or not it's greater or lesser protection is really beside the point when you're talking about testimonial statements in crawford the pen fact of the matter is reliability has no place when you're analyzing testimonial statements that the courts in the first instance have no place anymore using section b one of section one fifteen ten so in terms of the fourth district's statements and i think it's an read where they say you can either use it or not that's not an exact quote but i don't think that's true section one fifteen ten second subsection b one is eliminated by virtue of crawford so i don't know if you can necessarily assume that it's more protection and especially since in crawford they talk about the fact that a lot of the elements that are used for indicia reliability that so called invalid or should reliability is valid some circumstances would it be valid in some circumstances i'm sure if you us but in so if you're using non testimonial statements i believe it wouldn't crawford only applies to testimonial statements so if if the statements that you're analyzing are not testimonial i'm not sure that be one would have any effect on it whatsoever the problem here however is that we're talking about testimonial statements and section subsection b one simply has no place in the analysis of the admissibility of testimonial statements it just it cannot be used anymore proffered made that incredibly clear and to finish my my earlier statement a lot of the elements of industry of reliability the court in crawford critici d because that is exactly what you're not supposed to be doing when you're analyzing these statements to the addition of reliability are exactly what cross examination is supposed to root out in cross examination by the defense counsel typically yes i would say i can't think off the top of my head of how it would be reversed i guess on you know in some others instance i can't think of anything off the top of my head typically that's how would be addressed yet this defense counsel chose not to cross for whatever reason and i you know under that in the context of this record  i can't say that she made a deliberate decision not to cross based upon a fear of getting information out or the belief and the state's belief as well that that information had already come in pursuant to hearsay you know  for whatever reason strategy or otherwise and that's not quite the same hours of his being denied the right to confront the victim there wasn't a denier right to confront man well that would be the fourth district's position and our position would be in terms of the denial of their break to confrontation concerning the the information that the state did elicit from these witnesses confrontation was available in terms of the information that was not a listed from these witnesses and instead the state chose to rely on hearsay our position is that confrontation was not provided because how is did the defense how do we how do we know that well we don't records of the defense was given the opportunity for cross examination during which is clear they could have asked questions that would elicit the material we're talking about but mellon does dia stands for the proposition that it's really the state the proponent of the evidence which would be the state in this position and again mel and as he has rejected an argument like what your honor is suggesting which is the defense can do it if they want to sure they can but in terms of a confrontation issue whose responsibility is it to do it in the first place you can't really it you're placing defense counsel in a terrible position of foregoing one right or the other and in a criminal context that's not rejects that proposition  and here in this case the controversy really surrounds some of the counts because they are unclear at least as elicited from from the witnesses themselves in terms of context and time and the way the state chose to charge these cases is in terms of context and time so while they're not in context in time is not an element of the offense but in order to get the jury to be able to differentiate between the counts that information was crucial and also in terms of the bolstering aspect of getting these statements out in terms of credibility of witnesses and that sort of thing those statements were were necessary for the state in order to get the details out so the jury could differentiate between them so from that perspective if the only source of a lot of that information is the testimonial hearsay that's the problem you've got if you eliminate that then what if you got left you've got some vague testimony and it's unclear particularly from the girl which count she's talking about in any form forty five to six and that really was the problem there and confrontative why having the state get that information out on direct from her was so important and as we talked about earlier so far this problem has been and analyzed in two basic scenarios a witness that simply refuses to talk for whatever reason and a witness that asserts memory loss and most of the cases that have analyzed this say that  the latter is held to be available the witness that asserts memory loss and that would be california the green and united states he owns and cases of that nature because that's a witness who's there they're they've just asserted memory loss there they're defending her explaining to the best of their ability as opposed to a witness who is just not talking at all you can't defend or explain a statement that where the witness isn't even talking at all and our position would be that a witness who isn't even asked the question has more in common with the witness that isn't talking because the result is the same the information isn't there from which cross examination and the testing of the state if that information is to be heard by the jury then conquered and mel and as d is demanded it comes from the declarant in the first instance and subjected to the crucible of cross examination before the verdict can be had  i'd like to say a couple of words about the constitutionality of the statute i understand it in brady age in this court if we get to the narrowest issue possible but in terms of of the constitutionality of the statute the the very purpose of the statute is for bolstering which you up a complete this remark and then i will reserve a couple remarks that i have for my third argument on rebuttal but the problem with section one fifteen ten is it please the court counsel i am a system attorney general aaron o'connell on behalf of the people of the state of illinois defendant has raised a very interesting and engaging issue in this case defendant has presented the question of how much does the state need to put forward on direct examination when they bring forth a child victim of sexual abuse and at the same time admit hearsay statements the interesting issue but it's simply not presented on the facts of this case the people here elicited lots of testimony from both victims as to each of the events that were charged in the counts counsel has conceded that counts one through three are not really a element that people need to prove for each of these counts that is that an act of sexual penetration occurred people do not need to prove the exact date that this occurred the people do need to provide testimony that distinguishes between each of these acts the victim here testified that adam minter mom if we if we look at her testimony based on the hearsay testimony starting in june two thousand and two defendant began having bad tional intercourse with her twice per month until she moved out in march of two thousand and three he take that testimony clearly that would support dozens of convictions for acts of penetration perpetrated by the defendant here the people charged and defender was convicted of only three the victim's testimony given that this happened twice per month was more than sufficient to establish that the first act occurred in approximately june two thousand and two another act occurred between june two thousand and two and march two thousand and three and the final act occurred near it the date of move out in march of two thousand and three defendant has never really been clear about what more the victim should be expected to testify to to establish the elements of these offenses but there is little more that the victim could have testified to given the victim's direct testimony everything was there for a defendant to cross examine her there was no question in this case as to going beyond the scope of her direct testimony in order to cross examine her on these various counts defendant has as as there's no dispute that this is an issue in terms of how much needs to be a listed on direct exam that has divided the courts of appeals here is the case of people versus learn that defendant has upon where the second district held that basically the victim only needs to be present and needs to respond to questions no i'm sorry people versus one is the case that held that the victim needs to testify to all the events and then be available to be cross examined as to all those events learn is that layer in that respect and that's all of the other cases that hold that the that the child victim need only be present to be cross examined so people versus learn has created a conflict within the second district with the case of people versus garcia cordoba with the first district in people versus meijer fli and with the fourth district in the cases of people the people the shark is the primary case people be science just lawyers stand exactly what do you are you agreeing with the defendant that there must exhibit haven't taken a pin cushion in this case as to exactly how much needs to be a listed on direct examination simply because of the level of detail that was provided on direct examination the closer question of what would that be sufficient if the people never elicited any testimony whatsoever as to acts of penetration that would present a closer question and it there is a people versus learn certainly presents as is closer to the line in that regard the people put the victim in that case on the stand and she became due to emotional reasons on the will to answer certain questions regarding the acts that were charged and then the second district held that that was insufficient that she needed to really specifically say defendant committed this act of penetration the people have filed appeal in that case which is now pending before the court this is case number one and six five three that case would provide a much better vehicle for addressing these kind of finer finer lines of how much testimony is enough with that general proposition in fact i don't it's kind of a theoretical matter in that there is certainly within the people's interest to have the child testify to the events and the purpose of the statute w corroborate the child's own testimony with these other statements that the child gave to other individuals so i'm not that might present a different question if the people were to do that however that would seem to be sort of a strange factual scenario where the people would choose not to present any testimony whatsoever in most cases where this issue has arisen the people have asked the questions and the child victim has either testified i don't remember or has just become kind of mute and refused to go forward because of the trauma of testifying in the courtroom  very sensitive matters of sexual abuse those are the types of questions that have come before the appellate court so i don't know i wouldn't be comfortable taking the position certainly that simply putting the child on the stand and having her give her name would be sufficient for purposes of having her testify but certainly that's an issue not presented here where the people did ask all of the necessary questions of the child victims and of course the court historically has not issued advisory opinions and given the facts of the case deciding where that line should be drawn would be in this case simply theoretical because here we fall so far on the other side of the line of this is clearly proper that that question just doesn't present itself in the facts of the case testimony whether it's testimonial or non testimonial be admitted defendant is arguing that by requiring reliability the statute violates his rights under the confrontation clause however defendant is confusing the separate questions of is testimony admissible under a hearsay exception versus is it a miss ball under the confrontation clause there's no question here that if if the statute said that a statement was admissible solely based on a judicial determination of reliability that would not necessarily comport with proffered which looks not to judicial determinations of reliability but solely at whether there has been a prior or there is a present opportunity to cross examine however there is nothing in crawford that says that a state cannot as a pure evidentiary matter require that testimony be reliable before it be admitted and i would think that this issue of reliability would be something that would benefit defendants in that it provides a low level of protection over and above the confrontation clause so this argument is it confuses the distinction between what is the statutory requirement and what is the confrontation requirement and those are two separate questions that must both be answered before any hearsay testimony is  for the same reason that the fact that the statute does not require that crawford's confrontation requirement be met in every case does not render the statute facially unconstitutional it just means that there may be a circumstance where the statute might allow testimony that would violate the confrontation clause now hopefully the trial court and then carrying out the confrontation analysis would say even though this means statutory requirements it doesn't meet constitutional requirements therefore it cannot be admitted that scenario is not not presented on the facts of this case the argument that the statute is facially unconstitutional cannot prevail simply on this theoretical issue of what might arise in the in a admitting a business record as to what the result of a forensic analysis the state rather needed to call the witness to testify and be subject to confrontation melendez dhea as was plainly status right here because the state put both of the children on the stand so therefore that case really has no direct applicability to the facts here if the court has no further questions we would rest on our brief in terms of the in just a couple of things in response to the state's argument there was a specific incident that the state did not ask k j k the girl about and that was the incident that was recounted in people's it's exhibit ten which was the second interview that she went underwent with the share that's recounted in people's exhibit number ten they never asked her about that in the first instance first the jury heard about that particular incident and the details of it was when the sheriff testified so from that perspective i don't believe that an argument can be made that she was confronted on the substance of those statements because the state never asked her about them  and in reference to that the argument that it confuses the hearsay exception with a confrontation clause argument actually that's exactly right section one fifteen ten requires you to confuse hearsay exception with confrontation clause and now it says because particularly where you're dealing with a testimonial statement the statute still requires you to do the indicia for liability for purposes of hearsay stay here say exception and that clearly has gone now to crawford has been the last since two thousand and four just a couple of words about the state's attorney speak i would point out that the statute requiring that section four dash two thousand and two refer specifically to states attorneys it's in the county code and it says one prosecuted or defended by him gender issues aside it's clear that the statute  referring to the state's attorney i would also point out that that statute was passed in one nine hundred ninety the statute establishing the state's attorneys appellate prosecutor however was passed in one thousand nine hundred seventy so clearly legislature knew at the time that states attorneys public prosecutor existed in white but they existed for if they intended to include these states attorney a public prosecutor in the fifty dollars fee they would have said so and would have made it clear in the statute and i know in williams one of the the concerns was the funding therefore and the fact that states attorneys pay into a pool of money that assists the state's attorneys a prosecutor in handling these appeals doesn't invalidate the plain language of the statute the plain language says what it says and it says state's attorney and if the legislature meant to include the state's attorneys the prosecutor they would have done so and if that's what they intend to do then it's not up to this court to rewrite the stat this case to my knowledge the only role they would have played was to send the information to the state's attorneys appellate prosecutor in the fourth district i'm unaware of any contact  with you know i don't know specifically i would assume that it's done the same way it's done for the state of color defender which is that the information comes from either a public defender's office or in our case a lot of times it comes from the circuit clerk's office so i would minutes and they say a few words no hearing was held so they're not entitled to to the fee i mean you know just putting your name on a brief does that qualify for being prosecutor defended by you there aren't any cases that have talked about that nobody has really defined that term but if in logical terminology and the purpose of the statute is obviously to reimburse the states attorneys for their efforts and if they don't do anything other than pass along to another entity our position would be that no the year it's not being prosecuted or defended by the state's attorney it's being prosecutor defended by another entity entirely should be part of our state for purposes of their general operating revenue as i understand it this separate fund that's just to to handle these programs such as the costs involved in doing these appeals but that's not the only source of their funding so i don't necessarily think that you can make the statement first of all that you're you're reimbursing the county pursuant to this statute properly second of all it says state's attorney and once the state's attorney or the county's released those funds to the state's attorney prosecutor is that money really coming from the state's attorney at all it's coming from the county so who should we be reimbursing but the statutes very clear that you reimburse the state's attorney don't reimburse state's attorney had had a meaningful role in the appeal that may play into it however i did that would probably need to be on a case by case basis and more importantly that certainly didn't occur here there's no evidence other than a name on a brief that would suggest that the state's attorney did anything other than send the information to the state's attorney's