chief justice honored members of the court i am assistant state's attorney tom kelly of the cook county state's attorney's office on behalf of the people of the state of illinois in july of one nine hundred eighty three was arrested and charged with murder based on the shooting of a man named diego cisneros in a bar on the west side of chicago shortly after his arraignment defendant fled to mexico and remained a fugitive for twenty four years until he was finally arrested and brought to trial in two thousand and eight during defendant's absence from the jurisdiction leopoldo pena the bartender on duty the night of the one nine hundred eighty three shooting was deported rendering him unavailable as a witness that defendant's trial based on this the people sought to introduce pena's testimony from the pulmonary hearing the trial court allowed this and defendant was subsequently convicted of murder after his conviction defendant appealed arguing that the court abused its discretion by allowing the prior testimony because its admission violated his sixth amendment rights confrontation the appellate court reversed the defendant's conviction finding that the prior testimony constituted in admissible hearsay basing its decision on the longstanding finding that the testimony did not meet the longstanding illinois evidentiary exception which allows the admission of prior testimony but people now ask this court to reverse this holding by the appellate court because the record below clearly reflects but the motive and focus of the cross examination at the preliminary hearing was the same or similar to that which would have guided any cross examination at the that well that it's correct but the question that was asked was to test the witnesses ability to recall the events but because pena was the only eyewitness to the shooting and the only other person in the by that night the best way to show that he was an unreliable witness and thus the state did not have enough evidence to demonstrate that defendant was the person who committed the offense was to undermine pena's credibility as a witness and that's what the attempted to do at the it seems that his argument is where there is later discovery that would be a very good issue as to bias and here that pena was an illegal alien right is that is that true did they know that at the time the regular military here in the record doesn't indicate whether the people were aware of the fact the witness was an illegal alien at the time the plumbing or hearing but you do it don't you think the defendant should have an opportunity to cross examine someone who was an illegal alien who may reason or bias to curry favor because of the fact that they're illegal alien or do you  think are you saying that they went into a no cross examination is the bias that there really isn't a concern i'm saying that what this court has always said and what the united states supreme court has always said is that you look at the overall adequate opportunity that was provided and in this case there was an extensive cross examination that was undertaken at the corner hearing that explored issues of credibility on the abilities witness of the witnesses ability to recall events it was a detailed cross examination there was a point in the plumbing examination when the defense attorney asked a question about a possible relationship friendship between the victim father and the witness there was an objection the objection was sustained the defense attorney explained that he was attempting to ask this question because it was his of his opinion that it went to bias and the court allowed him to ask that question so when you look at the overall act opportunity it's clear that this court the women in the hearing court did not put any restrictions on this defense counsel and that the opportunity that was provided to him was more than sufficient to meet the adequate opportunity  that's required under that both the evidence or exception in the sixth amendment and i would say this too in people versus horton and in people versus ten and this court looked at this very issue the admission of women in a hearing testimony where a witness has become unavailable and these same arguments were made to this court intendant the defendant argued that he was unable to adequately confront the witness at the pulmonary hearing because he did not have the benefit of discovery and because of the more limited nature of appointment hearing and this court said while we recognize that these are valid concerns we find that the women are hearing does testimony well what this court said in people versus rice is that when you're looking at whether there was an adequate ineffective opportunity that what you should look at is not the motive and the focus of the cross examination at the original hearing was and the issue in rice rice concerned the admission of prior testimony from the co defendants the trial suppression hearing and the defendant was seeking to admit that testimony believing that it was exclude the choice for him the state objected and what this court said was the defendant the state did not have adequate opportunity at the original hearing to confront this witness because the motive and the focus of their examination at that hearing was too different from what it would be at a subsequent hearing and so in defining adequate in effect of this court said we look at the motive and focus at the original hearing and we compare it to the cross examination that would take place at a subsequent hearing and if the motive and focus is the same or similar there has been adequate in effect of opportunity i think that the recently adopted it when our rules of evidence also provide us guidance that explains that you look at the motive and the opportunity that was provided when we apply those to what occurred here as i  said there was extensive opportunity for cross examination other than the question that you brought up just stringin and the objection that was sustained there were no limitations placed on counsel at the hearing defense counsel did not indicate that there were other questions or other areas that he wished to explore and while he was an able to ask questions about paying his status as an illegal alien that was not because of an action by the court and more importantly neither this court nor the united states supreme court has ever said that the inability to question on one particular topic in and of itself denies an individual an adequate opportunity for confrontation where all other circumstances suggest that that adequate opportunity existed which is the case here but is all owing up on justice thomas is or should if defense counsel did not know that this was an area that  should want to or would want to get into because he could undermine the credibility of the witness doesn't say that he's not the focus is not the same maybe the motive is and in the hearing of course  examination with the benefit of discovery or the benefit of a didn't additional information certainly every defendant could find something that he would have liked to ask that if he had discovery he would've brought up at the initial hearing it's sort of to analogize it to football it's like playing monday morning quarterback if i would have known this would happen i would have done this differently but generally if you've got one eyewitness who testifies and that's the crux of the case and he is subject to bias or pressures that's certainly an important factor it's not just i would have done things differently knowing that it's a maybe i could have undermined the cases well it it it obviously is an area that he would have liked to ask questions about but the case that has come out from this court in terms of the question of confrontation and opportunity has always looked at the opportunity that was provided as a whole and has not looked at the question of adequate opportunity from the standpoint of would this have been a a better opportunity if he had this information a list which is your standard for america you see overall adequate opportunity to explore by a very that's what you're saying the standard and overall opportunity to explore but it's an it's an overall opportunity to confront the witness ok is far is the motive to lie it goes here i mean was there anything at the in the now engine disposal of the defendant at the time that would be equal to or greater  he was an illegal well i believe i believe there was information that he asked about at the hearing such as the fact that the victim in this case frequented the bar he was acquainted with the victim as opposed to the defendant there was the suggestion that there was an actual friendship between the victim's father and the bartender in this case certainly suggesting that the bartender would be inclined to want justice for the victim who was shot in his bar who you know while they may not have been friends they were at least acquaintances and those areas were the court did allow him to explore that on cross examination but i think that overall what this to this  defendant is asking this court to do is to judge opportunity based not on what occurred at the hearing which is what this court has always done but to judge it on what didn't occur at the hearing and if you look at the case of delaware versus funds from the united states supreme court it's analogous in that the defendant in that case claimed that he was denied an adequate opportunity to cross examine an expert witness because there was a line of questioning that he wanted to ask  this witness but the witness was unable to answer his questions he couldn't remember and the the defendant said because i can't get these answers to these questions which are vital to my defense i'm  adequate opportunity to confront this witness and what the court said was adequate and effective opportunity isn't an opportunity to cross examine on each and every everything to whatever extent you want to cross examine on it's a it's a fair opportunity to confront the witness and that's what was presented here and while it may have been better for him to be able to ask the questions that he was unable to ask what we're talking about here is the sixty and right to confrontation we're not talking about same an elementary hearing as a trial that all preliminary hearing testimony should always be admissible no that's not our position our position is that the question of adequate and effective opportunity for cross examination begins with looking at the motive and focus and once you've you've satisfied that portion of the test then as the worlds of evidence say event look at the opportunity that was provided so if there had been undue restrictions placed on this defendant at the original cross examination for instance if he would have attempted to ask additional question or is it your position that if there are no restrictions that luminary hearing testimony is always admissible in the absence of a witness where the parties are the same that's correct doesn't that create an incentive for the state not to get the witnesses to trial well i think that you difficult would mystifying why would you why would you bring them in you've got your testimony and maybe the state likes the way it came out there without knowledge that  well on availability of a valid finding of unavailable would be has always been a factor in the equation and i it still would be there would have to still be a finding by the court that the witness was actually unavailable and certainly if i think it's relevant only to the extent that it explains why the people had to proceed the way that they did why the witness was unavailable certainly if defendant had not followed the jurisdiction even if i witnessed was an illegal alien we could have attempted to put up to delay his deportation but in terms of directly addressing the issue of his opportunity for that was undertaken and this court clearly stated in people versus sutherland that those are distinct questions and that there is a difference between the opportunity that was provided and the effectiveness of the cross examination that was undertaken in this case appellate court's analysis and the public court's concerns that were expressed clearly went to effectiveness and we would also point out that the cases that the appellate court relied on here in order to support the idea that  the inability of defendant to ask about pena's status as an illegal alien only established that that testimony was relevant and they didn't address the question that's before this court and that is is the fact that defendant was unable to ask about pain is a legal status in and of itself and no to deny this defendant adequate opportunity those were about that question was not addressed in those cases and when you look at the overall opportunity that was provided in this as to that information and as to the statements the alleged prior inconsistent statements that the defendant was not aware of there was a lengthy discussion with the court and the court in inform the defendant i know that you were not able to ask him about these things at the primary hearing so here's what i'm going to do i'm going to let you ask these questions and bring this information out in your case in chief without laying a foundation  and while a defendant ultimately chose not to take the court up on that offer he was granted that opportunity and certainly that speaks to the question of whether he was prejudiced  if there are no other questions we would ask this court to reverse the holding of the appellate court in this case and reinstate defendant conviction thank you thank you also for the ampl slapped down by this court where reaches out for a constitutional issue and doesn't need to do so so it's holding was based on the only evidence law and under illinois evidence law sometimes to marry hearing testimony is invisible sometimes it is always violates the sixth amendment but that is our most extreme argument and i would say that it is just as extreme as the argument just advanced by the state which is that plume in our hearing testimony always comes in as had this was objected to and at first the trial court sustained that objection and then the attorney said it goes into biased judge and the trial court reversed himself and then allowed that question to be asked once the question was asked the witness asked to trial i won with a number of other questions but to return just to what i said in terms of what the state is arguing here they are arguing for a very significant change  r sad we have difficulty with the admission of gloom in our hearing testimony we're worried about it we're concerned about it we don't want to exclude it altogether but the reason it's coming in court in particular is this one it's a relatively minor witness and there are other witness who says testified the same thing to no one is pointing out and you're stretching on the cross examination read no one has told us in horten that there was something that came out in discovery which could have been asked to the point where hearing that was not a house so put these reasons we don't see any problem because no one is telling us what difference it would have made had you had better cross examination at the point where hearing all you're saying is you don't like going there hearings so we're rejecting that argument we're going case by case now see justice i believe asked what factors you would use in assessing what sort of opportunity first i want to make a distinction which i think is obscured by the state's theory but should be made clear by the new rule and should be made clear by common sense there's two separate questions one that is motor the second is opportunity you can't conflate them you can't mix them together into some mom mix mix up just in terms of i can have this motive for all the days long but i have no opportunity to you achieve it absolutely none zero motive means that's what i could do if i could do it opportunity means i have the tools to do it so these are two separate questions now the new rule and it should be noted that the new rules of evidence by their own terms do not change the laws only law of evidence except where that is specified and this rule is not one of those instances where it specifies a change so we have to assume that the new rule incorporates illinois case law thorton tenant and all the cases that that follow them in fact he can even incorporate in ohio versus robert survivability analysis just because ohio versus roberts no longer applies in the constitutional setting doesn't mean it can apply here so what are the factors that this court looked at and courts in general look at one is they look at the importance of the witness when he's just made us the first one courts have looked at is the nature of the proceeding in some proceedings particularly bond hearings and the brown case is a good example of this the courts have said we don't hear what the trial judge allows and that's what happened the brown case the court said go at it ask any question you  light counsel didn't ask any questions and then the court said you're playing chess ask your questions so then he went on for with an hour of questions the court said you know that's nice but this was a bond hearing it wasn't intended to be an evidentiary deposition to preserve testimony so just because the court tried to change into something else doesn't mean that it was a evidentiary deposition so there are certain proceedings which no matter how much opportunity there is the motive is not the same there are some proceedings like motions suppressed rippling there hearings where it might be it depends in the rice case one reason they what the court said and rice is important because it can't be constitutional case because it involves the admission of testimony defense is asking for permission of prior testimony and the state is saying we have just i never entered grounds to say of course having those six minor rights court says it was a motion to press  are you guys friends you know each other do you have a motive to testify in favor of the defendant and since they had no opportunity to do that even though we don't know the answers those questions would be the court said and right that testimony isn't coming in there is not first of all obviously counsel was interested in and question about bias and made some attempt to do so so if he had known about it one tenth of the reason why he wouldn't do it to the point about  was brought up on the motion for the trial which i did personally and there was no dispute on the part of the state no one the state can say at that point listen our records show that we knew he was in it we get help it legal alien from day one all that  so that is not in dispute now in terms of the factors one concern the core factors the court has considered in fact factors that the court below considered you look at the importance of the witness you look at the information available to the defense at that point and if their offense can't point to something that's come out later that was significant their offense loses and their fence was lost many of these cases just for that reason you look at the length and actual nature of the cross examination and here are i think the state is being unfair to the appellate court the point of looking at the actual cross examination is not a gr defense counsel's performance or not to say boy it was a good job or was a bad job or whatever no the point is we're the cross examination six trimix sense that you weigh that against what defense counsel now says i would have done had i had discovery and if what he did is like this and discoveries like that the testimony is coming in but where he did what he did is like this and discoveries like that one thing going to argument here is not that the court restricted his examinations just that he didn't have the tools available at the time he was asking questions absolutely and your position again just so that i'm clear in my mind is not that common area hearing testimony should be excluded but it should be done on a case by case basis depending upon the way the balancing that you just talked about absolutely before my first issue that is exactly the and the foundation to get into the basis for possible bias or prejudice or challenging the credibility of this witness the agree that's this was the status and then how does that factor into our analysis if at all as to whether or not he has an adequate opportunity to challenge the credibility of the witness well to answer for to answer the first factual question first what the trial court offered wise an the next question it which i think is maybe is partially a sick memory question but partially also a player here in question is this is it the same is confronting a witness the same if you have paper impeachment as opposed to saying the witness well didn't you tell the police x y and z because i think you all know from your experience all of you i think probably without exception having once  trial judges that often when you ask a question or actually confront a witness with their status as an illegal alien or a prior inconsistent statement you don't get a mere yes or no you often get a change in the  testimony often when i ask that question the witness doesn't sit well but gives an explanation changes the testimony modifies the testimony confrontation more means more than than paper impeachment i think confrontation means in its full force that you're able to put these things sort of literally in the witnesses face see the reaction and see if it makes a change now that brings up the difference between plymouth area hearings and discovery that wasn't cover wasn't known at the time test nationally it can't be cured no that's not true it's not it's not true well first of all if something comes up and in discovery that did it wasn't known at the time then the analysis depends upon how important it is and how much difference it would make in the case  e cases involve things where the it was pointed out there was minor impeachment or there was something that was not very significant the courts have to make an assessment of how important thi that come up in discovery are and how you make the assessment is one how important holiday to what was the cross examination actually done three what is the porton some of the witness in terms of the overall case and you use all those things and making the judgment as to whether the pulmonary hearing testimony goes in is the court sort of judgment which i think courts are well equipped to make i've been making for since last thirty years or more since horton and  tenet without a great deal of difficulty it's not one of these things that's amenable to bright line rules the reason it's not amenable by the way he is that a plenary hearing testimony or trial and if we're talking about a prior trial the analysis i think would be entirely different you know eight point nine hearing testimony in a trial do have some things in common but with slight exaggeration i can say what they have been cost com is what a horse chestnut many policy reasons to make sure that plymouth are hearing stapling or hearings and trial state trials because here if it's not one thing when their hearings are going to be very likely and there are a useful tool to establish probable cause and for just a general screening as to whether we have the right people in the criminal justice system at all if we can put them at a point where defense counsel has to say i'd better get full discovery i'd better as continuance as i better do subpoenas i better ask every question the world because this witness might show want not show up and then he's stuck with what i've got then we're going to be changing the criminal justice system in illinois considerably and i believe to its detriment that last point you were making counsel before a couple of questions here namely that you should have the right to get in the face of someone in cross examination because your experience testimony changes is that in response to opposing counsel saying that in this case there was what amounted to some type of curative instruction given or the fact that you were able to put in that he was an illegal alien yes i mean i think that's the i think that is the best response to that in terms of this sort of and notion of paper impeachment i would also say that what did one of the paper impeachment also give you the opportunity and in closing argument to stress the bias the well in this particular case a defense counsel didn't bring it up whatever i mean defense counsel didn't bring up the illegal alien point in the pretrial motions it was brought up in the post trauma motion and the judge rejected it without giving a reason so i'm not sure what he would have done with the illegal alien point been brought to his attention earlier but in this particular case it never did come in and throw it was not it was not introduced at trial now it was brought up as an additional reason not to put in the form they're hearing testimony in the post trial motion and the judge did not comment on it one way or another the judge just mentioned i believe horton tenet said he thought it was admissible and that was that i mean he didn't even he didn't go further in terms of his in terms of his reasoning but i would also say that in terms of this policy point which justice camara made it sort of fits in with of the state of science because the state has said a number of points well these are really claims of you know effective assistance of counsel that's what you're really saying you're really saying that you wish you had a better attorney at the primary hearing who had brought up the fact that there's no legal way when i'm done something or you wish this and that and the other but that's kind of the point if we meant and to see continuance and so forth and that i would stress i would suggest is a very very poor idea which should not be adopted by this court the way this court has dealt with these issues in the past is a good way of is the same way the  but then in response to justice carmen i think she's she asked about looking to discovery to see what came out and can to be cured or is there no way to cure and i think you also said yes he could be cured well what i said was not with something revolutionary producer in discovery or was it not and again you have to remember that what you're doing is introducing a plan or hearing a very limited procedure in place of trial in this case basically  of the entire trial because this was the sole witness without whose testimony as the appellate court said and i think the try to be the state would deny without his testimony mr torres would have been acquitted straight out there is not enough clarify a couple of points in response the factors that councils discussing have never been specifically set forth by this court as factors that should be considered in determining whether there's adequate opportunity the factors that he's talking about were discussed in horten and this it was in other courts discussion of why in this case there was adequate opportunity but the court did not this  not set forth the rules stating these are the factors that you need to look at such as did anyone else testify to this has defendant brought up other information that would have been helpful that he was not aware of  so it's it's not correct to say that that clinton identified those as the factors that we should look at in determining adequate opportunity and i think it's a fair interpretation of those two cases to say that no specific definition of adequate opportunity was set forth and it's it's because of that fact that over the next several years the appellate courts applied all types of factors in looking at whether there was adequate opportunity and some of those factors were the ones that counsel discussed here such  the significance of the witness and things like back but when this court decided rice and this court defined adequate ineffective opportunity what this court said was you look at the motive and focus of the initial cross examination and you compare it to the cross examination that would take place at a subsequent proceeding and if they are the same or similar that is adequate effective opportunity it since been clarified that the opportunity is a separate complainant that we look at and we look at that in terms of where there are restrictions placed on this defendant under restrictions placed on this defendant by the court and that is the test that should have been applied by the  testimony of pena should not come in because of the fact that they did not get to cross examine on the illegal illegal alien issue is that right i thought counsel said that was only brought up in the specifically that was not a part of his complaint obviously he was aware that pena was an illegal alien because he had been deported and we did put that before the court because one good there there aren't any waiver  we informed the court at the time that we sought to use paying his testimony that he was an illegal alien and there was an objection to the use of that testimony but i believe the main point of the motion the hearing on that motion was the fact that there were additional statements my recollection is that it was also discussed that he was an illegal alien but that was not the thrust of his objection at the time and just to clarify a point in my initial argument the court did not specifically tell him you can raise the point that he's an illegal alien the court said you can bring out centrally whatever information you want i will give you great leeway here so the assumption is that if he would have sought to bring out the fact that he was in no way when he would have been allowed so well my question was it wasn't known at the time of the preliminary hearing the immigration status or the possibility for jason that's cracked so using your prongs of focus an opportunity would opportunity have been diminished not knowing that this witness an immigration status problem could face deportation others you know i think the question was really about you know do you have an opportunity if you don't have all the tools available tools might be the information if they had known this witness could be deported they probably would have taken a different approach at the library here more question do you think that's a fair way to look at it or not in this case i don't think it's a it's a fair way to look at it because when you look at the of the cross examination at the preliminary hearing there was really nothing more that he could have asked save for the final question which is and by the way so are you an illegal alien he had already challenge the witnesses credibility he had already challenge the witnesses ability to view the events he had highlighted the fact that this witness was in the back room when the shooting took place he had already raised the issue of bias and no restrictions were placed on him in terms of any of those questions  exchanges you've indicated now and counsel is that it's a distinction without merit you've indicated that the trial judge would have allowed him great latitude and trial to indicate that pena was an illegal as to whether or not the trial judge really would have allowed great weather to it but as part of your argument that that there's a there it's harmless here in light of the fact that that information would have come out you know counsel as an argument  brought forward in other ways and more importantly the record in both i mean the record indicates that in this case even though the defendant was unable to ask him questions that he wanted he actually used that to his advantage if you look at his arguments if you look at his motion for a directed finding he highlights the fact that all we have is a planetary hearing that we didn't get the opportunity that they didn't present any witness in this courtroom who identified my client being in the by that night all we have here is a cold record they're putting in a piece of paper instead of a witness so he chat he actually used it to his advantage advantage and challenge the credibility of the witness even without the witness being there so yes certainly harmless is a component of our argument so agenda number three thank you for your arguments