my name is daniel coyne i'm from chicago before a probable cause hearing to sexually violent persons case we would submit to you that to hold otherwise would essentially declaw the respondents right to cross examination and thus render the probable cause hearing a mere formality were available to her on march the eleventh two thousand and thirteen she reviewed those records interviewed the respondent on march twenty eighth two thousand and thirteen it wasn't until july eighth of two thousand and thirteen when we were appointed in the case that those items were subpoenaed by us briefs that soon to section thirty there is no time to respond to any subpoena and thus there should not be a right to a subpoena so turning to whether or not we have a right to a subpoena i would submit to the court that we hearings that call for adversarial testing of the evidence section twenty five outlines and s p p respondents writes section twenty five says that he has to be represented by counsel and he has a right to present in cross examine witnesses there in lies the right to a subpoena to can see come one cannot secure the appearance of a witness and cannot secure documents with which to cross examine a witness unless one utilizes unit who can speak this is been recognized in a number of cases before this court and before the illinois supreme court first of all in rainy rainy says that there is a right to effective counsel in s p p proceedings in fisher versus carrie from the only supreme court there's been it was held that in order to have effective cross examination meaningful cross examination must be prepared the only way to prepare is to get the records from the people that are going to be testifying and that preparation extends to all stages of the proceedings including a probable cause hearing in this court's decision  groan the court said that the burden is on the adverse party in a situation where there is a expert witness testifying to challenge that underlying that that opinion with use of underlying documents whatever it is that supports that opinion must be cross examined finally in harden the case that the state relies upon most heavily its case from the only supreme court that define the purpose of the problem cause hearing in s p p case they said i would quote to the court problem the purpose of the prob hearing is to show that there is a substantial basis for going forward with the commitment while this virtually certain that of probable cause is found the person will remain in custody until the end of the proceeding thus providing a burial through improvident or insubstantial commitment petitions which are not likely to succeed on the merits the only way to be able to have the cross examination with which courts can evaluate an expert opinions testimony is to have those documents that the expert looked at the  this case did not ask for documents that the expert did not look at we asked for the same exact documents that they looked then we know what documents they were to get whether they asked for things that you were incredible to or not it was  subpoena at any hearing these analysis would you process protectionism matthews versus eldridge it was adopted by this court in the weekly analysis the first thing to look at is whether the privacy of private interest involved there is weakly held that the private interest involved is the liberty interest of the respondent if there is there a risk of erroneous deprivation we would submit to this course that they have this is manifest without the subpoena to speak of materials we cannot begin to cross examine a witness so the risk there is that we would have an ineffective probable cause hearing finally the state alleges that if there is an insurmountable burden on the state to produce these documents and usually these documents are in the custody of the state they don't have to turn over anything they're in the custody of an independent evaluator and as i pointed out they were in the custody of that independent aliu evaluator for months before we had asked for them turning  it says a discovery if we were to consider consider this discovery shall be conducted in accordance with the supreme court rules and the supreme court rules say that upon appearance of any defendant discovery make comments so the statutes  unambiguous the should be liberally construed to effect the purpose of the act which is to hold the problem cause hearing and our constitutional protection under due process is manifest we also raise the issue of equal protection section thirty b of the act there are two provisions two separate provisions for probable cause hearing and their timing the first is for anyone in custody the state alleges that it should be i'm sorry the statute alleges that it should be within seven days of the initial detention order for those out of custody the courts as it should be within a reasonable time that reasonable time has been interpreted under sherlock to be up to ninety days so there is a dramatically different treatment of two people response that are similarly situated only because one had the fortunate circumstance of being out of custody while the other one is being detained finally again turning to the timing of the return that is a consideration that the  state is raising there is no issue of timing here the state agreed to these continuances there was never an objection made about these continuances the state's allegation in their brief you never heard from the person who was subpoenaed they could turn it over  people x rockferry the fishers say it's the exact opposite that's correct that it should not be impeded by any review by the opposing party i have addressed all of the issues i believe that are relative and relevant to the three you question if the panel has any questions i'd be happy to answer them otherwise i would reserve my time for rebuttal i have questions but not for you  on step two right step one is if this was criminal a criminal case yes people x rove carrie fisher says he has a right to subpoena before a preliminary hearing even when there's no discovery allowed at that point if it's a civil case which this is the simple rules say that once the parties have appeared they have a right to issue the subpoenas so if  can get it in civil cases if you can get it in criminal cases where in the s t p ak do they say except in this particular type of cause of action you have no right to let me in you get the supreme court talking about subpoena in limited circumstances under fisher well it's more than limited circumstances for example if you were going through a preliminary hearing in a criminal case which i have some familiarity with your internal subpoena the police records your title to which would include any witness statements you're entitled to subpoena outside entities such as i will phone companies already and you know any place that surveillance videos all those things before a preliminary hearing so the question then is where does it say in the s v p ack that all the rules about issuing a subpoena in civil cases in criminal cases do not apply  did the reason i was trying to break it down because there's a different answer for each there that to answer is when the civil context there's a direct conflict between a tiny provisions the legislature set forth under the s p p act whines and because that in the general assembly said these probable cause humans are supposed to take place quickly within seventy two hours or for good call you mean to list case extensions for it and does that mean the state will never move for a continuance because because of a witness before his release date to file your petition not his patient didn't but you have a right ninety days in advance that scratch and in this case when you felt like there was a need to continue the case it was continue and in any event the you could have a situation because we're not deciding the facts of this case whether he was entitled to get a continuance to get this this material you have a situation where a subpoena was sent to a third party and the third party never sent out here to this and if a third party presented to a judge if there was a reason why she couldn't comply and the judge credited that then it would be incumbent upon the defendant i would think to say well judge we would respectfully ask for a continu in till such time as she can comply and the judge would have a great deal of discretion under the law as to whether to grant that continuance or not but those are all issues will be on what we have here and to say that because the legislature says that we should have these hearings within seventy two days only for people who are in custody or not in the hurry if somebody has actually been released to say that that somehow apple gets the right to do she was subpoenaed there would exist in every other civil and criminal case in the state of illinois is something that i give you a great deal of credit for standing up here and trying to not here's my question problem your argument as counsel stated earlier the rights of persons such as the petition include the right to present and cross examine witnesses if a person subject to the act wanted to call a witness because there was some bona fide reason why this the subpoena could not be complied with within that period of time or not that it seems to me very basic i agree  that even though a flitter party was subpoenaed and hang all these records in her possession for a great deal of time and you that the state decided we're not going to take advantage of this ninety day period to give us the right to file this before his release ninety days in advance and instead interposed in the objection not made by the subpoenaed party but only by the state for the sole purpose of stopping them from giving information that would be useful in cross examination i suppose it might discretion i would say get lost if we are going to get this material before the hearing but if there was a legitimate reason it would then be the province of the judge to decide whether to continue the hearing over the objection of the state or whether to grant a sort continuance so that these perceived problems in production could be solved but we don't have that issue before us today i think that's correct sir and that issue is not before you for the court  certified question in this court's going to stick to the letter the certified question is actually relatively simple question as the court has suggested we're talking about is an issue that arose the defense we're making in our brief is to this constitutional right that is positive by that the just do not use the question is just if they pointed out the feasibility of getting his material here because he said outright there's no right and therefore likely consider anything else and that's what we're answering today i think that's what i think that's a fair reading of what the trial judge said in this case and then when to but then there was a bit certification process where response to just these four certify questions the judge sort of made a hybrid of the two of them so and that's how we end up here on our an interlocutory appeal i think that's fair but if you look at the letter the certified question universally accepted that he's right the issue of this if you don't remember having had all this time to produce something that was actually in the possession of the subpoenaed party well advance to be actually no problem turning it over story that right right right was not developed in this case what was never developed and i think this goes to the questions we've had here today is what is the burden on the state in this case or any case and we posited that it's easy to a limited case on limited record of course we're not here i mean it on a limited factual question we're here on a three o eight appeal where we have a certified question of law it's easy to say in certain cases maybe we don't have heavy burden on there is no case law in the state of illinois that says that it is anticipated that you have a different standard for getting the material than you have for subpoenaing the material the only difference would be is if the person that was subpoenaed alleged that there was someone to burden that it was a fishing expedition any number of where there was some privacy issues that's occurred here in this particular case those objections were not raised at the trial court those objections were again not raised in the petition for three  this court the state has waived all of those objections though the objection that there the i'm sorry the position that just because you can serve a subpoena doesn't mean you're entitled to the return is without support anywhere in statute or in the law and that is the position that the state is arguing to you today that is the position that they have taken in their brief in fact that is what the first footnote in their brief says there is no dispute that the respondent is allowed to issue a subpoena they then try to craft a new argument outside of the three o eight question and say the question is really whether or not somebody can get the material back without a level alleging any sort of a difficulty with production there are many subpoena situation this appeared party has a right to prepare appear before the court say in all good faith i can't do this in this period of time in here while i'm in the judge has decide whether to credit that and if if she or he does credit it what the thirty those are not the state's protection well that's another issue that we don't have before us right now i understand finally what i would say is the state wants you to read into the s v p act and to actually do a statutory construction alice's of it doesn't need that  on its face there's no need to discern intent the statute is plain on its face of what to do in this situation referring us over to the civil practice act unless you have any other questions i would waive the remainder of my time and