observing that “Illinois courts have often allowed very young children to testify” at criminal trials, and collecting cases involving four-, five-, and six-year-old witnesses
How later courts described this case
- observing that “Illinois courts have often allowed very young children to testify” at criminal trials, and collecting cases involving four-, five-, and six-year-old witnesses
- finding that exclusion of a child witness’s testimony critical to his mother’s defense in a murder prosecution violated the Sixth Amendment
- assessing the probability of prejudice “requires consideration of the totality of the 42 evidence before the judge or jury, and a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” (internal citation and quotation marks omitted)
- overwhelming nature of evidence 18 against defendant was not enough to negate prejudical effect of attorney’s failure to secure testimony of six-year-old sole eyewitness where admission of eyewitness’ testimony would have placed all other evidence at trial in an entirely different light
Written by the judges who cited it.
The opinion
MANION, Circuit Judge,
concurring.
I concur with the court’s comprehensive opinion. The Sixth Amendment of the United States Constitution provides that the accused shall have the right “to have compulsory process for obtaining witnesses in his favor.” This seldom-visited provision necessarily emerges under the facts of this case. Forty-five years ago the Supreme Court summed it up pretty well.
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.
Washington v. Texas, 388 U.S. 14, 19 , 87 S.Ct. 1920 , 18 L.Ed.2d 1019 (1967).
At the time of Jaquari’s death, his brother Diante was five years old. Apparently he was the only one in the room when Jaquari became strangled by the elastic band from the fitted bed sheet. After many hours in custody, Nicole Harris made a very lucid confession, on videotape, under careful questioning by the prosecuting attorney. When this was presented at trial, Ms. Harris vehemently challenged it. Nevertheless, the jury viewed it in full.
The court cites several shortcomings in Harris’s counsel’s performance that contributed to the decision not to allow Di-ante’s testimony. In that regard, I agree that counsel’s assistance was ineffective.
If the government chooses to retry the case, presumably two things will occur. The jury will again see the taped confes *651 sion and Ms. Harris will similarly challenge it. But when Diante testifies, he will be IS or 14 years old. No doubt he has reflected on what he saw (and did not see) ever since, especially during his visitations in prison with his mother during the intervening years. His reflections will be much more precise, and in all likelihood beneficial to his mother.
Regardless of the decision whether or not to retry, or the subsequent testimony if it is tried, nothing will override the tragedy of Jaquari’s death.