People v. Redd

JUSTICE MILLER, specially concurring:

I agree with the majority that the trial court erred in admitting prosecution witness Leslie Bea’s grand jury testimony as substantive evidence. My explanation for that conclusion is somewhat different from the majority’s, however, and for that reason I write separately.

Section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.1) permits the substantive use of a trial witness’ prior inconsistent statement, such as the grand jury testimony at issue here, “if (a) the statement is inconsistent with his testimony at *** trial, and (b) the witness is subject to cross-examination concerning the statement.” The majority concludes that neither statutory requirement was satisfied in the present case and that the introduction of the witness’ prior statement was therefore improper.

In determining that a witness’ claim of the privilege against self-incrimination cannot be construed as being inconsistent with what the witness said on a prior occasion, the majority declares that in claiming the privilege the witness “is asserting only that he believes the answers to questions posed may tend to incriminate him.” (135 Ill. 2d at 308.) The majority’s conclusion on this issue leaves several points unanswered, however. First, it is not clear that a claim of privilege is a testimonial assertion at all. One may question whether a witness who, like Leslie Bea, asserts the privilege against self-incrimination throughout his time on the witness stand has in fact provided any testimony against which a prior statement may be compared for purposes of determining consistency and inconsistency under the statute. Moreover, if a claim of the privilege against self-incrimination is to be viewed as a testimonial assertion, then perhaps we should also recognize that a witness who stands on the privilege may in fact believe that he is acting in a manner that is consistent with a prior inculpatory statement and inconsistent with a prior noninculpatory or exculpatory statement.

In any event, those matters need not be resolved in the present appeal, for exclusion of the grand jury testimony was required on a separate, independent ground. Of greater concern here is the question whether a witness who asserts the privilege against self-incrimination may be deemed to be subject to cross-examination concerning his prior statement. I agree with the majority that the cross-examination requirement was not satisfied in the instant case. Because the grand jury testimony was inadmissible on that ground alone, it is not necessary that we decide whether the inconsistency requirement was also met.

Section 115 — 10.1 is similar to Federal Rule of Evidence SOl(dXlXA) (Fed. R. Evid. 801(dXlXA)), which excludes from the definition of hearsay certain prior statements of a declarant that are inconsistent with his current testimony. The Federal rule requires that the declarant testify at trial and be subject to cross-examination concerning the prior statement. According to one leading text, the rule is not applicable if the trial witness “claims a privilege so that direct examination or effective cross-examination is thwarted.” 4 J. Weinstein & M. Berger, Weinstein’s Evidence par. 801(dXlXAX01), at 801 — 109 (1988).

In United States v. Owens (1988), 484 U.S. 554 , 98 L. Ed. 2d 951 , 108 S. Ct. 838 , the Supreme Court considered a related question. In that case a witness’ memory was severely impaired as a result of a beating he incurred as a correctional counselor in a Federal prison. While recovering from his injuries, the victim identified the defendant as his attacker. At the defendant’s trial, the victim testified to some of the circumstances of the assault but could not recall seeing the defendant. The victim was able to remember, however, his previous identification of the defendant. The Supreme Court held that the witness’ inability at trial to recall the basis for his previous identification of the defendant did not violate the defendant’s confrontation right. The Court also ruled that the prior identification was admissible under Federal Rule of Evidence 801(d)(lXC), which excludes from the definition of hearsay a statement regarding an out-of-court identification. The Court held that the witness was subject to cross-examination concerning the prior identification, as required by Rule 801(dXl). The Court explained:

“It seems to us that the more natural reading of ‘subject to cross-examination concerning the statement’ includes what was available here. Ordinarily a "witness is regarded as ‘subject to cross-examination’ when he is placed on the stand, under oath, and responds willingly to questions. Just as with the constitutional prohibition, limitations on the scope of examination by the trial court or assertions of privilege by the witness may undermine the process to such a degree that meaningful cross-examination within the intent of the rule no longer exists. But that effect is not produced by the witness’ assertion of memory loss — which, as discussed earlier, is often the very result sought to be produced by cross-examination, and can be effective in destroying the force of the prior statement. Rule 801(dXlXC), which specifies that the cross-examination need only ‘concer[n] the statement,’ does not on its face require more.” 484 U.S. at 561-62 , 98 L. Ed. 2d at 959 , 108 S. Ct. at 844 .

In contrast to the witness’ memory loss in Owens, in the present case “assertions of privilege by the witness undermine[d] the process to such a degree that meaningful cross-examination” did not occur. Apart from constitutional concerns (see Douglas v. Alabama (1965), 380 U.S. 415 , 13 L. Ed. 2d 934 , 85 S. Ct. 1074 (finding confrontation violation where witness, in response to questions regarding prior confession inculpating himself and defendant, claimed privilege against self-incrimination)), it thus appears that the trial court erred in allowing the introduction of the witness’ prior statement as substantive evidence under section 115 — 10.1. See United States v. Fiore (2d Cir. 1971), 443 F.2d 112 (requirement of then-proposed Federal Rule of Evidence 801(d) that declarant testify at trial and be subject to cross-examination concerning statement not satisfied when declarant makes evident his refusal to testify); see also United States v. Chapman (11th Cir. 1989), 866 F.2d 1326, 1330 (wife rendered unavailable as witness by assertion of spousal privilege not to testify against husband); United States ex rel. Thomas v. Cuyler (3d Cir. 1977), 548 F.2d 460, 463 (“A witness who refuses to be sworn or to testify at all or one who, having been sworn, declines to testify on Fifth Amendment grounds, has not been thus made available for cross-examination”).

It is unclear on the present record whether the witness could properly invoke his privilege against self-incrimination. As the majority opinion states, the privilege is not available simply because the witness wishes to claim it. Thus, on remand, if the witness again attempts to assert the privilege against self-incrimination, it will become necessary for the trial judge to determine whether the privilege is in fact available in these circumstances. It may be noted that the hearsay exception allowing the use of an unavailable declarant’s former testimony is not applicable here, for the defendant had no opportunity to cross-examine the witness during his appearance before the grand jury. (See People v. Horton (1976), 65 Ill. 2d 413, 415-17 ; People v. Wilkerson (1984), 123 Ill. App. 3d 527, 534 .) That the witness’ grand jury testimony “consisted of answers to leading questions posed to him by the State,” as the majority observes (135 111. 2d at 311), does not, however, render the rule of section 115 — 10.1 any less applicable in a proper case.

JUSTICE STAMOS joins in this special concurrence.