People v. Craig

JUSTICE QUINN, specially concurring:

I concur in all of the holdings in the opinion except for the holding that Craig had standing to raise the issue of the alleged violation of Taylor’s and Bishop’s fifth amendment rights. This court has recently reaffirmed that “[t]he law is clear that a defendant has no standing to raise an alleged violation of a witness’ fifth amendment rights. People v. Govea, 299 Ill. App. 3d 76, 84 , 701 N.E.2d 76 (1998); People v. Adams, 283 Ill. App. 3d 520, 524 , 669 N.E.2d 1331 (1996). This is because the constitutional privilege against self-incrimination is a personal privilege. Adams, 283 Ill. App. 3d at 524 .” People v. DeSantis, 319 Ill. App. 3d 795, 801-02 (2000). This has long been the law in Illinois. In Samuel v. People, 164 Ill. 379, 387 (1896), our supreme court held that where the privilege against self-incrimination has been improperly denied to a witness other than the accused, it cannot be raised on appeal because of the personal nature of the privilege.

The Supreme Court has ruled similarly. In Couch v. United States, 409 U.S. 322, 328-29 , 34 L. Ed. 2d 548, 554 , 93 S. Ct. 611, 616 (1973), it held:

“It is important to reiterate that the Fifth Amendment privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him. As Mr. Justice Holmes put it: ‘A party is privileged from producing the evidence but not from its production.’ Johnson v. United States, 228 U.S. 457, 458 [, 57 L. Ed. 919, 920 , 33 S. Ct. 572, 573 ] (1913). The Constitution explicitly prohibits compelling an accused to bear witness ‘against himself; it necessarily does not proscribe incriminating statements elicited from another. Compulsion upon the person asserting it is an important element of the privilege, and ‘prohibition of compelling a man...to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him,’’ Holt v. United States, 218 U.S. 245, 252-53 [, 54 L. Ed. 1021, 1030 , 31 S. Ct. 2, 6 ] (1910) (emphasis added). It is extortion of information from the accused himself that offends our sense of justice.

In the case before us the ingredient of personal compulsion against an accused is lacking.” (Emphasis in original.)

In holding that Craig may assert the alleged violation of a witness’s fifth amendment right not to testify, the majority opinion relies on the holding in Ohio v. Reiner, 532 U.S. 17 , 149 L. Ed. 2d 158 , 121 S. Ct. 1252 (2001), and explains: “If Reiner had no standing to complain, there would be no need for the Supreme Court to rule the way it did; the Court simply could have disposed of the issue in a brief paragraph.” 334 Ill. App. 3d at 445. The explanation put forth by the Supreme Court in Reiner shows that this rationale is faulty. After briefly discussing the Supreme Court’s role in reviewing state courts’ decisions which rely upon the Supreme Court’s precedents, the Court explained:

“We have held that the [Fifth Amendment’s] privilege’s protection extends only to witnesses who have ‘reasonable cause to apprehend danger from a direct answer.’ [Hoffman v. United States, 341 U.S. 479, 486 , 95 L. Ed. 1118, 1124 , 71 S. Ct. 814, 818 (1951)]. That inquiry is for the court; the witness’ assertion does not by itself establish the risk of incrimination. Ibid. A danger of ‘imaginary and unsubstantial character’ will not suffice. Mason v. United States, 244 U.S. 362, 366 [, 61 L. Ed. 1198, 1200 , 37 S. Ct. 621, 622 ] (1917). But we have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment’s ‘basic functions...is to protect innocent men...“who otherwise might be ensnared by ambiguous circumstances.” ’ Grunewald v. United States, 353 U.S. 391, 421 [, 1 L. Ed. 2d 931, 952 , 77 S. Ct. 963, 982 ] (1957) [citation].” (Emphasis in original.) Ohio v. Reiner, 532 U.S. at 21 , 149 L. Ed. 2d at 162 , 121 S. Ct. at 1254 .

The above language explains that the Ohio Supreme Court had disregarded well-settled constitutional principles in reaching its decision in State v. Reiner, 89 Ohio St. 3d 342 , 731 N.E.2d 662 (2000). As this was a decision by a state supreme court which would have an enormous impact on (at a minimum) every court in Ohio, the Supreme Court reviewed the holding and reversed. If the Supreme Court had decided the case on the standing issue, it would not have been able to reach the really important issue — reiterating that the privileges of the fifth amendment are available to “those who claim innocence.” If the Supreme Court had wished to reverse the sound constitutional principle propounded in Couch v. United States, the Court would have said so. This court should not “assume” otherwise.

This is not to say that a trial court’s ruling regarding a witness’s exercise of his fifth amendment right against self-incrimination is never reviewable on appeal. A defendant has standing to assert that the trial court erred in ruling on a witness’s invocation of the fifth amendment when that invocation impacts on the statutory requirements imposed under sections 115 — 10.1 and 115 — 10.2 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115 — 10.1, 115 — 10.2 (West 2000)). See People v. Redd, 135 Ill. 2d 252 (1990) (reversing the decision of a trial court which allowed the State to use a witness’s grand jury testimony as substantive evidence at trial pursuant to section 115 — 10.1, where that witness invoked his fifth amendment rights in refusing to answer almost all questions on direct or cross-examination); also see People v. Quick, 308 Ill. App. 3d 474 (1999), and People v. Brown, 303 Ill. App. 3d 949 (1999) (where witnesses invoked their fifth amendment rights and the trial courts allowed the witnesses’ prior statements to be used as substantive evidence at trial pursuant to section 115 — 10.2).

When a trial court finds that a defense witness may properly exercise his fifth amendment rights and thus excludes that witness’s testimony, the defendant may appeal that decision by asserting that it violated his sixth amendment right to obtain witnesses in his favor. See People v. Loya, 90 Ill. App. 3d 1078, 1087 (1980). Similarly, when a witness testifies in a prior proceeding in a manner that is helpful to a defendant but invokes his fifth amendment rights at trial, the trial court’s decision whether to admit the earlier testimony as a statement against penal interest is reviewable. See People v. Rice, 166 Ill. 2d 35, 38 (1995) (affirming the trial court and reversing the appellate court’s holding that the prior testimony should have been admitted as a statement against penal interest). Also see People v. Taylor, 287 Ill. App. 3d 800, 810 (1997) (holding that a witness’s prior testimony was admissible under the former-testimony and statement-against-interest hearsay exceptions).

Finally, a trial court’s decision overruling a witness’s exercise of his fifth amendment rights is reviewable when that witness is convicted of contempt for refusing to answer questions in spite of the trial court’s order. See People v. Dmitriyev, 302 Ill. App. 3d 814 (1998); People v. McNeal, 301 Ill. App. 3d 889 (1998); People v. Cooper, 202 Ill. App. 3d 336 (1990).

In People v. Gossitt, 259 Ill. App. 3d 825 (1994), and People v. Cassell, 283 Ill. App. 3d 112 (1996), the court addressed the defendant’s claim on appeal that the trial court erred in finding that witnesses did not have a valid fifth amendment right not to testify. While both opinions rejected the defendant’s arguments, they did so substantively and neither addressed the issue of whether the defendant had standing. No reported case in Illinois has held that a defendant has standing to raise on appeal an alleged violation of a witness’s fifth amendment rights under the circumstances present here. For these reasons, I dissent as to this holding while I concur in all other aspects of this opinion.

While a defendant does not have standing to raise an alleged violation of a witness’s fifth amendment rights on appeal, our trial courts still have a duty to see that any witness who properly invokes his right against self-incrimination has that right protected. See People v. Redd, 135 Ill. 2d at 305-06 . Indeed, the trial court has the discretion to inform a witness of his fifth amendment privilege against self-incrimination, particularly when the witness appears in court unrepresented. People v. Radovick, 275 Ill. App. 3d 809, 815 (1995). In doing so, the court must be careful not to appear to threaten the witness, impairing the defendant’s due process right to present witnesses in his defense. 3 R. Steigmann, Illinois Evidence Manual § 20:01 at 67-68 (3d ed. Supp. 2001).