# People v. Craig > Appellate Court of Illinois · September 12, 2002 · 334 Ill. App. 3d 426 URL: https://www.frixlaw.com/law-library/cases/9731620 ## Case - **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CALVIN CRAIG, Defendant-Appellant - **Court:** Appellate Court of Illinois - **Decided:** September 12, 2002 - **Citations:** 334 Ill. App. 3d 426; 268 Ill. Dec. 206; 778 N.E.2d 192; 2002 Ill. App. LEXIS 826 - **Precedential status:** Published - **Opinion:** Concurring in part by Reid - **Judges:** Greiman, Quinn, Reid - **Cited by:** 43 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9731620 ## How later opinions describe it (automated extraction) - noting that the burden of proving that the State knowingly used perjured testimony lies with the defendant - noting, the burden of proving that the State knowingly used perjured testimony lies with the defendant ## Opinion text JUSTICE REID, specially concurring in part and dissenting in part: Although I concur in the holdings that (1) this cause, at least, should be remanded for the trial court to resentence the defendant, and (2) the defendant has standing under the circumstances of this case to raise the issue on appeal that arises out of the alleged violation of Bishop’s and Taylor’s fifth amendment rights, I dissent as to the holding that affirms the conviction. I would reverse and remand for a new trial. As to the issue of standing, I would like to make some observations to supplement those expressed in the majority opinion. While I do not feel that our reliance on the holding in Ohio v. Reiner, 532 U.S. 17 , 149 L. Ed. 2d 158 , 121 S. Ct. 1252 (2001), is misplaced, I take the position that we need not reach the argument that Reiner has changed the law on standing. In People v. Redd, 135 Ill. 2d 252 (1990), our supreme court addressed a situation where the State called a witness (Mr. Bea) who invoked his fifth amendment rights in refusing to answer almost any questions by the State on direct exam. The trial court then allowed the State to ask the witness whether he was asked certain questions and gave certain answers before the grand jury. The defense was allowed to ask numerous questions regarding purported recantations made by the witness. Again, to almost all of these questions on direct and cross, the witness invoked his fifth amendment rights. The trial court allowed the jury to treat the witness’s grand jury testimony as substantive evidence pursuant to section 115 — 10.1 of the Code of Criminal Procedure, based on the court’s finding that the witness’s answers were inconsistent with his grand jury testimony. Our supreme court reversed, holding that a witness in a criminal case has the privilege to refuse to answer questions which tend to incriminate him, but that the protection secured by the fifth amendment is confined to where the witness has reasonable cause to believe he might subject himself to prosecution if he answers. Redd, 135 Ill. 2d at 304 , citing Mason v. United States, 244 U.S. 362 , 61 L. Ed. 1198 , 37 S. Ct. 621 (1917); People v. Baker, 123 Ill. 2d 233, 243-44 (1988); People v. Katsigiannis, 171 Ill. App. 3d 1090, 1101 (1988); People v. Thornton, 120 Ill. App. 3d 983, 986 (1983); People v. McLaren, 77 Ill. App. 3d 368, 373 (1979). The court went on to hold that the privilege does not exist where there are no reasonable grounds to fear self-incrimination. Then the court held that there was nothing in the record before it to indicate that Mr. Bea did or did not have reasonable grounds to fear incriminating himself if he were to answer the questions put to him. (The trial court allegedly only had an off-the-record discussion with counsel.) The court went on to hold that the assertion of the fifth amendment privilege cannot be equated to a lapse of memory for the purposes of section 115 — 10.1; that the requirement that there be an opportunity to cross-examine the witness would not be met; and that the State has the option of extending immunity to the witness which would moot the issue of privilege. Redd, 135 Ill. 2d at 308-09, 314 . While Redd involved an interpretation of a statute, section 115— 10.1, the court gave clear directions that “[ojnce a witness asserts his fifth amendment privilege not to incriminate himself, then ‘it is for the circuit court to determine if under the particular facts there is a real danger of incrimination.’ [Citations.]” Redd, 135 Ill. 2d at 304 . The applicability of this language is not confined to cases involving section 115 — 10.1 evidence. In any event, the case sub judice does involve section 115 — 10.1 evidence and we find Redd to be controlling. It is likewise clear that the court below did not hold a meaningful hearing to determine if the two witnesses before it had reasonable grounds to invoke their fifth amendment privilege not to testify. The trial court based its decision on an erroneous belief that the witnesses had waived the privilege by testifying before the grand jury. This was error. The trial court in holding such a hearing must do so in such a way that witnesses who seek to invoke their right not to testify are subjected to a factual hearing on the reasonableness of their fear of self-incrimination. The evidence to support the claim of privilege should be viewed in the light most favorable to the witness. Hoffman v. United States, 341 U.S. 479, 486-87 , 95 L. Ed. 1118, 1124 , 71 S. Ct. 814, 818 (1951). The court should also give special attention to unrepresented witnesses, using care not to impair the rights of the parties. The interesting thing about this case is that it does not involve buddies trying to help the defendant by claiming the fifth. It involves shooting victims that were members of a rival gang who came into court with a police report hanging over their heads that could be the basis for a belief that they too could be charged with a crime. Also, it is clear that the State did not offer to immunize these two witnesses. Because this was a close case based, in the main, on the conflicting testimony of Bishop and Taylor, I would reverse and remand this case for a new trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9731620. Public record. Not legal advice.