People v. Fitzpatrick

JUSTICE FREEMAN, dissenting:

The majority holds that the Child Shield Act (Act) (Ill. Rev. Stat. 1991, ch. 38, par. 106B — 1) impermissibly abridges a defendant’s right to confront his accuser as guaranteed by article II, section 8, of our constitution. However, the majority has failed to demonstrate that the substance of the Illinois confrontation clause is abridged by application of the Act. Therefore, I respectfully dissent.

The majority interprets the language in Illinois’ confrontation clause as "conferring] an express and unqualified right to a face-to-face confrontation with witnesses.” (158 Ill. 2d at 365.) A witness permitted to testify via closed circuit television, as provided for under the Act, denies a defendant the face-to-face encounter envisioned by the drafters of our constitution. (158 Ill. 2d at 365.) Thus, the majority holds the Act is unconstitutional.

I disagree with this analysis and the resulting conclusion. To support its position, the majority attempts a distinction between the Federal and the Illinois confrontation clauses. Article I, section 8, of the Illinois Constitution states, "In criminal prosecutions, the accused shall have the right *** to meet the witnesses face to face ***.” (Ill. Const. 1970, art. I, § 8.) The confrontation clause of the sixth amendment states: "In all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him ***.” (U.S. Const., amend. VI.) The majority reasons that because the Illinois provision expressly requires a face-to-face encounter, the comparable Federal confrontation provision is inapposite to the Illinois provision. Further, the majority reasons, Federal decisional law, particularly, Maryland v. Craig (1990), 497 U.S. 836 , Ill L. Ed. 2d 666, 110 S. Ct. 3157 , which examines the propriety of testimony given via closed-circuit television in the context of a sixth amendment claim, is inapplicable to this case.

The mainstay of the majority’s analysis is that the Federal confrontation clause is inapposite to the Illinois provision. The majority can only reach this conclusion by overlooking significant Supreme Court cases which have long established the breadth and meaning of the sixth amendment clause. Even a cursory review of those decisions reveals that, although phrased differently, the two provisions are synonymous. No distinction can be drawn between the protections provided by the two clauses where the one simply expressly provides for what the other, though stated differently, intends.

As early as 1899, in Kirby v. United States (1899), 174 U.S. 47, 55 , 43 L. Ed. 890, 894 , 19 S. Ct. 574, 577 , the Court described the operation of the clause as follows: "[A] fact which can be primarily established only by witnesses cannot be proved against an accused *** except by witnesses who confront him at the trial, upon whom he can look while being tried ***.” (Emphasis added.) Later, in Dowdell v. United States (1911), 221 U.S. 325, 330 , 55 L. Ed. 753, 757 , 31 S. Ct. 590, 592 , the Court described a provision of the Philippine bill of rights as substantially the same as the sixth amendment, and proceeded to interpret it as intended "to secure the accused in the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial.” (Emphasis added.) More recently, in Coy v. Iowa (1988), 487 U.S. 1012 , 101 L. Ed. 2d 857 , 108 S. Ct. 2798 , the Court detailed the origin of the term "confrontation.” After tracing its origin, the Court stated that "[w]e have never doubted *** that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” (Emphasis added.) Coy, 487 U.S. at 1016 , 101 L. Ed. 2d at 864 , 108 S. Ct. at 2801 .

Unquestionably, the sixth amendment’s right to confront witnesses language, like the comparable Illinois clause, requires a face-to-face encounter. That settled, the difference in phraseology can provide no basis for the distinction the majority seeks to make.

Furthermore, it is significant that this court has held that "[d]espite the language difference, the two clauses are meant to protect the same interest.” (People v. Tennant (1976), 65 Ill. 2d 401, 408 .) In Tennant, this court cited, approvingly, to Dean Wigmore’s discourse on the various protections provided by the confrontation clause. The court noted Wigmore’s observation that the advantage obtained by the personal appearance of the witness at trial is only secondary to the more essential purpose of cross-examination. Tennant, 65 Ill. 2d at 409 . See also People v. Ferguson (1951), 410 Ill. 87, 90 (holding that "the constitutional right of confrontation (section 9 of article II) is designed to secure to an accused the right to cross-examine the witnesses who testify against him”).

The Supreme Court has similarly observed that the "central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Craig, 497 U.S. at 845 , Ill L. Ed. 2d at 678, 110 S. Ct. at 3163 .

Based upon this body of law, I reject the majority’s distinction of the comparable confrontation clauses, as well as its summary dismissal of Craig, 497 U.S. 836 , 111 L. Ed. 2d 666 , 110 S. Ct. 3157 , as inapplicable to this case.

I would agree with the majority that we are not bound by the United States Supreme Court’s interpretation of Federal constitutional provisions which are similar to our own. (See 158 Ill. 2d at 367.) However, there must, at least, be some substantive basis for our departure. We have not, heretofore, found the difference in phrasing adequate to provide such a basis.

Most recently, in People v. Levin (1993), 157 Ill. 2d 138 , the defendants argued for a broader interpretation of Illinois’ double jeopardy clause based upon a difference in wording between the Illinois and Federal Constitutions. We unanimously rejected that argument, holding that "the difference in wording offers no substantial basis to support a conclusion that Illinois’ clause provides broader protections than does its Federal counterpart.” (Levin, 157 Ill. 2d at 160 .) Relying on People v. Tisler (1984), 103 Ill. 2d 226, 245 , we suggested in Levin that, in addition to the language, defendants needed to demonstrate a more substantive basis that our double jeopardy clause was intended to be construed differently than the Federal provision. (Levin, 157 Ill. 2d at 160 .) Until now, this court has consistently rejected the majority’s approach to constitutional construction as inadequate. The majority offers no reason why this approach is now sufficient.

There can be no argument that the face-to-face language in our constitution means just that. The only relevant question is whether, under our constitution, the right to a face-to-face encounter is absolute. The majority holds that it is. Given that both the Illinois and the Federal confrontation clauses require a "face-to-face” confrontation and provide identical protections, I find Craig highly persuasive authority that the Illinois provision is not without exception.

The sixth amendment right to confrontation has been held not to be absolute; exceptions have always been recognized. (See People v. Fiddler (1970), 45 Ill. 2d 181, 186 , citing Pointer v. Texas (1965), 380 U.S. 400, 404-05 , 13 L. Ed. 2d 923, 927 , 85 S. Ct. 1065, 1068 .) As a practical matter, a literal reading of the confrontation clause would " 'abrogate virtually every hearsay exception.’ ” (Craig, 497 U.S. at 848 , Ill L. Ed. 2d at 680, 110 S. Ct. at 3165 , quoting Ohio v. Roberts (1980), 448 U.S. 56, 63 , 65 L. Ed. 2d 597, 605-06 , 100 S. Ct. 2531, 2537 .) The same observation can be made with respect to the Illinois provision. That notwithstanding, I fully recognize that the denial of the right to a face-to-face encounter or any significant diminution calls into question the integrity of the fact-finding process. (See 23 C.J.S. Criminal Law § 1115 (1989).) However, I firmly believe that in an appropriate case, the right may "bow to accommodate legitimate interests in the criminal trial process.” (Emphasis added.) Chambers v. Mississippi (1973), 410 U.S. 284, 295 , 35 L. Ed. 2d 297, 309 , 93 S. Ct. 1038, 1046 .

It is significant that the majority cites to a Pennsylvania Supreme Court case, Commonwealth v. Ludwig (1991), 527 Pa. 472 , 594 A.2d 281 , which declined to follow the reasoning in Craig. (158 Ill. 2d at 367.) Certainly, we regard the jurisprudence of our sister jurisdictions as persuasive authority. In that regard, I would offer State v. Schaal (Mo. 1991), 806 S.W.2d 659 , which supports a conclusion consistent with Craig. In Schaal, the Missouri Supreme Court determined whether a State statute, which permitted the introduction of an out-of-court videotaped statement of a child sexual abuse victim, was violative of the Federal and State confrontation provisions. The defendant argued that the inability to cross-examine the victim at the time of the making of the videotape violated his State and Federal guarantees to confront witnesses against him. Notwithstanding the State’s constitutional requirement of a face-to-face encounter, the court held that where the statute requires that the child witness be available to testify at trial, under oath, and be subject to the fact finder’s observation of demeanor and the jurors are able to judge the videotaped, recorded testimony for themselves, the defendant’s right to confront witnesses is not abridged.

Though Schaal is factually distinguishable from the present case, the relevant issue is analogous to the one both in Craig and now before this court. Each case presents a question regarding the propriety of depriving a defendant of his constitutional right to a face-to-face encounter with a witness. Both Craig and Schaal permit such a deprivation where legitimate policy considerations and adequate safeguards for the reliability of evidence are present. Thus, the strength of Ludwig is counterbalanced by the existence of Schaal.

As stated previously, the right to confrontation enhances the reliability of evidence, thereby preserving the truthseeking goal of trial. The majority does not suggest that the reliability of evidence is rendered less trustworthy under the Child Shield Act. Indeed, the child’s face-to-face confrontation with a suspected abuser "may so overwhelm the child as to prevent the possibility of effective testimony, thereby undermining the truthfinding function of the trial itself.” See Coy, 487 U.S. at 1032 , 101 L. Ed. 2d at 874 , 108 S. Ct. at 2809 (Blackmun, J., dissenting, joined by Rehnquist, C.J.).

Moreover, the Act expressly provides various safeguards intended to insure the reliability of that evidence. Specifically, the Act requires that the testimony be taken during the proceeding and that the defendant be permitted to communicate with persons in the room with the child. Additionally, because the judge is permitted to be in the same room with the child, the court is not deprived of the opportunity to observe the child’s demeanor while testifying. (See Ill. Rev. Stat. 1991, ch. 38, pars. 106B — 1(a)(1), (b)(1), (b)(2), (b)(3).) Though the process of eliciting testimony is altered, such alteration does not rise to the level of a constitutional deprivation. The defendant is not denied the substance of the constitutional protection — the right to cross-examine the witness.

Neither does the majority suggest, nor could it, that the State’s interest in the successful prosecution of those persons who sexually abuse society’s youth is not a legitimate one. As noted in Craig, that a significant majority of States have enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the widespread belief in the importance of such a public policy. See Craig, 497 U.S. at 853 , Ill L. Ed. 2d at 683, 110 S. Ct. at 3167 .

In sum, the majority offers no valid basis for the invalidation of the Child Shield Act. Because the language of our constitution cannot compel the result reached here, the majority leaves us with a result unsupported by law and flawed in its reasoning.

Accordingly, Craig provides persuasive authority that the right to a face-to-face encounter is not absolute and must bow to the State’s compelling interest in the successful prosecution of child sexual abusers. Dean Wigmore considered it clear that the right of confrontation is provided "not for the idle purpose of gazing upon the witness, or of being gazed upon by him,” but rather to permit the opportunity for cross-examination. (5 J. Wigmore § 1395 (Chadbourn rev. ed. 1974).) Under the Act, the defendant is not denied his right to cross-examination and, further, the truthseeking goal is not compromised in the process. For these reasons, I would uphold the Child Shield Act as not violative of the

defendant's confrontation right under the Illinois Constitution.

JUSTICE MILLER joins in this dissent.