In re T.Z., 2017 IL App (4th) 170545 (December). Episode 450 (Duration 10:35)
7 year old victim is allowed to whisper the damaging testimony to the judge who then repeated the statement for the record.
On February 15, 2017, the State filed a petition for adjudication of delinquency and wardship, alleging respondent committed the offenses of aggravated criminal sexual assault (720 ILCS 5/11-1.30(b)(i) (count I)) and criminal sexual assault (720 ILCS 5/11 1.20(a)(3)) (count II)) against T.W., his seven-year-old nephew.
The court adjudicated respondent a ward of the court, committed him to the DOJJ for an interim period, and set a review hearing to consider residential treatment.
Seven-year-old T.W. “promised” to tell the truth.
He testified in open court as to his age, schooling, living situation, and familial relationship with respondent. T.W. also identified respondent as being present in the courtroom. T.W. testified he recalled an occasion when he stayed the night at his neighbor’s home, where respondent was also staying the night.
But when the kid got to the contact he would whisper it to the judge and the judge would repeat the statement for the record.
For example, it went like this:
([T.W.] whispers to the court.)
THE COURT: Do you want me to say what you just said or can you say it?[T.W.]: You.
You want me to say that he touched you in your privates? Is that what you told me?[T.W.]: Yes.
THE COURT: Okay.[STATE]: Your private. Was there anything that [respondent] did with his private to you? Do you want to tell the judge? [T.W.]: (Nods head.) [STATE]: Yeah?
([T.W.] whispers to the [c]ourt.)
THE COURT: He said he put his private in his butthole.[STATE]: Did he do anything with his private in your mouth? [T.W.]: (Nods head.) [STATE]: You nodded your head. Does that mean yes? [T.W.]: Uh-huh. [STATE]: Okay. Did anything happen with his private when he put it in your mouth?
([T.W.] whispers to the court.)[DEFENSE COUNSEL]: Your Honor, if we may approach?
THE COURT: Not yet. Go ahead. He said I would choke.[STATE]: Did that happen more than one time? [T.W.]: Yes.
Respondent asserts his right to confrontation was violated at his adjudicatory hearing by the manner in which the trial court permitted T.W. to testify.
Specifically, respondent complains of the manner in which T.W. was allowed to answer questions by whispering answers to the court to be repeated by the court for the record.
The confrontation clause of the sixth amendment of the United States Constitution, made applicable to the states through the fourteenth amendment (U.S. Const., amend. XIV), provides, in part, as follows:
“In all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him.” U.S. Const., amend. VI.
The right to confront witnesses is equally applicable in juvenile delinquency proceedings. People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 201-02, 909 N.E.2d 783, 796 (2009).
Case Law On Alternate Procedures
In Lofton the State, implemented an ad hoc courtroom procedure to receive a child’s testimony. See People v. Lofton, 194 Ill. 2d 40, 740 N.E.2d 782 (2000). The Illinois Supreme Court addressed the constitutionality of a courtroom procedure designed to prevent a child witness from having to face in open court a defendant charged with sexually assaulting the child.
The trial court in Lofton implemented an ad hoc procedure to allow the child witness to testify from behind a barrier of podiums, which precluded the defendant from being able to view the child when testifying. See also Coy v. Iowa, 487 U.S. 1012 (1988) (large screen that prevented defendant from seeing the kid was unconstiutional).
But in Maryland v. Craig, 497 U.S. 836, 841 (1990) the court allowed one way closed circuit tv testimony of the child after the court made a finding that the child witness would suffer severe emotional distress if required to testify in open court.
As this court stated in People v. Hadden, 2015 IL App (4th) 140226, ¶ 28, 44 N.E.3d 681, “[s]poken language contains more communicative information than the mere words because spoken language contains ‘paralanguage’—that is, the ‘vocal signs perceptible to the human ear that are not actual words”.
See Also Child Shield Act
See 725 ILCS 5/106B-5.
The court’s procedure of permitting T.W. to answer questions by whispering answers to be repeated by the court for the record precluded both respondent and his counsel from listening to T.W.’s answers and the manner in which he testified.
The inability to hear T.W. answer questions limited possible lines of inquiry that might have been indispensable to effective cross-examination.
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. We find, as respondent asserts, listening to the manner in which a witness testifies is as vital as observing the manner in which the witness testifies.
We also note, prior to implementing such a procedure, the court made no case-specific finding of necessity on the record. The trial court must *** find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant.
We find the ad hoc courtroom procedure used by the trial court was a clear and obvious violation of respondent’s right to confrontation. by the trial court was a clear and obvious violation of respondent’s right to confrontation. This error directly impacted respondent’s ability to contest the credibility of the complaining witness.
The error is particularly prejudicial here, where the trial court made clear in the oral pronouncement of its decision that (1) “the issue before the court [was] one of credibility,” and (2) it relied on the answers whispered by T.W. in reaching its credibility determination.
In addition, the trial judge is not sworn, as an interpreter would be, and cannot serve as a witness as well as a fact finder. In our assessment, we find the evidence is closely balanced.
Respondent is entitled to relief under the first prong of the plain-error doctrine. We reverse and remand for a new adjudicatory hearing before a different judge and, if necessary, a new dispositional hearing. Reversed and remanded.