People v. Encalado, 2018 IL 122059 (March). Episode 477 (Duration 8:50)
There is no body of case law documenting the public shaming of patrons of prostitutes.
Defendant was indicted on 15 charges of aggravated criminal sexual assault and 3 charges of criminal sexual assault.
In the indictment, it was alleged that, on the morning of March 5, 2006, defendant knowingly, and by the use of force or threat of force, committed acts of oral, vaginal, and anal sexual penetration upon Y.C.
The victim in this case was brutally raped by defendant. She got into his car because he said her family member needed her.
Prior to defendant’s trial, the State filed a motion to admit other crimes evidence to show that defendant committed similar sexual assaults against J.H., C.C., and S.A.
The trial court granted the State’s request with respect to C.C. and S.A., allowing admittance of other crimes evidence to show intent, lack of consent, and propensity.
A prior victim testified that she too was punched in the mouth by defendant and raped by him after he had offered to give her a ride.
After the trial court ruled to allow the admission of other crimes evidence, defense counsel advised the court that defendant intended to testify that Y.C., C.C., and S.A. all consented to having sex with defendant in exchange for the payment of cash and drugs but that, after they provided the agreed services, defendant took back the payments he made.
Counsel stated that the jurors “are going to hear evidence that [defendant] did engage in soliciting and using prostitutes.”
Defendant testified this was all consensual sex with prostitutes and they were angry with him for not paying.
Accordingly, during the trial, defense counsel asked the court to inquire of the venire whether
“[t]he fact that you will hear evidence about—and just put it mildly—to not try to indoctrinate them at all—you will hear evidence about prostitution. Would that fact alone prevent you from being fair to either side?”
The court refused the request, finding that the question was improper because it would be “asking them to comment on particular types of evidence that they may hear.”
The appellate court, with one justice dissenting, reversed defendant’s convictions and remanded for a new trial. The court held that the circuit court abused its discretion when it refused to question the venire members about any potential bias they might have in connection with prostitution.
The relevant question in this case is not whether patrons of prostitutes can be made to feel ashamed if their behavior is publicized or whether prostitution evokes “strong responses” in the minds of the public. Rather, the question is whether prospective jurors harbor such bias against those people who patronize prostitutes that the jurors will not believe the testimony of such a person or be able to give that person a fair hearing.
It is the jurors’ ability to fairly consider the evidence before them that is the critical issue.
Voir dire questions on gangs not required because gang members feel ashamed of being in a gang, or simply because gang membership provokes strong feelings in the public.
Instead, the questions were required because the public views the testimony of gang members with skepticism and may, therefore, fail to consider the testimony of a gang member without prejudice.
And, importantly, this fact was established by a substantial body of case law. See People v. Strain, 306 Ill. App. 3d 328, 332 (1999)
There is no similar body of law here.
None of the articles or decisions cited by the appellate court below discuss how members of the general public treat the testimony of those who patronize prostitutes. And none of the authorities establish that the public harbors bias against the patrons of prostitutes to the extent that such a person’s testimony cannot be considered fairly. There is no body of law that holds that the testimony of patrons of prostitutes is treated with skepticism by the public.
Disagreement Over The Facts
In Strain, the gang affiliation of the witnesses was a matter that was both inescapably a part of the trial and a matter that was not in dispute by either party.
In this case, in contrast, it was disputed whether Y.C. and C.C. were, in fact, prostitutes. Thus, defendant’s proffered question did not involve a matter that was indisputably true and inextricably a part of trial. Rather, the question amounted to a preliminary argument regarding a disputed question of fact.
Voir Dire Procedure
This type of questioning during voir dire is generally not permitted.
Even if it were true that Y.C. and C.C. were prostitutes, it is difficult to conceive how a juror who could fairly judge the explicit sexual conduct would be rendered incapable of fairly judging defendant based on the fact he patronized prostitutes.
The trial court in the case at bar conducted a thorough voir dire, asking all members of the venire, among other things, whether they could follow the law and obey the instructions given by the court and whether they would use sympathy, bias, or prejudice in reaching a decision.
Allowing defendant’s proffered question would have permitted defendant to pre argue a disputed issue of fact. Given these circumstances, we cannot say that refusing defendant’s proffered question regarding prostitution rendered the voir dire proceeding fundamentally unfair.
Accordingly, we hold that the trial court did not abuse its discretion in denying defendant’s question. For the foregoing reasons, the judgment of the appellate court is reversed.
Episode 314 – People v. Encalado (the lower appellate court opinion)