confrontation clause in Illinois

2026In Crawford, 541 U.S. at 51 , the Supreme Court explained that “witnesses,” under the confrontation clause, are those “who bear testimony,” and it defined “testimony” as “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” It thus interpreted the confrontation clause to prohibit the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross- examination.” Id. at 53-54 ; see Davis v. Washington, 547 U.S. 813, 821 (2006) (“It is the testimon

2016Id. at 68 . ¶ 45 In light of the Court's decision in Crawford, we reject Bridgewater's holding that section 115-10 must be narrowly construed, because that holding relied on the notions of reliabil- ity overruled by Crawford.

2025Lewis’s Statements to Jefferson and Barkley Constituted Nontestimonial Hearsay ¶ 84 In granting the State’s amended motion in limine, the trial court, relying on Stechly, 225 Ill. 2d 246 , concluded the statements Lewis made to Jefferson and Barkley “would be nontestimonial.” Before this court, defendant implicitly agrees with this determination in proposing “Illinois evidentiary law,” and not the confrontation clause, as the basis for the inadmissibility of these statements.

2018People v. Stechly, 225 Ill. 2d 246, 264 (2007). ¶ 50 The confrontation clause is primarily concerned with testimonial hearsay.

2025In holding that the confrontation clause was not violated by admission of the grand jury testimony that the witness claimed he could not recall, this court wrote, in pertinent part: - 26 - “The confrontation clause is not violated by admitting a declarant’s out-of- court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination. [Fensterer, 474 U.S. at 20; Green, 399 U.S. at 158.] Contrary to the defendant’s assertions, a gap in the witness’ recollection concerning the content of a prior statement does not necessarily preclude an opport

2025Indeed, in this case, K.P.’s credibility risked undermining as a result of her denials, “I don’t know” answers, and “I don’t remember” answers, and K.P.’s testimony on cross-examination supported the defendant’s theory that K.P.’s statements during the recorded interview were a result of Pierce’s allegations and physical abuse. ¶ 72 Fensterer, Owens, and Flores ¶ 73 Our analysis is bolstered by the fact that the Court’s decision in Crawford did not call into question its previous decisions in Fensterer, 474 U.S. at 20-22 (the confrontation clause guarantees opportunity to cross-examine; a laps

2026People v. Barner, 2015 IL 116949 , ¶ 39. ¶ 33 The confrontation clause “ ‘applies only to testimonial hearsay.’ ” Smith v. Arizona, 602 U.S. 779, 784 (2024) (quoting Davis v. Washington, 547 U.S. 813, 823 (2006)).

2026In Crawford, 541 U.S. at 51 , the Supreme Court explained that “witnesses,” under the confrontation clause, are those “who bear testimony,” and it defined “testimony” as “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” It thus interpreted the confrontation clause to prohibit the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross- examination.” Id. at 53-54 ; see Davis v. Washington, 547 U.S. 813, 821 (2006) (“It is the testimon

2012Williams, 238 Ill.2d at 141 , 345 Ill.Dec. 425 , 939 N.E.2d at 277 ; see also Sutton, 233 Ill.2d at 112 , 330 Ill.Dec. 198 , 908 N.E.2d at 65 (whether a statement is testimonial is a question of law). ¶ 46 Prior to Crawford , the Supreme Court had held that an unavailable witness's out-of-court statement satisfied the sixth amendment and was admissible at trial so long as the statement had "adequate `indicia of reliability.'" Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), overruled by Crawford, 541 U.S. at 61-64 , 124 S.Ct. 1354 .

2012Williams, 238 Ill.2d at 141 , 345 Ill.Dec. 425 , 939 N.E.2d at 277 ; see also Sutton, 233 Ill.2d at 112 , 330 Ill.Dec. 198 , 908 N.E.2d at 65 (whether a statement is testimonial is a question of law). ¶ 46 Prior to Crawford , the Supreme Court had held that an unavailable witness's out-of-court statement satisfied the sixth amendment and was admissible at trial so long as the statement had "adequate `indicia of reliability.'" Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), overruled by Crawford, 541 U.S. at 61-64 , 124 S.Ct. 1354 .

2026“An error that is amenable to harmless error analysis is not a structural error” subject to second- prong plain error review, People v. Logan, 2024 IL 129054, ¶ 80 , and “[e]rroneous admission of evidence is subject to a harmless error analysis,” People v. Heineman, 2023 IL 127854, ¶ 95 ; see People v. Patterson, 217 Ill. 2d 407, 424 (2005) (determining that admission of grand jury testimony in violation of the confrontation clause was “more accurately described as a trial error” rather than a structural defect in the trial (internal quotation marks omitted)); People v. Temple, 2014 IL App (1s

2025Patterson, 217 Ill. 2d at 428 (“Crawford violations are subject to harmless-error analysis.”); Spicer, 379 Ill. App. 3d at 456 (applying harmless-error analysis to a confrontation clause violation); People v. Thompson, 349 Ill. App. 3d 587, 594 (2004) (same).

2020People v. Williams, 238 Ill. 2d 125, 141 (2010). - 18 - ¶ 49 In Crawford v. Washington, 541 U.S. 36, 53-54 (2004), the Supreme Court held the confrontation clause bars admission of testimonial statements if a witness does not appear at trial unless the witness was unavailable to testify, and the defendant had a prior opportunity to cross- examine the witness.

2016VI (providing, "[i]n all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him"); Pointer v. Texas, 380 U.S. 400, 403 (1965) (applies to both federal and state prosecutions); People v. Williams, 238 Ill. 2d 125, 142 (2010) (providing the confrontation clause applies to the states through the fourteenth amendment (citing U.S. Const., amend XIV)).

2025The confrontation clause is designed to ensure reliable evidence “ ‘by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.’ ” People v. McClanahan, 191 Ill. 2d 127, 132 (2000) (quoting Maryland v. Craig, 497 U.S. 836, 845 (1990)).

2023First, the defendant argues that the United States Supreme Court overruled the precedent creating an exception to the confrontation clause set forth in Maryland v. Craig, 497 U.S. 836 (1990); second, the defendant alternatively argues that the testimony violated the sixth amendment where the State failed to meet its burden of proof. ¶ 50 1.

2012At that time, United States Supreme Court doctrine held that hearsay statements can be admitted at trial without violating the confrontation clause if those statements either (1) fall under a firmly rooted exception to the hearsay rule or (2) possess “particularized guarantees of trustworthiness.” (Internal quotation marks omitted.) Idaho v. Wright, 497 U.S. 805, 817 (1990). ¶ 101 However, in Crawford v. Washington, 541 U.S. 36, 53 (2004), the Supreme Court abrogated its prior case law regarding the confrontation clause and adopted the view that (at most) the confrontation clause bars only “te

2004VI) allowed the admission of an unavailable witness’s statement against a criminal defendant if the statement had “adequate ‘indicia of reliability,’ ” i.e., the statement either fell within a “firmly rooted hearsay exception” or had “particularized guarantees of trustworthiness.” Defendant argues that because section 115 — 10 creates a new hearsay exception — one that is not “firmly rooted” in the common law — the confrontation clause requires that any hearsay admitted pursuant to the statute possess “ ‘ “particularized guarantees of trustworthiness” ’ ” (People v. Williams, 193 Ill. 2d 306,

2025Indeed, in this case, K.P.’s credibility risked undermining as a result of her denials, “I don’t know” answers, and “I don’t remember” answers, and K.P.’s testimony on cross-examination supported the defendant’s theory that K.P.’s statements during the recorded interview were a result of Pierce’s allegations and physical abuse. ¶ 72 Fensterer, Owens, and Flores ¶ 73 Our analysis is bolstered by the fact that the Court’s decision in Crawford did not call into question its previous decisions in Fensterer, 474 U.S. at 20-22 (the confrontation clause guarantees opportunity to cross-examine; a laps

2025Indeed, in this case, K.P.’s credibility risked undermining as a result of her denials, “I don’t know” answers, and “I don’t remember” answers, and K.P.’s testimony on cross-examination supported the defendant’s theory that K.P.’s statements during the recorded interview were a result of Pierce’s allegations and physical abuse. ¶ 72 Fensterer, Owens, and Flores ¶ 73 Our analysis is bolstered by the fact that the Court’s decision in Crawford did not call into question its previous decisions in Fensterer, 474 U.S. at 20-22 (the confrontation clause guarantees opportunity to cross-examine; a laps

2022Id. at 122-23 . ¶ 97 Our conclusion that a defendant’s challenge to the admissibility of a statement on hearsay grounds is fundamentally different from a confrontation clause challenge finds additional support in People v. Hughes, 2015 IL 117242 .

2022Defendant admits as much when he argues that “even if this statement constitutes an excited utterance, the excited utterance exception to the hearsay rule does not resolve the Confrontation Clause issue” and relies on People v. Sutton, 233 Ill. 2d 89 (2009), in support of his argument. ¶ 95 Sutton demonstrates the problem with defendant’s attempt to overcome his procedural default of this claim.

2023I, § 8 (amended 1994); People v. Lofton, 194 Ill. 2d 40, 53 (2000). ¶ 63 Mr. Franklin argues that the portion of section 106B-5 of the Code that permits adult victims of sexual abuse who have intellectual disabilities to testify by closed-circuit television violates the confrontation clause for two reasons: (1) it improperly expands Maryland v. Craig’s - 20 - limited exception to the right to face-to-face confrontation for child accusers and (2) it violates the holding from Crawford v. Washington, 541 U.S. 36 (2004), where, 14 years after Craig, the United States Supreme Court provided a more

2022See People v. Stewart, 303 Ill. App. 3d 844, 849-50 (1999), aff’d as modified, People v. Lofton, 194 Ill. 2d 40 - 33 - (2000) (holding the defendant’s absence from a pretrial hearing under section 115-10 of the Code, which allows the admission of hearsay testimony in certain sex-offense cases, did not violate the defendant’s confrontation rights, but ultimately concluding the defendant’s absence violated his due-process right to be present at every critical stage of trial). ¶ 125 Even if the confrontation clause applies, defendant cannot show he was prejudiced by the trial court’s limitation o

2026Whether a statement made in response to police interrogation is “testimonial” - 15 - for purposes of the confrontation clause depends on “the primary purpose of the interrogation.” Id. at 370 .

2025He did not agree, however, with the plurality’s rationale, instead reaching his conclusion “solely because Cellmark’s statements lacked the requisite ‘formality and solemnity’ to be considered ‘ “testimonial” ’ for purposes of the Confrontation Clause.” Id at 103-04. (quoting Michigan v. Bryant, 562 U.S. 344, 378 (2011) (Thomas, J., concurring)). ¶ 99 Pertinent here, Justice Breyer authored a concurring opinion, writing that he would have preferred additional briefing and reargument to address broader questions regarding the general application of the confrontation clause to crime laboratory r

2026However, “[t]he trial court possesses wide latitude to impose reasonable limitations on cross- examination based on concerns about harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or of little relevance, and it may 30 impose certain restrictions on cross-examination so long as those restrictions serve legitimate interests in the criminal trial process and are not arbitrary or disproportionate to the purposes they are designed to serve.” (Internal quotation marks omitted.) Id. ¶ 47. ¶ 79 “[W]hen reviewing a confrontation clause challenge,

2025Id. ¶ 37 However, “[i]t is well established that a trial judge retains wide latitude insofar as the confrontation clause is concerned to impose reasonable limits on such cross-examination based on concerns about harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or of little relevance.” People v. Harris, 123 Ill. 2d 113, 144 (1988) (citing Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986)). “[B]ut this discretionary authority arises only after the court has permitted sufficient cross-examination to satisfy the confrontation clause.” People

2025This court stated that the victims’ “direct testimony provided enough detail to allow for cross-examination within the meaning of the confrontation clause” and that “[t]here was no [indication] they were being evasive.” Id.

2025Accordingly, “[s]ection 115-10 allows for a child victim’s hearsay statement to be admitted *** [where] the court deems the statement reliable and the child testifies at trial (subsections (b)(1) and (b)(2)(A)).” People v. Kitch, 239 Ill. 2d 452, 467 (2011); see People v. Cookson, 215 Ill. 2d 194, 204 (2005) (section 115- 10(b)(2)(A)’s requirement that the child be available to testify at the proceeding comports with the sixth amendment’s confrontation requirement). ¶ 37 In this case, at issue under section 115-10(b)(2)(A) of the Code is whether K.P. was available and “testifie[d] at the proce

2025The plurality noted that in all but one of the post Crawford cases finding a confrontation violation, the abuses shared two characteristics: “(1) [t]hey involved out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct and (2) they involved formalized statements such as affidavits, depositions, prior testimony, or confessions.” Id. at 82 . - 37 - “Thus, the plurality concluded in Williams that not all forensic reports offered by the State are testimonial statements.” Leach, 2012 IL 111534, ¶ 118 . ¶ 98 Justice Thomas concurred in the

2025Id. at 77-79 (“[I]f the trial judge in this case did not rely on the statement in question for its truth, there is simply no way around the proviso in Crawford that the Confrontation Clause applies only to out-of-court statements that are ‘use[d]’ to ‘establis[h] the truth of the matter asserted’ ” (quoting Crawford, 541 U.S. at 59 n.9)). ¶ 97 The Williams plurality also independently concluded that the admission of the actual DNA profile for its truth would not have violated the confrontation clause.

2021The confrontation clause guarantees an opportunity for effective cross-examination but “not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Internal quotations omitted.) Id. (citing People v. Jones, 156 Ill. 2d 225, 243-44 (1993) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)).

2018People v. Blue , 205 Ill. 2d 1 , 12, 275 Ill.Dec. 376 , 792 N.E.2d 1149 (2001) (citing Douglas v. Alabama , 380 U.S. 415 , 418, 85 S.Ct. 1074 , 13 L.Ed.2d 934 (1965) ). " 'The confrontation clause guarantees the opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and whatever extent, the defense [may] wish.' " (Emphasis in original.) People v. Jones , 156 Ill 2d 225 , 243-44, 189 Ill.Dec. 357 , 620 N.E.2d 325 (1993) (quoting Delaware v. Fensterer , 474 U.S. 15 , 20, 106 S.Ct. 292 , 88 L.Ed.2d 15 (1985) ).

2025Id. ¶ 37 However, “[i]t is well established that a trial judge retains wide latitude insofar as the confrontation clause is concerned to impose reasonable limits on such cross-examination based on concerns about harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or of little relevance.” People v. Harris, 123 Ill. 2d 113, 144 (1988) (citing Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986)). “[B]ut this discretionary authority arises only after the court has permitted sufficient cross-examination to satisfy the confrontation clause.” People

2023Trial courts retain wide latitude under the confrontation clause to place reasonable limits on cross-examination, “based on concerns about *** harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Id.

2026ANALYSIS ¶ 26 On appeal, Alexander argues that (1) the court deprived him of his sixth amendment right to confrontation, and (2) the AHC statute is facially unconstitutional. ¶ 27 A. The Sixth Amendment ¶ 28 A “primary interest” of the sixth amendment’s confrontation clause is the “right of cross- examination.” Douglas v. State of Alabama, 380 U.S. 415, 418 (1965).

2025“The confrontation clause ‘provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination.’ ” People v. Hood, 2016 IL 118581, ¶ 19 (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987)); see Douglas v. Alabama, 380 U.S. 415, 418 (1965). “ ‘[C]ross- examination *** cannot be had except by the direct and personal putting of questions and obtaining immediate answers.’ ” Davis, 415 U.S. at 316 (quoting 5 John H.

2026Compare, e.g., People v. Pacheco, 2023 IL 127535, ¶ 48 (“Whether cross-examination has satisfied constitutional scrutiny is a question of law we review de novo.”), and People v. Blue, 205 Ill. 2d 1, 13 (2001) (explaining that the circuit court’s discretion - 11 - to limit cross-examination “arises only after the court has permitted sufficient cross-examination to satisfy the confrontation clause”), with People v. Sutherland, 223 Ill. 2d 187, 272-73 (2006) (reviewing for abuse of discretion).

2025Id. ¶ 37 However, “[i]t is well established that a trial judge retains wide latitude insofar as the confrontation clause is concerned to impose reasonable limits on such cross-examination based on concerns about harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or of little relevance.” People v. Harris, 123 Ill. 2d 113, 144 (1988) (citing Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986)). “[B]ut this discretionary authority arises only after the court has permitted sufficient cross-examination to satisfy the confrontation clause.” People

2017“The confrontation clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to - 15 - whatever extent the defense desires.” (Emphasis in original.) Id.

2017Limitation on Evidence of Causation ¶ 77 Defendant next argues that the trial court erred by requiring defendant to first make a “preview” proffer of evidence of causation before cross-examining the State’s witnesses or presenting his own evidence on that issue. ¶ 78 “Although any limitation on the right to cross-examine requires scrutiny, a defendant’s rights under the confrontation clause are not absolute.” People v. Averhart, 311 Ill.

2025In holding that the confrontation clause was not violated by admission of the grand jury testimony that the witness claimed he could not recall, this court wrote, in pertinent part: - 26 - “The confrontation clause is not violated by admitting a declarant’s out-of- court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination. [Fensterer, 474 U.S. at 20; Green, 399 U.S. at 158.] Contrary to the defendant’s assertions, a gap in the witness’ recollection concerning the content of a prior statement does not necessarily preclude an opport

2025In holding that the confrontation clause was not violated by admission of the grand jury testimony that the witness claimed he could not recall, this court wrote, in pertinent part: - 26 - “The confrontation clause is not violated by admitting a declarant’s out-of- court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination. [Fensterer, 474 U.S. at 20 ; Green, 399 U.S. at 158 .] Contrary to the defendant’s assertions, a gap in the witness’ recollection concerning the content of a prior statement does not necessarily preclude an oppo

2026Flores, 128 Ill. 2d at 88-90 . ¶ 123 Here, Fenderson was subject to cross-examination for the purposes of both section 115- 10.1 and the confrontation clause.

2025The appeals court disagreed, citing Owens and noting that “[t]he Supreme Court’s point was that the confrontation clause (and the rule) are satisfied when the witness must look the accused in the eye in court; shortcomings in the declarant’s memory may be made known to the jury.” Id. ¶ 39 In Flores, 128 Ill. 2d at 79 (also discussed earlier in this order), the trial court admitted a witness’s prior grand jury testimony implicating him as the shooter.

2019Because she was present for cross-examination and answered defense counsel's questions, the confrontation clause places absolutely no constraints on the use of M.S.'s prior statements * * *. * * * For purposes of the confrontation clause, because M.S. 'appeared' for cross-examination at trial within the meaning of Crawford , any of her prior statements offered at trial is a nonevent." Id.

2019Because she was present for cross-examination and answered defense counsel’s questions, the confrontation clause places absolutely no constraints on the use of M.S.’s prior statements ***. *** For purposes of the confrontation clause, because M.S. ‘appeared’ -6- for cross-examination at trial within the meaning of Crawford, any of her prior statements offered at trial is a nonevent.” Id.

2025(Emphasis added.) While our analysis is not a confrontation clause analysis, the Supreme Court’s definition of appearance is equally applicable here.” Learn, 396 Ill. App. 3d at 899 (specifically emphasizing that the declarant must “defend or explain” the out-of-court statement). ¶ 61 Notably, the Second District in Learn announced that its analysis was “not a confrontation clause analysis.” Id.

2025The appellate court reviewed the Second District’s decision in People v. Learn, 396 Ill. App. 3d 891, 900 (2009) (appellate court found that the admission of out-of-court statements describing sexual abuse was error because, in failing to accuse defendant of the sexual abuse during her trial testimony, the victim did not testify for purposes of section 115-10 or the confrontation clause).

2026He argues that the court’s potential consideration of the text messages implicates the concerns raised in Bruton v. United States, 391 U.S. 123, 137 (1968), which held that, in a joint jury trial, the admission of an out-of-court statement by a non-testifying codefendant violates the confrontation clause where it 23 implicates the defendant.

2021Further, “a defendant’s claim that his right to confrontation was violated is a question of law subject to a de novo review.” Id. ¶ 28. ¶ 79 To support his assertion of a confrontation-clause violation, defendant primarily relies on Bruton v. United States, 391 U.S. 123 (1968).

2013Second, Justice Thomas, a deciding vote, wrote a concurrence distancing himself from consideration of the purpose of the out-of-court statement and repeating his prior position that the confrontation clause is implicated only by extrajudicial statements “ ‘contained in formalized testimonial materials.’ ” Id. at 329 (Thomas, J., concurring) (quoting White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring in part and concurring in the judgment, joined by Scalia, J.)). ¶ 53 In Bullcoming v. New Mexico, 564 U.S. ___ , 131 S. Ct. 2705 (2011), the Supreme Court considered whether a defe

2012Laws ch. 111, § 13 ). ¶ 94 Justice Thomas again concurred, distancing himself from consideration of the purpose of the out-of-court statement and repeating his position that the confrontation clause is -15- implicated only by extrajudicial statements that are “ ‘contained in formalized testimonial materials.’ ” Id. at 329 (Thomas, J., concurring) (quoting White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring in part and concurring in the judgment, joined by Scalia, J.)). ¶ 95 Justice Kennedy wrote in dissent, joined by three other justices.

2025I, § 8; Crawford v. Washington, 541 U.S. 36, 54 (2004); Pointer v. Texas, 380 U.S. 400, 403 (1965) (holding that the confrontation clause is applicable to the states via the fourteenth amendment).

2016VI (providing, "[i]n all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him"); Pointer v. Texas, 380 U.S. 400, 403 (1965) (applies to both federal and state prosecutions); People v. Williams, 238 Ill. 2d 125, 142 (2010) (providing the confrontation clause applies to the states through the fourteenth amendment (citing U.S. Const., amend XIV)).