More than 200 new Illinois laws scheduled to take effect on Jan. 1. Here are the new laws governing Crime, Courts, Corrections and Law Enforcement in Lake County, Illinois:
- Child Abuse by Professionals (SB 1763/PA 99-0350): Clarifies definitions to include situations where a person who is acting in a professional capacity abuses or neglects a child.
- Abused Adult Records Access (SB 1309/PA 99-0287): Gives a Public Guardian access to records regarding investigations of abuse, neglect, financial exploitation or self-neglect of eligible adults when the Public Guardian is investigating the need for a guardianship or pursuing a petition for guardianship.
- Abused Children Protection Orders (SB 1335/PA 99-0349): Provides that the parties to the proceedings are also entitled to copies of unfounded reports.
- AED Mandate (SB 764/PA 99-0246): Requires sheriff’s offices and municipal police departments that employ over 100 police officers comply with the AED Act and be equipped with an AED.
- Body Cameras (SB 1304/PA 99-0352): Establishes rules and regulations for the use of officer-worn body cameras and implements a package of police reforms. Police reforms: Prohibits police from using chokeholds, except when deadly force is justified; requires an independent review of officer-involved deaths, and makes investigation reports part of the public record if an officer involved in a death is not charged with a crime; expands police officer training to include topics like use of force; creates a database of officers who have been fired or resigned due to misconduct. Body camera regulations: Does not require police departments to use body cameras. If they choose to do so, officers must keep their cameras on when conducting law enforcement activities. Officers would be allowed to turn the camera off when talking to a confidential informant, or at the request of a victim or witness. Requires officers to let people know they are recording if they enter a home. Videos will be kept for 90 days, unless flagged for specific reasons. Allows for grants via a $5 fee increase for each $40 on criminal and traffic offenses, to go toward cameras and new training.
- Coroner Training Board (SB 663/PA 99-0408): Creates the Coroner Training Board Act and Transfers the oversight of coroner training from the Law Enforcement Training Standards Board to a new Coroner Training Board the authority to conduct and approve a training program in death investigations.
- County Jail “Good Time” Sentencing (HB 3785/PA 99-0259): Changes existing provision that no committed person may be penalized more than 30 days of good behavior allowance for any one infraction by providing that if the infraction is the second or subsequent infraction within any 30-day period, then the committed person may not be penalized more than 60 days of good behavior allowance.
- Court Interpreters for Civil Cases (HB 3620/PA 99-0133): Requires appointment of language interpreters for witnesses and parties in civil cases, if necessary.
- Court Services Fee (SB 804/PA 99-0265): Allows counties to impose a higher court services fee (now maximum of $25) if the fee is supported by an acceptable cost study. The fee must be used to defray court security expenses.
- Court Supervision for Aggravated Speeding (HB 1453/PA 99-0212): Provides that a defendant charged with speeding 26 miles per hour or more in excess of the applicable speed limit may be eligible for court supervision if the defendant has not been previously convicted for a similar offense or previously assigned court supervision for a similar offense.
- Crime Victims Debt Collection (SB 1866/PA 99-0444): Amends the Crime Victims Compensation Act to prevent a vendor who has been provided notice of a claim filed under the Act from engaging in debt collection activities against the applicant until the Court of Claims awards compensation for the debt and the payment is processed. “Debt collection activities” does not include billing insurance or other government programs, routine inquiries about coverage, or routine billing that indicates that the amount is not due pending resolution of the crime victim compensation claim.
- Domestic Violence Sentencing Consideration (SB 209/PA 99-0384): Adds a history of domestic violence to the list of mitigating factors for judges to consider during sentencing. Creates a process for courts to review petitions for re-sentencing for certain offenses committed by a victim of domestic violence who was unable to present evidence of domestic violence at trial.
- Discovery (HB 95/PA 99-0110 – Sen. Michael Connelly): Provides that discovery in civil cases, such as admissions of fact and of genuineness of documents, physical and mental examinations of parties and other persons, the taking of any depositions, and interrogatories shall be in accordance with rules.
- DUI-related Safety Provisions (SB 627/PA 99-0467): Makes several recommendations based on the Traffic Safety Advisory Committee. Changes include the following:
- Requires certain individuals suspected of consuming alcohol to sign the written warning from law enforcement.
- Removes “hard time” provisions which currently prohibit driving relief for DUI offenders, and instead allow offenders to apply for a Monitoring Device Driving Permit or Restricted Driving Permit, with a Breath Alcohol Ignition Interlock Device.
- Requires any offender with two+ DUI or reckless homicide convictions to install a BAIID as a condition of a Restricted Driving Permit.
- Requires a BAIID, as a condition of a RDP, if the offender is convicted of DUI involving death, great bodily harm or permanent disability or disfigurement to another.
- Elderly Exploitation Civil Action (HB 1588/PA 99-0272 – Sen. Jason Barickman): Changes the civil liability provision of financial exploitation of an elderly person or a person with a disability to allow for a civil cause of action regardless of whether criminal charges have been filed. Civil liability provision does not limit or affect the right of a person to bring a cause of action or seek any remedy available under the common law, or other applicable law.
- Facilitated Courtroom Testimony (SB 1389/PA 99-0094): Allows the court to set conditions it finds just and appropriate, including the use of therapy and service animals, for taking the testimony of a child victim or disabled victim in certain sex offense cases.
- False 9-1-1 Call (HB 3988/PA 99-0160 – Sen. Michael Connelly): Requires reimbursement where a person makes a false 9-1-1 call knowing there is no reasonable ground for making the call or transmission and further knows that the call or transmission could result in the emergency response of any public safety agency. Caps reimbursement at $10,000.
- First Responder Assault Penalties (HB 3184/PA 99-0256): Enhances the penalty for aggravated assault of a peace officer, fireman, emergency management worker, or emergency medical technician.
- Foreclosure Special Representative (SB 735/PA 99-0024): Adds conveyances under a transfer on death instrument, conveyances where title was transferred prior to death, and where title was conveyed from the deceased’s probate estate to foreclosure cases where the court is not required to appoint a special representative for a deceased mortgagor.
- Foreign Affairs Officers Arrests (HB 1337/PA 99-0190): Provides that the new consular notification mandate does not create any affirmative duty to investigate whether an arrestee or detainee is a foreign national.
- Gender Identity Protection (HB 3552/PA 99-0417): Provides that the written directions a person leaves regarding disposition of that person’s remains may include instructions regarding gender identity including, but not limited to, instructions with respect to appearance, chosen name, and gender pronouns, regardless of whether the person has obtained a court-ordered name change, changed the gender marker on any identification document, or undergone any transition-related medical treatment.
- Good Conduct Time Sentencing (HB 3475/PA 99-0381): Amends the Unified Code of Corrections by expanding who may be eligible for certificates of good conduct to include persons convicted of committing or attempting to commit a Class X felony or a forcible felony (other than certain offenses currently specifically excluded in statute).
- Good Conduct Sentencing Credit (HB 3884/PA 99-0241 – Sen. Michael Connelly): Gives an additional 30 days of sentence credit to any prisoner who passes their high school equivalency testing while in the Department of Corrections or while they are being held in pre-trial detention (county jail) prior to the current commitment to the Department of Corrections.
- IDOC Parolee Information (HB 2722/PA 99-0275 – Sen. Michael Connelly): Helps protect the privacy of rehabilitated inmates seeking to reenter society because of (1) witness protection issues and gang affiliation/retaliation when an inmate is released. This bill does not affect separate victim notification requirements when an offender is released.
- Juries – Removal and Disability (HB 3704/PA 99-0102 – Sen. Michael Connelly): Provides additional means of establishing a total and permanent disability for purposes of a prospective juror seeking a permanent exclusion from jury service (an individualized education program plan or proof of a guardianship).
- Juvenile Justice Councils (HB 3718/PA 99-0258): Eliminates provisions in the Juvenile Court Act of 1987 that require automatic prosecution of minors as adults. Eliminates mandatory and presumptive transfers to adult criminal prosecution. Retains discretionary (judicial) transfer provisions.
- Juvenile Justice Councils (HB 4044/PA 99-0435): Amends the Juvenile Court Act of 1987 by expanding entities who may designate representatives to serve on county juvenile justice councils. This will add additional community-based perspectives to the juvenile justice councils.
- Juvenile Justice Reforms (SB 1560/PA 99-0268): Prevents juvenile misdemeanants from Department of Juvenile Justice (DJJ) commitment, suspends automatic custodianship of DJJ for aftercare (parole) violators if they have new adult criminal charges pending, and adjusts length of aftercare time to be proportional with length of adult parole.
- Juvenile Justice Reports (HB 3141/PA 99-0255 – Sen. Dale Righter): Amends the Unified Code of Corrections by adding a new section that clarifies the reporting requirements of the Department of Juvenile Justice to the Governor and General Assembly. Provides a due date of Jan. 1.
- Law Licenses for Non-Citizens (SB 23/PA 99-0419): Asks the Illinois Supreme Court to grant law licenses to non-citizens provided certain conditions have been satisfied related to the recently enacted federal “Deferred Action for Childhood Arrivals” program.
- Lifetime Sentences for Juveniles (HB 2471/PA 99-0069): Aligns Illinois’s criminal statutes with a U.S. Supreme Court ruling that found automatic mandatory life sentences for juveniles to be unconstitutional. Grants judges leeway to determine whether such a sentence is warranted and allows judges to lengthen or shorten a sentence depending on whether a firearm or automatic weapon was used in a capital crime.
- Minors in Detention Facilities (HB 2567/PA 99-0254): Prohibits a delinquent minor younger than age 13 from being admitted, kept, or detained in a detention facility unless a local youth service provider has first been contacted and is not able to accept the minor.
- Missing Persons Identification Act Changes (HB 4097/PA 99-0244 – Sen. Kyle McCarter): Prohibits law enforcement agencies from refusing to accept a missing person report on the basis of the missing person’s mental state or medical condition.
- Mental Health Fitness Ability to Stand Trial (SB 1938/PA 99-0140 – Sen. Tim Bivins): Amends the Code of Criminal Procedure relative to defendants found unfit to stand trial by making sure that the reports of forensic examiners working for circuit courts are also provided to the Department of Human Services (DHS) in conjunction with the judge’s order remanding the unfit defendant to a DHS facility for treatment.
- Mistaken Arrest Records (HB 169/PA 99-0363): Requires, if a person has been arrested for a criminal offense based upon mistaken identity, the law enforcement agency whose officers made the arrest to delete or retract the arrest records of that person.
- Orders of Protection Process (HB 3161/PA 99-0240): Prohibits a special process server from being appointed in Cook County if the order of protection to be served grants the surrender of a child, the surrender of a firearm or firearm owner’s identification card, or the exclusive possession of a shared residence.
- Out-of-State Subpoenas (SB 45/PA 99-0079 – Sen. Jason Barickman): Creates a simple process for civil cases by which a subpoena from an out-of-state court can be used to issue a discovery subpoena in Illinois.
- Police Crisis Intervention (HB 4112/PA 99-0261): Provides that the Law Enforcement Training and Standards Board (LETSB) will create a standard curriculum in crisis intervention and specialized policing responses to mental illness. Requires LETSB to conduct Crisis Intervention Team Training.
- Powdered Alcohol Ban (SB 67/PA 99-0051): Prohibits the sale of products consisting of or containing powdered alcohol in Illinois by creating a Class A misdemeanor for a violation and a Class 4 felony for a second or subsequent violations.
- Powdered Caffeine Prohibition (SB 9/PA 99-0050): Prohibits the sale or offering of powdered pure caffeine to anyone younger than age 18.
- Power of Attorney (SB 159/PA 99-0328): Makes technical changes to the Illinois Power of Attorney Act relative to health-care powers of attorney.
- Preservation and Delivery of Evidence (HB 233/PA 99-0354 – Sen. Tim Bivins): Requires the County Coroner to properly preserve evidence from a death investigation if appropriate equipment is available and release it to the investigating agency no later than 30 days after collection. Requires the police agency receiving that evidence to submit the specimens to a National DNA Index System participating laboratory within the state.
- Probate Citations Recover (SB 1308/PA 99-0093): Allows the court to issue a citation, pursuant to any civil cause of action, for the appearance of any person who may have had assets in his or her possession and of any person who may be liable to the estate of a ward.
- Probate Disabled Persons Wills (SB 90/PA 99-0302): Establishes a rebuttable presumption that a will or codicil is void if it was executed or modified after the testator is adjudicated disabled and either a plenary or limited guardian has been appointed and the court has found that the testator lacks testamentary capacity.
- Probate Temp Adult Guardians (HB 2505/PA 99-0070): Amends the Probate Act to provide that a temporary guardian of a disabled adult shall have the limited powers and duties of a guardian of the person or of the estate which are specifically enumerated by court order.
- Prostitution (SB 201/PA 99-0347): Makes it an aggravating factor in promoting juvenile prostitution, patronizing a prostitute, or patronizing a minor engaged in prostitution knowing that the minor was in the custody or guardianship of the Department of Children and Family Services.
- Same Sex Hate Crimes Definition (HB 3930/PA 99-0077): Changes definition of “sexual orientation” in the hate crime statute, the institutional vandalism statute, and the statute concerning aggravating factors in sentencing to the definition used in the Illinois Human Rights Act. Amends the offense of institutional vandalism by replacing the term “sexual orientation” with “ancestry, gender, sexual orientation” and “physical or mental disability.”
- Scott’s Law Changes (SB 1424/PA 99-0125): Adds recycling vehicles to vehicles covered under Scott’s Law.
- Sealing of Criminal Records (HB 3149/PA 99-0378): Allows a person who earned a high school diploma, associate’s degree, vocational technical certification, or bachelor’s degree, or GED during the period of his or her sentence or mandatory supervised release to petition for early sealing of the record prior to the applicable waiting period.
- Sealing of Criminal Records (SB 844/PA 99-0385): Allows for sealing of certain eligible criminal records in two years (rather than three years or four years) and other records including eligible felonies in three years (rather than four years) after the end of the case.
- Sexual Abuse (SB 207/PA 99-0283): Makes it an aggravating factor in sentencing for certain sex offenses committed against a victim with an intellectual disability and the defendant holds a position of trust, authority or supervision in relation to the victim.
- Statute of Limitations Suspensions for Sexual Assault Evidence Kits (HB 369/PA 99-0252): Tolls the statute of limitation period for charging a sex crime from the time evidence of a sexual assault is collected and submitted by a law enforcement agency until the completion of the analysis of the Illinois State Police.
- Synthetic Drug Classification (SB 1129/PA 99-0371 – Sen. Kyle McCarter): Gives law enforcement a new tool in combating the sale, distribution and possession of synthetic drugs by banning their underlying chemical structure.
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It’s not unusual for police officers to be filmed by people with cellphones during a traffic stop nowadays, but police throughout Lake County may be wearing body cameras to monitor interactions as soon as this fall in Round Lake Park, and other departments are not far behind.
From Round Lake Park to Round Lake and Mundelien to the Lake County Sheriff’s Office, municipalities and their police departments are moving ahead with body cameras.
“This is definitely the wave of the future and something that’s needed,” Lake County State’s Attorney Michael Nerheim said. “Body cameras are a type of evidence and the more evidence we have in any case the better.”
Gov. Bruce Rauner last week signed legislation that lays out the rules for police body cameras in Illinois, making it only the third state in the country to establish such rules, according to an Associated Press analysis. While it does not mandate body cameras, although there was legislation floated that would have done just that, it does specify how they will be worn, when they have to be turned on and how long the recordings must be kept as evidence.
It also established a grant program funded by a $5 addition to traffic tickets to help police departments buy the body cameras.
“They are going to be involved in every case, even misdemeanors,” Nerheim said. “You’re going to see footage on every single case.”
Nerheim said his office is working with the more than 40 police departments in Lake County on uniformity. If each department operated on a different system, that could pose a problem for his office, which would handle the recordings in court.
“It’s important we are part of the process,” he said.
Round Lake Park Police Chief George Filenko said if everything goes as planned his department will be ready to roll out the body cameras by mid September.
“It’s logical we’re doing this,” he said, “We decided this was the way to go.”
The village has purchased 6 4RE in-car systems with panoramic HD cameras and 13 VISTA HD body-worn cameras that have adjustable lenses so officers can adjust them according to their height. The total cost was approximately $57,000, which also includes a server and needed software.
For Patrol Officer Donna O’Brien, the body camera, which uses industrial strength magnets to hold it in place, is a good thing.
“I prefer them,” she said, “It’s good to have one more form of evidence to back up the truth.”
“I also think it’s good tool for training. I can review how I walked up to a vehicle during a traffic stop or person and see how I might of done it differently,” or see something that may have put her in danger, but she didn’t realize it at the time, she said.
“It will keep me on my toes, but I always act professionally,” she said.
Filenko said the response of his officers has not been “why do we need them,” but “when are we getting them.”
“In my opinion this is going to become standard, it may even be mandatory eventually,” he said. He knew two years ago they were going to need new squad car videos and he thought of incorporating the body cameras with that new system.
“It’s still not going to replace the human eye,” he said, but in the worse-case scenario, an officer involved shooting, “the more video the better,” said Filenko, who is in charge of the Major Crime Task Force that is called in to investigate those shootings.
Round Lake Police Chief Michael Gillette said his mayor and trustees wanted to get ahead of the curve and be pro-active. “I’m proud of the board and the mayor for letting us do that,” he said of their purchase of 15 FirstVu HD cameras from Kansas-based Digital Ally, at a cost of $13,800.
“We feel it’s a good tool for the officers to put together a solid case,” he said, “and of course it would be used in allegations of misconduct. I think they are really good tools.”
Bigger departments have bigger problems with figuring out the financing, but the Waukegan Police Department is “aggressively” researching different models, according to Cmdr. Joe Florip.
“We need to see what will work best (for the 80 patrol officers and 20 patrol cars). We’re excited as an organization to get body cameras. We think it’s best for our community and the police department,” he said.
“It’s priceless when it comes to a citizen complaint. There’s nothing like pulling up a video,” he said, noting that sometimes they can do that now from dash cameras and sometimes residents see their actions in a different light.
The Lake County Chiefs Association, headed by Highland Park Chief Paul Schafer, said they are getting more inquiries from other chiefs about body cameras. There still needs to be a lot of policy work, such as how to handle Freedom of Information requests, obscuring juvenile or witness faces from the video and other issues and having the personnel able to do that.
“There’s a lot of implementation with this new technology that the chiefs are taking a look at,” he said. They plan to have it on their agenda for the September meeting.
Other departments like Round Lake Beach are just starting to look into it, partly because of the funding mechanism included in the bill the governor recently signed. For some departments it would be hard to afford and they want to make sure they get the right equipment.
“We want it done right the first time,” said Police Chief Dave Hare. But he believes they will benefit police and the community.
“Transparency is a good thing for the community and body camera play into that,” he said
April 2016 Illinois Criminal Case List DUI | Appeal Prosecutor on this aggravated DUI represented defendant when he was charged with his first DUI.People v. Kibbons Is this a conflict of interest? Well the defense argued that his plea should be vacated because there was a per se conflict of interest on the part of the State’s Attorney, a violation of the Illinois Rules of Professional Conduct, and violations of the Illinois constitution. However, the court did not reach the merits of the claim. The defendant did not file a notice of appeal within 30 days of the denial of the motion to reconsider his plea. Instead, he filed what he should have filed initially, that being a motion to vacate his guilty plea under Rule 604(d). While that motion was filed while the trial court still had jurisdiction, it was not a timely motion under Rule 606(b), and we have no discretion to forgive the defendant’s failure to comply with the rule. See People v. Salem, 2016 IL 118693, ¶ 19 (motion for a new trial, filed within 30 days of sentencing but not within 30 days of the verdict, was not a timely motion to extend the time to appeal under Rule 606(b); to hold otherwise would render the term “timely” in 606(b) meaningless). Since the notice of appeal was untimely, the court lacked lack jurisdiction over the appeal. Go to case. Sex Case | Other Cries Was it error for the judge to admit other crimes evidence from other patients?People v. Arze Defendant was a family physician convicted of aggravated criminal sexual assault for forcibly having sexual intercourse with a patient during treatment. The trial judge observed that the women at issue were in the same age range and all had been diagnosed with depression, although the other crimes occurred during other types of treatments. Each incident occurred when the women were partially undressed. Two of the women testified to observing defendant’s erection during the incidents. In each case, defendant touched the vaginal area. The women each had said “no” or otherwise indicated the behavior was inappropriate. The incidents also occurred when defendant was in close proximity to the women on an examination table. In 1 Illinois, however, our legislature has chosen to provide a limited exception to this general rule of inadmissibility for othercrimes evidence intended to show the defendant’s propensity to commit crimes.” “If a defendant is tried on one of the enumerated sex offenses, section 1157.3(b) of the Code [citation] allows the State to introduce evidence that the defendant also committed another of the specified sex offenses.” Our supreme court has upheld the constitutionality of section 1157.3. In this case, all the victims had the same relationship to defendant, i.e., the doctorpatient relationship. The evidence demonstrated that the women were in the same age range and all had been diagnosed with depression, although the other crimes occurred during other treatments. Each incident occurred in defendant’s examination rooms, when the women were partially undressed. Two of the women testified to observing defendant’s erection during the incidents. In each case, defendant touched the vaginal area. The women each had said “no” or otherwise indicated the behavior was inappropriate. The incidents also occurred when defendant was in close proximity to the women who were on an examination table. The fact that this victim alleged forced sexual intercourse, while the two other crimes victims alleged lesser forms of sexual misconduct, is insufficient to conclude that the trial judge abused her discretion. Finally, the case lays the proper procedure for a court to follow when a defendant is asking for medical records of a victim. Go to case. Evidence | 115‐10 Statement | Sex Case Defendant is convicted on two counts of predatory criminal sexual assault based on the child’s testimony and her 11510 statement. People v. Johnson The child testified that her father licked his fingers and inserted them into her private part. In the recorded statement she also said that he put his private part in her private part, but on the stand she only testified to the digital penetration. The 11510 statement is substantive so defendant was properly convicted on both counts. In Crawford, the Court dispensed with the “amorphous notions of ‘reliability’ ” that governed the Roberts Court’s confrontation clause analysis. Instead, the Court held that, regardless of a statement’s reliability, the confrontation clause bars the admission of any outofcourt statement that is “testimonial,” unless (1) the statement’s declarant is unavailable and (2) the defendant was afforded a prior opportunity for cross examination. Therefore any case law before Crawford suggesting that 11510 statements need to be narrowly construed are now rejected. Section 11510 requires the trial court to “find” that “the time, content, and circumstances of the statement provide sufficient safeguards of reliability.” 725 ILCS 5/115 10(b)(1). The statute does not require that those findings be made in writing, nor does it require those findings to contain any specific level of detail. The court merely tracked the language of the statute and that was found to be sufficient. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 2 Evidence | Other Crimes | Domestic Violence Case Other crimes of a domestic nature are admissible in a general crime that is motivated by domestic violence. People v. Nixon In this trial for aggravated discharge of a firearm and being an armed habitual criminal other crimes evidence of a domestic nature was admitted. The case involved defendant taking shots at the tires of the car of his ex girlfriend and mother to his two children. The victim had fled to Wisconsin and the state had jail phone calls indicating the defendant had something to do with the victim being unavailable for trial. Nonetheless, the State is allowed to admit evidence that defendant had shot her before and also is allowed to admit her hearsay statement of the incident where her tires were shot. Othercrimes evidence is admissible to prove propensity as provided in sections 1157.3, 1157.4, and 11520 of the Code (725 ILCS 5/115 7.3, 1157.4, 11520 (West 2012)). See Ill. R. Evid. 404(b). The trial court also found that evidence of the 2006 shooting was admissible as propensity evidence pursuant to section 1157.4 of the Code (725 ILCS 5/1157.4 (West 2012)), which allows the admission of othercrimes evidence in domesticviolence cases. Section 103(3) of the Act defines “domestic violence” as “abuse.” 750 ILCS 60/103(3). “Abuse,” in turn, is defined as “physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation.” 750 ILCS 60/103(1). Contrary to defendant’s argument, the evidence surrounding the charged offenses establishes that the 2012 shooting constituted an act of domestic violence as that term is defined in the Act. First, the car shooting shooting constituted “physical abuse.” For purposes of section 1157.4 of the Code (725 ILCS 5/1157.4), “physical abuse” includes “knowing or reckless use of physical force” as well as “knowing or reckless conduct which creates an immediate risk of physical harm” (750 ILCS 60/103(14). The car shooting constituted knowing or reckless conduct creating an immediate risk of physical harm because the gun was fired in the direction of the house which had people in it. See People v. Garcia, 407 Ill. App. 3d 195, 20102 (2011) (discussing harm created by act of firing bullets in the direction of an occupied building). Therefore, it constituted “physical abuse” as defined in the Act. Defendant’s conduct on the day of the shooting also constituted “harassment” as that term is defined in the Act. “Harassment” is “knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the [victim].” Here, the evidence presented at trial clearly established that defendant’s conduct in the hours leading to the car shooting subjected the victim to “harassment.” The evidence of the 2006 shooting established defendant’s continuing animosity toward her, his intent to harm her, and a motive—defendant’s desire to assert control over his relationship with her. Additionally, The doctrine of forfeiture by wrongdoing is a commonlaw doctrine. People v. Hanson, 238 Ill. 2d 74, 96 (2010); People v. Peterson, 2012 IL App (3d) 100514B, ¶ 20. Under this doctrine, “one who obtains the absence of a witness by wrongdoing April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 3 forfeits the constitutional right to confrontation.” The Illinois Supreme Court has also recognized that the doctrine serves both as an exception to the hearsay rule and to extinguish confrontation claims. Illinois Rule of Evidence 804(b)(5) provides an exception to the rule against hearsay for “[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” Ill. R. Evid. 804(b)(5) When the State raises the doctrine of forfeiture by wrongdoing, it must prove both the wrongdoing and the intent to procure the unavailability of the declarant. The telephone conversations between defendant and others show a concerted effort on the part of defendant and others to ensure that the victim did not testify or appear in court. Go to case. Trial | Batson Challenge Trial court properly accepted race neutral reasons for excluding minority jury members. People v. Shaw Defendant is African American and was on trial for drug charges. The prosecution excluded two African Americans from the jury. The State said that when the question came up could you find the defendant guilty, there was a juror with a long pause, there was a look, the Court actually had to repeat the question. In regards, to the second African American the state recalled that it had initially sought to remove her for cause because she was friends with defendant’s cousins and nieces. In addition, the State noted her boyfriend had pending cases and was represented by the public defender’s office. The trial court found that defendant has not shown purposeful discrimination. The Court found that the prosecutor was credible and that the prosecutor’s demeanor did not show discriminatory intent, but merely showed strategic decisions. Furthermore, the reviewing court found the trial court was justified in finding that both jurors demonstrated demeanor that exhibited the basis for the strike by the prosecutor. Go to case. Trial | Sufficiency of the Evidence Out of control 2 year old rescues defendant from a conviction for contributing to the delinquency of a child. People v. Gharrett Defendant was at the SOS office so his newlywed could change her name. When his 2 year old step daughter ran into the back office, defendant followed to retrieve her. On his way out he snatches a bundle of cash and checks in a desk drawer. It’s all on video. He is convicted of 12 April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 4 years for burglary and 10 years for contributing to the delinquency of a child. A person commits contributing to the criminal delinquency of a child when they, a person 21 years of age or older, “with the intent to promote or facilitate the commission of an offense solicits, compels or directs a minor in the commission of the offense that is *** a felony when the minor is under the age of 17 years ***.” 720 ILCS 5/12C30(b)(i). The video shows defendant leaning in to talk to the child. The state argued he told her to run toward the office, which allowed defendant to enter the office and commit a theft without raising the suspicions of the SOS employees. The kid was basically running around everywhere. Previously, she wandered all over the SOS building and, in particular, into the office without any prompting from defendant. Given that context, the evidence was insufficient to prove beyond a reasonable doubt that the child’s running to the office area was the result of defendant’s directing her to do so. Additionally, lay witness opinion testimony was admitted that allowed a witness to describe what was depicted in the video. Namely that defendant was carrying an object in his right hand that was “consistent with the pile or wad of cash and checks”. Go to case. Trial | Shackling | Sex Case | Other Crimes Shackling of defendant during bench trial in this child sex case leads to reversal.People v. Williams In general, shackling the accused should be avoided. People v. Boose, 66 Ill. 2d 261, 265 (1977). A defendant may be shackled when there is reason to believe that he may try to escape or that he may pose a threat to the safety of people in the courtroom or if it is necessary to maintain order during the trial. Although the possibility of prejudicing the jury is a factor to be considered, the reasons for forbidding shackling are not limited to trials by jury. Here, there is no indication that the trial court conducted a Boose analysis before keeping the defendant in shackles during his trial. Thus, the defendant proved a due process violation which amounted to error by showing that he was required to be restrained without the court having first determined that it was necessary. Reversal is required because this was a close case and there is no indication that the the trial court conducted any type of a Boose hearing. In fact, the trial court suggests that the defendant was in shackles due to a blanket policy of the court. Since there was no evidence of any threats or disturbances in the record, the trial court made the statement that suggests a blanket policy, and there was no hearing for which we can remand for a more complete record, we reverse and remand for a new trial. Also, this child is allowed to testify in the judge’s chambers which could also have been a problem. 725 ILCS 5/11511 permits a limited closure of a courtroom during the testimony of minors who are the victims of certain sex crimes. See also People v. Falaster, 173 Ill. 2d 220, 226 (1996). The trial court must make a April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 5 finding that anyone with an interest in the case would also be allowed to go into chambers for the testimony. Go to case. Defense | Compulsion No ineffective assistance of counsel for failing to instruct the jury on compulsion. People v. Orasco This was a murder and attempt murder conviction. It’s robbery in the victim’s home and they are executed to prevent them from calling the police. Female victim, however, does not die as the bullet remains lodged in her head. Defendant claimed in his police interview that the codefendant made him do it, by pointing the gun at him and threatening to kill him if he tried to run or told police. Trial strategy focused on claiming elements of accountability were not met then pivoted to an argument that defendant only acted out of fear for his own life. The affirmative defense of compulsion is available when a defendant has committed criminal acts under a reasonable belief that death or great bodily harm would be inflicted upon him if he refused to commit the acts. 720 ILCS 5/711. Here, counsel’s failure to tender an instruction did not prejudice defendant. The evidence did not establish that defendant committed the acts constituting any of his offenses under threat of great bodily harm or death. Further, any potential compulsion arose from the fault of defendant. Finally, Defendant failed to withdraw from the criminal enterprise when he had the perfect opportunity to do so. Go to case. Gun | Armed Habitual Conviction Attempted residential burglary is not a forcible felony that can be used to sustain an armed habitual criminal conviction. People v. Sanderson The Code defines “forcible felony” as follows: “[T]reason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual.” An unenumerated felony falls within the residual clause if the defendant “contemplated that the use of force or violence against an individual might be involved and [was] willing to use such force or violence.” (Emphasis in original.) People v. Belk, April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 6 203 Ill. 2d 187, 196 (2003). But the defendant need not actually inflict physical injury. Additionally,because every attempted murder involves a specific intent to cause death, the trier of fact who finds a person guilty of attempted murder must find that the guilty person contemplated the use of sufficient force to cause very serious injury, injury that can lead to death. Accordingly, the court held that every attempted murder qualifies as a forcible felony for purposes of the armed habitual criminal statute. A felony can qualify as a forcible felony, even if a crime does not have violent intent as an element, is if the State proves that under the particular facts of this case, the defendant contemplated the use of force and was willing to use it. Defendant’s conviction for attempted residential burglary is neither by definition nor by circumstance a forcible felony. None of the elements of attempted residential burglary requires that the defendant contemplate the use of violence. Second, there is no evidence that, under the particular facts of this case, Defendant contemplated the use of force. Go to case. Procedure | Conflict of Interest | Corrupt Judge Postconviction petition alleging corrupt trial judge is dismissed. People v. Gacho The trial judge conducting this murder trial actually was convicted of accepting bribes. However, defendant’s case was not a “fixed” case. The gist of the claim was that a codefendnat paid the judge $10,000 for a not guilty in his case. If true that meant the judge could not be fair in defendant’s case. Also, defendant said he could not raise $60,000 to pay the judge and because of that the judge could not have been fair. In sustaining the dismissal of this postconviction petition the reviewing court found that defendant failed to produce any direct evidence that the judge was, in fact, bribed by the codefendant. The trial attorney denied that he ever talked to defendant or his family about a $60,000 bribe & defendant’s story about the codefendant saying he paid $10,000 but got convicted anyway also does not add up. If the judge possessed a pecuniary interest in the outcome of the defendant’s trial, the defendant would be entitled to relief under the Act in the form of a new trial. Defendant did not prove this up sufficiently. The fact that the judge was bribed in some cases does not establish that he was not impartial in others. The judge’s pattern of bribe taking cannot alone support an inference that he engaged in compensatory bias in the defendant’s case. A defendant must still “who alleges that his trial judge’s corruption violated his right to a fair trial must establish (1) a ‘nexus’ between the judge’s corruption or criminal conduct in other cases and the judge’s conduct at [the defendant’s] trial; and (2) actual bias resulting from the judge’s extrajudicial conduct.” See the dissent for a strong counter argument. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 7 Procedure | Statute of Limitations Does the statute of limitations bar a charge of violation of bail bond when defendant is apprehended 18 years later?People v. Casas No it doesn’t. Defendant was on the lamb for 18 years for a drug case. He came back and was arrested, sentenced to 20 years on the drug thing, and then charged with violation of his 1996 bail bond. 720 ILCS 5/3210(a). Most felony offenses must be charged “within 3 years after the commission of the offense.” 720 ILCS 5/35. A continuing offense tolls the threeyear limitations period as follows: “When an offense is based on a series of acts performed at different times, the period of limitation prescribed by this Article starts at the time when the last such act is committed.” 720 ILCS 5/38. According to the State, the limitations period was tolled when the offense was initially committed, and began to run once defendant was taken into custody. This court said that the legislature intended that, like escape, violation of bail bond would be treated as a continuing offense. Like escape, wherever else the bailbond offender is, he is not where he is lawfully supposed to be; he has breached his lawful custody. People v. Grogan, 197 Ill. App. 3d 18 (1st Dist. 1990) was wrong. Any other ruling would give defendant an unmerited winful in that it would encourage a defendant “to remain in hiding until the threeyear statute of limitations had expired” and the underlying case itself could be weakened. Go to case. Procedure | Speedy Trial What happens when defendant demands a trial within 120 days but continues to file motions? People v. Lilly Although, defendant was adamant about wanting his 120 days, he also was pretty persistent with his pro se motion filing. “For purposes of a speedytrial question, a delay is charged to [a defendant] where his act in fact causes or contributes to the delay.” Further, our supreme court has held that where a defense attorney requests or agrees to a continuance on behalf of a defendant, the resulting delay is attributable to the defendant even if the defendant did not agree with the continuance. Here, a new public defender was appointed to represent defendant and he simply could not be ready for trial on the date that already had been set. Where a defendant fails to “promptly repudiate an attorney’s unauthorized act upon receiving knowledge of the same, the defendant effectively ratifies the act.” Further, an agreed continuance tolls the speedy trial period. An express agreement to a continuance on the record is an affirmative act attributable to the defendant. Defendant failed to promptly repudiate defense counsel’s actions. Indeed, defendant responded that it was “fine” when the trial court told defendant that the April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 8 motion for bond reduction would be heard the following week. Although defendant was saying he wanted his 120, he was still agreeing to continuances and requesting bond reduction hearings; these dates were all attributed to him. Any type of motion filed by defendant which eliminates the possibility that the case could immediately be set for a trial also constitutes an affirmative act of delay attributable to defendant. As defendant’s motion needed to be resolved, it eliminated the possibility that the case could immediately proceed to trial. Further, the court could not construe defendant’s subsequent statement that he wanted to “use [his] 120” as an objection to the continuance. Section 1035(a) places the responsibility on a defendant to take affirmative action when he becomes aware that his trial is being delayed by objecting to the delay via a written demand for trial or an oral demand for trial on the record in order to prevent the speedy trial clock from tolling. “Defendant’s contention illustrates what the Cordell court sought to prevent, the use of section 1035(a), not as a shield to protect defendant’s right to a speedy trial, but as a sword to defeat his conviction.” Go to case. Procedure | Krankel Hearing After remand, trial judge gets to the bottom of Defendant’s Krankelcomplaint even though trial counsel was in Mexico.People v. Willis This case was sent back to the trial level so the judge could conduct a Krankel hearing, otherwise the murder conviction stands. Once set back, defendant told the judge his trial attorney was ineffective because he did not ask for a lesser included instruction on second degree murder or involuntary manslaughter. The trial court denied a new trial or an appointment of new counsel because he found this decision to be a matter of trial strategy. This time record showed that the court fully considered Defendant’s pro se claim of ineffective assistance by discussing the claim with him, and evaluating the claim based on its knowledge of defense counsel’s performance and the insufficiency of the claim on its face. Although, trial counsel filed a motion on his own ineffectiveness for not securing a witness. The defendant did not bring up that issue when the trial court finally gave him a chance to bring up his complaints. Thus, the trial judge met his Krankel obligations. Go to case. Sentencing | Life Sentence This discretionary life sentence for 17 year old defendant stands. People v. Walker April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 9 Defendant shot a cab driver in the back of the head with a sawed off shotgun in 1984. He was sentenced to a discretionary life sentence. Defendant’s 2013 postconviction petition was denied because the trial court found that the original trial court had considered defendant’s youth and other relevant factors before sentencing. The trial court also declined to extend Miller to defendant’s case, reasoning that Miller applies to mandatory life sentences, not discretionary ones. First, the petition was untimely. Reviewing court did not agree that this strand of argument has only been available to criminal defendants since the Supreme Court decided Miller. A juvenile’s relative lack of fault, in comparison to their adult counterpart, is not an intellectual breakthrough that came to light solely in the wake of Miller. Second, Miller only says no mandatory life sentences for juveniles. Trial courts must consider the youth’s age. This was a discretionary life sentence were the judge followed the mandates of Miller. The facts of the case matter. Leon Miller was a lookout during a robbery which he played no part in planning, had approximately one minute to contemplate his decision to participate, and never handled a gun in the course of the offense. He was “the least culpable offender imaginable.” This defendant was the triggerman. He planned his acts before deliberately putting them into action. The murder was horribly mutilating to the body of the victim, and was performed coldbloodedly without any provocation, real or imagined, on the part of the victim. Go to case. Sentencing | Fines | Postconviction | 2‐1401 Petition Trial court vacated fines and fees after defendant files a civil 21401 petition. People v. Hible Here, both parties challenge the entry of fines by the circuit clerk for the first time on appeal. People v. Castleberry, 2015 IL 116916, does not prevent the court from vacating the fines imposed by the circuit clerk in this case. Fines imposed by the circuit clerk are still void. The clerk possesses no power or jurisdiction to render a judgment, but only to enter it under the express or implied order of the judge, in the exercise of judicial power. The judgment rendered by him is, therefore, unauthorized and void. While the circuit court has original jurisdiction, jurisdiction for sentencing is limited to the judge. The circuit clerk is prohibited from entering judgment. This court has held the clerk of court is a nonjudicial officer and has no power to impose sentences or levy fines. Therefore, under a section 21401 petition, void judgments can be challenged beyond the twoyear time limit. A void judgment is one entered without jurisdiction and can be challenged at any time or in any court, either directly or collaterally. The reviewing court has jurisdiction to address this issue for the first time on appeal. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 10 Sentencing | Fines Reviewing court vacates more fines imposed by the circuit clerk.People v. Strong Defendant got 4 years for DWLS. The trial court made no mention of fines, stating only that “judgment enters for costs of prosecution.” Similarly, the court made no mention of fines in its written sentencing order. Then, a fines and fees sheet featuring 20 monetary assessments imposed against defendant appeared in the record. $150 of the listed “assessments” are in fact fines that must be vacated. They were: a $20 Violent Crime Victims Assistance Fund assessment, a $50 court systems fee, a $10 arrestee’s medical costs fund assessment, a $15 State Police Operations Assistance Fund assessment, a $15 drug court fee, a $30 Children’s Advocacy Center assessment, and a $10 State Police Services Fund assessment. Each of the assessments identified by defendant is, indeed, a fine. See People v. Johnson, 2015 IL App (3d) 140364, (appendix). Fines imposed by circuit clerks are “void from their inception.” Go to case. Postconviction | Sex Case A strictly statutory error does not rise to the level of a constitutional error. People v. Rademacher In his postconviction petition defendant argued that the trial court deprived him of his constitutional right to a fair sentencing hearing when it considered in aggravation evidence unsupported by the record. Specifically, defendant contended that the crimes were committed in the parsonage, which does not constitute a “place of worship” under the aggravating factors statute. 730 ILCS 5/553.2(a)(11). He was a youth minister. This argument failed because it was not of sufficient constitutional dimension. There must be a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both. Any such error is one created solely by statute. Defendant here allowed his victims to spend the night at his house, which was property owned by the church. He proceeded to perform sexual acts on the victims in that house before taking them to church the next morning. That the trial court reasonably cited this pattern of behavior in aggravation does not offend either the federal or state constitution. Any purported error was only committed insofar as the facts of defendant’s case do not line up with the language and definitions set forth in subsection (a)(11) of the aggravating factors statute. 730 ILCS 5/553.2(a)(11). In other words, but for the existence of that statute, there could be no claim of error. Accordingly, the issue raised by defendant is one of statutory construction, and is not an issue of constitutional deprivation. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 11 Postconviction Dismissal of this postconviction petition was improper.People v. Russell He is saying his postconviction counsel failed to provide him with a reasonable level of assistance in that he failed to amend one of his postconviction claims in order to avoid dismissal on the basis of waiver. Specifically, defendant argues that the claim that the trial court erred in admitting evidence of other crimes and prior bad acts should have been amended to claim that the waiver of the claim was due to ineffective assistance of appellate counsel. Rule 651(c) requires that appointed postconviction counsel make any amendments that are necessary for an adequate presentation of petitioner’s contentions. It is considered routine for postconviction counsel to amend the petition to allege ineffective assistance of counsel. The failure of postconviction counsel to make this routine amendment, which contributed directly to the dismissal of the petition without an evidentiary hearing, rebutted the presumption of reasonable assistance created by the filing of the certificate of compliance with Rule 651(c). Further, a defendant is not required to make a positive showing that his counsel’s failure to comply with Rule 651(c) caused prejudice. People v. Ross, 2015 IL App (3d) 130077, ¶ 15. Instead, where postconviction counsel failed to fulfill the duties of Rule 651(c), remand is required, regardless of whether the claims raised in the petition had merit. Postconviction counsel’s noncompliance with Rule 651(c) may not be excused on the basis of harmless error. Dismissal of petition is reversed and Defendant is allowed new counsel. Go to case. Postconviction Trial court was correct to dismiss the 21401 petition. People v. Rolfe The proof of service, attached to his petition, states only that it was placed the prison mail system to be mailed to the clerk of the circuit court. The proof of service says nothing, one way or the other, about serving the petition on the State. He argues the petition is unripe for adjudication until 30 days pass after service of the petition on the State pursuant to Illinois Supreme Court Rule 105, and he represents he has not yet served the petition on the State. The supreme court explained that, as the appellant, the defendant “ha[d] the burden to present a sufficiently complete record such that the court of review [could] determine whether there was the error claimed by the appellant.” Without a record affirmatively showing the claimed error, a April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 12 court of review would presume the trial court followed the law. “To serve as a basis for [the] defendant’s contention of error, [the proof of service had to] affirmatively establish that [the] defendant mailed his petition via some means other than certified or registered mail.” It did not do so, so this dismissal was proper. See People v. Carter, 2015 IL 117709. The silence of the record is not the affirmative showing of error required of an appellant. Defendant never asked the trial court to reconsider its decision on the ground that he had not yet served the State. See 735 ILCS 5/21203(a). Any section 21401 petitioner who seeks to use, on appeal, his own error, by way of allegedly defective service, in an effort to gain reversal of a circuit court’s sua sponte dismissal of his or her petition on the merits, must affirmatively demonstrate the error via proceedings of record in the circuit court. Go to case. April 2016 ● Illinos Criminal Case List ● IllinoisCaseLaw.com ● Page 13
Here are the top 13 criminal law cases from the Illinois court system for March 2016. The first 4 are from the Illinois Supreme Court. Number 4 was a victory for the defense at the lower level and the Illinois Supreme Court had something to say about that.
- People v. Burns
The “no-nights visits” rule is affirmed, can’t bring the sniffer dog to your front step for a little sniff action.
- People v. Bradford
Prosecution no longer allowed to overcharge an ordinary retail theft to a burglary.
- People v. Clark
Aggravated vehicular hijacking and armed robbery without a firearm are not lesser-included offenses of aggravated vehicular hijacking and armed robbery with a firearm.
- People v. Timmsen
Apparently, the police can stop you for trying to legally avoid a roadblock.
- People v. Abram
Officers approach defendant who was sitting in his car he then, to say the least, ensues in outright flight.
- People v. Smith
This trial judge was overruled; there is nothing unconstitutional about requesting citizen’s to roll up their sleeves.
- People v. Thompson
Some of the State’s remarks relied on questionable advocacy, but did not rise to the level of clear and obvious error.
- People v. Meuris
In a leaving the scene of an accident prosecution the State must not only prove that Defendant knew he was involved in an accident but also that another person was involved.
- People v. Weinke
Reviewing court says ASA exaggerated the severity of victim’s condition and misled the court as to the source and timing of her information in order to pressure the court into granting a quickie deposition.
- People v. Tayborn
Trial counsel was ineffective for not challenging defendant’s confession given without Miranda warnings.
- People v. Little
Cigarette break is not a sufficient amount of time to remove the taint of the original Miranda violation.
- People v. Gray
These drug officers were themselves charged with distributing narcotics and Defendant was not told about the investigation before he plead guilty to his own drug charges.
- People v. Fulton
In a charge of armed habitual criminal the same conviction can be used as one of the predicate offenses as well the predicate to the UUW Felony conviction that may be being used.
What is a deposition?
In about 30 years of working in the law I have seen many documents used to prepare witnesses for deposition. I decided to write one that would be easily understood by the typical lay witness. This article is not legal advice. It is a compilation of advice given by various attorneys, which I hope you will find useful.
If you use this for a client, it should be provided on the attorney’s letterhead with this cautionary language at the top: Note: This document is privileged and confidential. Do not show it to anyone. Read it several times before giving your deposition.
PREPARING FOR YOUR DEPOSITION
Your deposition is extremely important and will affect your case in many ways. You must understand everything in this preparation document before being deposed. A deposition is a device commonly used in the “discovery” phase of a lawsuit, before trial. All parties in a lawsuit, through their attorneys, have a period of time after a suit is filed in which to discover facts about a case in order to prepare for trial. Depositions and interrogatories (questions to be answered in writing under oath) are two of the most commonly used.
In a deposition, the witness (you in this case) is called the deponent and is sworn to tell the truth (by the court reporter, who is neutral) before any questions are asked. Attorneys will attend for both sides and the attorney for the opposing party will ask you questions, while the court reporter takes everything down to provide everybody with a copy. Portions of the transcript will probably be used in the trial.
The opposing attorney also wants to get your testimony committed to writing. Warning: everything you say will be used against you, and it is the opposing attorney’s purpose to get you to say something that will hurt your case. Your deposition is not for your benefit; it is for the benefit of the other side. You must resist the urge to tell your story or vindicate yourself or justify your actions. You must answer the questions as briefly as possible and never volunteer information. You will have your chance at trial, when your attorney is asking the questions. So listen carefully to each question, think before answering, and answer concisely-with a “yes” or “no” if possible.
Depositions are not the trial, even though they may be used at trial. Depositions are informal proceedings, usually taken in an attorney’s office, and the judge is not present. They usually last two to six hours sometimes less. The scope of questions is unlimited, and attorneys have the right to ask broad questions on topics that may seem irrelevant. Many topics are covered in depositions that will never be admissible at trial. You must answer all questions unless your attorney instructs you not to answer (another reason for listening to the complete question and taking time before answering).
The opposing attorney may act like Mr. Nice Guy, and you should be polite, but always remember: his duty is to try to help his client by weakening your case. Do not trust him and always remain mentally sharp. Some opposing attorneys will be short and snappy with you, and at times may seem hard-lined and relentless in questioning you. Despite the tactics by opposing counsel, you must remember that he/she is not your friend. Your only friend in the deposition is your attorney.
Your attorney will not ask you any questions. He is there to protect you from improper questioning. Remember: this is not the place to tell your story, but only to give facts as you know them. If your attorney begins to speak, you must stop talking. If the attorneys enter into discussions, you are not to say a word, but listen carefully to what is being said. If your attorney makes an objection, remain silent until he/she tells you to answer. If your attorney instructs you not to answer, do not answer no matter how angry the other attorney becomes or how harmless the question may seem to you.
Getting Ready for Your Deposition
First read this document several times and make sure you understand all of it. If not, ask your attorney or his staff about anything you do not understand. Then review any interrogatories you have answered, because the other attorney will probably use them at your deposition. Read the pleadings and motions that have been filed and go over them with your attorney if you have questions about them.
The other side has the right to ask you to bring documents to your deposition. If you have not been asked to bring anything, do not bring anything. If you have been asked to do so, do your best to gather the documents requested, even if it means getting them from a lockbox or storeroom. Review all documents with your attorney before your deposition. If you have not been asked to bring any documents, but you have documents you think you should bring, discuss it with your attorney.
Important: Letters between you and your attorney and his/her staff, and any documents prepared in connection with the lawsuit are privileged and confidential and never should be produced. These documents may be privileged under the attorney-client privilege or under the work-product privilege. If you produce even one of them, you may forfeit the privilege for all of them. If any documents requested by the other side are privileged and confidential, let your attorney know immediately.
Your attorney or his staff will meet with you before your deposition to prepare you further. Do not hide anything from your attorney. You must be totally truthful with your attorney (and that includes his/her staff) and you will not be fully protected if there are things the other side may know that your attorney doesn’t know. Be candid in all respects and rest assured that everything you say to your attorney or his staff is privileged and confidential. Think of any bad things the other side could possibly know and be sure to let your attorney know about them.
The Deposition Itself
Dress neatly. The best outfit is comfortable business attire, with nothing flashy, nothing offbeat, nothing dirty, nothing sloppy. Remember, the other attorneys are evaluating you as a witness. If you will be making a good impression on the jury at trial, your testimony is more valuable.
Produce requested documents and answer truthfully. Your duty is to answer each question as truthfully as you can, but also with as short an answer as possible. Before answering any question, remember to look straight at the attorney asking the question, listen carefully, pause at least two or three seconds to think, and then give your short, concise answer politely and calmly. For most questions, a “yes sir” or “no sir” or “I don’t know” is sufficient. If you say more than three sentences, you have probably said too much. Remember to do this with each question, so that every answer is formal and controlled and you are controlling the tempo of your deposition.
Always be polite. Your conduct and demeanor may be more important than the answers you give. Try to make a good impression. Relax and remain calm, trying not to show nervousness. (You will be nervous, but try not to show it.) Always respond courteously. Always refer to the attorneys as “Mr.” or “Ms.” Speak up positively with assurance.
You may consult with your attorney. If you have questions or concerns about your potential answer, you may ask the opposing attorney, “May I consult with my attorney?” You may then either talk privately at the table or go outside to discuss it with your attorney. Do not be afraid to ask your attorney questions if you feel it important, but keep these consultations to an absolute minimum. Your attorney cannot tell you how to answer but can help clarify the question. Never answer a question with a question or rhetoric.
Your testimony must be truthful. Tell the truth, the whole truth, and nothing but the truth, but only in response to questions, and with short answers. If you do not tell the truth, you could be subject to criminal prosecution for perjury. If you are caught not telling the truth, it will hurt your credibility and therefore, your case. You must answer every question truthfully.
Answer only from your personal knowledge. Never volunteer an opinion unless specifically asked to do so. Never guess or speculate. Guessing or speculating is not truthful. Do not do it. Don’t let the opposing attorney fool you into making statements outside of your personal knowledge or about something you do not remember.
Testify in your own words. Don’t let opposing counsel put words in your mouth. Stay with your version of the facts as you know them. One tactic some attorneys use is to say “Well, is it fair to say that . . . ?” If he/she uses this tactic and attempts to summarize parts of your testimony, listen carefully and do not agree unless it is exactly true in all respects; if not, state that you do not agree with his/her summary.
Do not be intimidated. The opposing attorney may make an insinuation or express an opinion that you are not telling the truth. This is an old trick and you should not fall for it. He/she may say something like, “Do you mean to tell me that you’re willing to sit here under oath and swear to that?” Remain calm, look him/her in the eyes, and say, “I have just testified to that fact under oath.” The opposing attorney may speak with a raised voice and seem hateful, but your attorney will not let you be badgered or let things get out of hand.
Be careful of questions dependent on your memory. If you are asked about something that happened long ago and you do not remember the date or time, just say so, and do not guess. Nobody expects you to remember every fact of your life. If pressed for dates, you can say, “To the best of my knowledge, it was around that time.” If you don’t remember, say so. Often, the truthful answer to a question begins with “To the best of my knowledge at this time.”
If you don’t know, say so. Again, do not speculate and do not guess. If you do not know the answer to a question, just say, “I do not know.” Do not assume anything. Another old trick is for the opposing attorney to pull out a piece of paper and read it to himself, then ask you if you remember writing a letter to [name] that said [facts]. Don’t be fooled into admitting something of which you are not sure. Don’t say, “I guess so” when the truthful answer is “I do not remember writing such a letter.”
Don’t give long, rambling answers. The opposing attorney will always gain an advantage if you talk too much. Never ask to explain your answer before giving it. And don’t explain your proper “yes sir” or “no sir” answer, either. You must not volunteer information that is unsolicited ever. An example: You are asked to “State the highest degree of education you have earned.” Many witnesses respond: “Well I graduated high school and then went to college for two years.” This is volunteering information. The correct answer is “a high school diploma.” You will only hurt your case and help the other side’s case if you volunteer information, no matter how harmless it may seem.
Don’t give an opinion unless asked. Just answer with facts and never give your opinion or belief unless asked for it. Again, this is volunteering information and can only hurt your case.
Finish your answers. If you do have a long answer, and the other attorney interrupts you when giving your answer, you should politely insist on finishing your entire answer. Just state that you were not through with your answer and insist on being allowed to finish it.
Use care with documents. If you are asked about a certain document, you should ask to see the document before answering. But never refer to a document to refresh your memory without first discussing it with your attorney. In some states, if a deponent is asked a question and stops to look at a document to refresh his/her memory, the document must be disclosed even if it is a privileged document.
Always keep your guard up. Everyone is nervous about giving a deposition. It is only natural. Sometimes a deponent will begin to relax as the deposition progresses and they may even actually begin to enjoy being the center of attention. Avoid this feeling. It is dangerous and leads to your forgetting the rules outlined in this article. Remain alert, be on guard, sit up straight, and remember to:
a. Look and listen
b. Pause and think
c. Answer briefly
Remain polite and courteous, keep your guard up, and don’t let the opposing attorney talk you into hurting your case. Never let yourself be provoked into anger, arguing, or being upset.
Nothing is “off the record.” The court reporter is taking down every word. An attorney may ask you for an answer “off the record,” but do not fall for it. The only thing off the record will be discussions among attorneys when the reporter has been instructed to stop recording.
After Your Deposition
Provide information if agreed. During the deposition, you and your attorney may agree to produce something to the other side. Locate it immediately after the deposition and deliver it to your attorney as soon as possible.
Correct errors in the transcript. You will have a limited time to make any corrections after the court reporter has typed the transcript. Read it carefully and make all corrections. If you don’t do so within the time period, which may be as few as 20 days, you will not be able to correct it later and you will be stuck with it at trial. Follow your attorney’s advice regarding making the corrections.
Answers may need to be supplemented. In some states you are required to supplement any answers you gave at a deposition. If you are asked a question in a deposition, and your answer later changes, you must let your attorney know. For example, you may be asked for names of witnesses, and after your deposition you learn of another witness. You must give that new information to your attorney immediately.
Review your deposition before trial. Make sure you re-read your deposition testimony before you get to trial. Most cases settle and never reach trial, but not all cases settle. If you are going to trial, it is critical that you know everything you have said under oath, whether in a deposition or interrogatories.
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