Being charged with a crime is a scary and uncertain process. One where a person’s, livelihood, freedom and status in the community can be permanently affected by the negative consequences that can result from a criminal conviction and incarceration.
Individuals facing criminal charges where the alleged victim is a minor will be faced with the possible additional judicial onslaught of having to defend against the child’s out of court (hearsay) statements to other individuals such as police, health care workers, parents and DCFS case workers, which would normally be inadmissible, but may be admissible pursuant to what is commonly referred to as a 115-10 hearing. This hearing is authorized under 725 ILCS 5/115-10.
It is not uncommon for allegations of molestation or abuse to follow the filing of papers for divorce and the custody dispute that follows. A defendant very often finds himself or herself in a situation where they are guilty until proven innocent in the eyes of the court, media and community in general.
As any case involving a child as the alleged victim can be very emotionally charged, present complex evidentiary issues, and carry serious consequences, it is strongly advised that a defendant retain the services of a top criminal defense lawyer who knows how to navigate such complex legal issues.
A child’s statements to a third party are generally not admissible unless a special exception for alleged victims under the age of thirteen (13) is found by the court to be applicable. However, if after a hearing the out of court statements are found to be admissible it does not mean that the victim does not have to testify at trial. The U.S. Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004) held that out of court statements by witnesses that are testimonial are not admissible under the confrontation clause of the U.S. Constitution unless the witnesses are unavailable and the defendant has had a prior opportunity to cross examine the witness or victim.
When an alleged victim is under the age of thirteen years the child may testify that he or she complained of a sexual act to someone. The person to whom the child made the complaint may testify as to the out of court statement made by the child. The out of court statement is only admissible if the court finds in a hearing outside the presence of a jury that the time, context and circumstance of the statement provide a sufficient indicia of reliability and if the child either testifies at the hearing or is unavailable as a witness and there is corroborative evidence of the act which is the subject of the child’s out of court statement that the prosecutor is seeking to admit at trial.
While the child victim is not required to be present at the 115/10 hearing, the defendant has an absolute right to be present at the hearing. A defendant is not deprived of his or her constitutional right to confrontation when the trial court quashes a subpoena directed at a young child to testify at the 115/10 hearing. This is because the statute does not require that the child testify at the 115/10 hearing and a defendant will be given a chance to cross examine the victim when the child testifies at trial. If the court does find the out of court statement by the child to be admissible.
It is my hope that this article has provided some insight into 115/10 hearings and the implications both on the admissibility of out of court statements, as well as, how the hearing impacts a defendant’s right to confront his accusers.
The use of the internet or this form of communication with the firm or individual member of the firm does not establish an attorney-client relationship. The information provided above is not to be considered legal advice and is intended for educational purposes only.
Miller Law Offices represents clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Pekin, Bartonville, Morton, Washington, Eureka, Pontiac, Cambridge, Dunlap, Bloomington, Normal and cases in Peoria County, Henry County, Livingston County, McLean County, Tazewell County, Putnam County, Knox County and Woodford County.
Article Author: C. Matthew Miller
- Matthew Miller is the sole practitioner at Miller Law Offices, P.C. He has been recognized by the National Trial Lawyers as a Top 100 Trial Lawyer and the American Society of Legal Advocates as a Top 40 Criminal Defense lawyer Under 40 in the State of Illinois. Mr. Miller concentrates his practice in Criminal Law, DUI, Criminal Record Expungements, Divorce and Child Custody.