Judicial Rulings

Rape shield constitutional

On January 17 the Illinois Supreme Court upheld the constitutionality of the rape shield act (see Illinois Revised Statutes 1987, ch. 38, sec. 115-7). This is the court's first such review of the statute.

In a case of "date rape" the prosecution elicited testimony from the victim about her prior sexual relations with the defendant and her denial of having anal intercourse with others. The defense wished to call a witness who would testify that she had had anal intercourse with him. The trial judge ultimately ruled that evidence on previous sexual relations was inadmissable under the rape shield statute and, in final instructions, told the jury to disregard the victim's direct testimony on this matter.

On appeal the defendant claimed that his constitutional right to confront a witness had been denied. He described the victim's charges as an attempt at vengeance because he had discontinued sexual intercourse with her, and that such an ulterior motive would be grounds for introducing evidence impeaching the victim. Failure to allow him to confront the victim witness, he said, violated his constitutional rights.

The statute says, "[T]he prior sexual activity or the reputation of the alleged victim is inadmissable except as evidence concerning the past sexual conduct of the alleged victim with the accused" (sec. 115-7 (a)). This, said the court, "leaves no room for introduction of reputation or specific-act evidence from any party in the action." It ruled that the judge's instruction to the jury to disregard the evidence made impeachment unnecessary. The court said that the purpose of the rape shield is to limit the case to the use of force in the single, specific act and that all other matters are collateral and not subject to impeachment.

Justice William G. Clark wrote the opinion in People v Sandoval (Docket No. 68286), with a special concurrence by Justice Ben Miller, who made a narrower interpretation and dissociated himself from parts of the decision.

Raise for state's attorneys

The Illinois Supreme Court permitted pay raises, ranging from $14,000 to 15,000 per year, to the 102 state's attorneys on January 17. Public Act 85-1451 created the raises and became effective March 15, 1989, but Jay Hedges, director of the Illinois Department of Commerce and Community Affairs, had refused to reimburse counties for the state's share of the hike. He argued that state's attorneys, as elected officials, are constitutionally barred from receiving raises during their term of office.

The Supreme Court pointed out that such prohibitions apply to elected members of the executive branch, legislators and elected local officials, but the provisions in the Illinois Constitution covering those officials are separate from those on state's attorneys. State's attorneys are in the judicial article (Art. VI, sec. 19), which provides that salaries of judges may take effect during their terms (sec. 14) and prohibits them from being diminished during their terms. The court said that if the Constitution's drafters had wanted to prohibit state's attorneys from receiving pay raises during their terms, they would have employed "the type of clear and unambiguous language . . . used in prohibiting legislative, executive, and local governmental officials from receiving salary raises during their terms of office."

The court determined that state's attorneys are state, not county officials; it implied without explicit statement that they are officials of the judicial branch.

The decision in Ingemunson v Hedges (Docket No. 68457) was unanimous with an opinion by Justice William G. Clark. Chief Justice Thomas J. Moran did not participate, and Justice Ben Miller, joined by Justice Horace L. Calvo, wrote a special concurrence.

On informants absent from trial: lotsa luck

The Illinois Supreme Court gave defendants a little with one hand and took it away with another in setting out duties of the prosecution when an informant is unavailable for trial. In a January 24 decision, the court established a three-part test applied in an appellate decision (see People v Stumpe (1979, 80 111. App. 3d 158, 163).

Step 1 requires the defendant to establish that the informant's testimony would be relevant and material. Step 2 requires the prosecution to demonstrate a good-faith effort to locate the informant. Then the defendant must show either the likelihood of exculpatory evidence by the informant or that impeachment of his testimony would cast doubt on the state's case.

In effect the court said "lotsa luck" to defendants. It termed Step 3 "a higher burden" than Step 1 and noted that "we are not aware of any case where a defendant has been able to meet this 'higher burden.' "

Justice William G. Clark wrote the opinion for the unanimous decision in People v Holmes (Docket No. 68448).

U.S. Supreme Court on Illinois cases

The U.S. Supreme Court overturned the Illinois Supreme Court in one case, and upheld its ruling on another. Perhaps most significant is James v Illinois (Docket No. 88-6075), which reversed People v James (123 Ill. 2d 523, 528 N.E. 2d 723 (1988)) where the issue was the exclusionary rule.

That rule provides that evidence obtained illegally cannot be used at trial, but it includes an exception recognized since 1954 allowing use of such evidence to rebut testimony of a defendant. The Illinois decision had extended the exception to cover rebuttal testimony by a defense witness. The U.S. Supreme Court decided that Illinois' extension went too far because it would disrupt the balance between protecting the rights of individuals and finding the truth in court.

The exclusionary rule is a deterrent to police; it safeguards citizens against unlawful search and self-incrimination. The rule's exception supports the truth-seeking function of the judicial process. Any alteration is a senstive matter, reflected in the split court decisions, on both the Illinois high court (4-3) and on the U.S. high court (5-4).

• The U.S. Supreme Court upheld (in another 5-4 decision) the Illinois court's ruling that a pool of potential jurors must represent a cross section of the community, but that the ultimate composition of a jury need not. In this case the prosecution had used peremptory challenges to exclude two blacks from a jury chosen to hear the case against a white defendant. (See Holland v Illinois, No. 88-5050.)

• Illinois Auditor General Robert G. Cronson's 13-year battle to audit the books of the Attorney Registration and Disciplinary Commission and the State Board of Law Examiners came to an end on January 22. The U.S. Supreme Court refused to hear his appeal (see Cronson v Chicago Bar Association, No. 89-850) of an Illinois Supreme Court ruling that rejected his arguments for the audit. Both agencies are administered by the Illinois Supreme Court; the auditor general is a constitutional officer appointed by the Illinois legislature.

F. Mark Siebert

March 1990/Illinois Issues/25