also dissenting:
I respectfully dissent. I believe that the rules of statutory construction compel a finding that videotaped statements are not permitted under section 115 — 10 (725 ILCS 5/115 — 10 (West 1994)). I also believe that the consequences of the majority’s mistaken interpretation of section 115 — 10 are a clear violation of defendant’s sixth amendment rights and the improper admission of cumulative testimony.
I. Statutory Construction
Nowhere in the text of section 115 — 10 does the legislature permit the admission of “outcry statements” by videotape or any other electronic recording. Thus, by concluding that section 115 — 10 allows the introduction of the minor child’s video statement, the majority breaches an elemental rule of statutory construction, namely, to give effect to the statute’s plain and ordinary meaning. People v. Woodard, 175 Ill. 2d 435, 443 (1997). Applying section 115 — 10 as written, moreover, is completely consistent with the majority’s desire to promote the legislative intent animating the statute, since any inquiry into legislative intent must begin with the language of the statute. In re S.G., 175 Ill. 2d 471, 480 (1997); People v. Haynes, 174 Ill. 2d 204, 222 (1996).
The majority states that comparisons of section 115 — 10 to section 115 — 10.1 (725 ILCS 5/115 — 10.1 (West 1994)) and former section 106A — 2 of the criminal procedure code (Ill. Rev. Stat. 1987, ch. 38, par. 106A — 2 (repealed by Public Act 87 — 345, eff. January 1, 1992)) add nothing to our construction of section 115 — 10 because section 106A — 2 and section 115 — 10.1 “pertain to different subject matter.” I disagree. I find concurrent examination of these sections useful because they address overlapping subject matter. These comparisons, moreover, indicate that the legislature did not intend to permit introduction of videotaped statements pursuant to section 115 — 10.
Section 106A — 2 allowed a trial court to order the videotaping of the statements or testimony of child victims of specified sexual offenses. Ill. Rev. Stat. 1987, ch. 38, pars. 106A — 1, 106A — 2 (repealed by Public Act 87 — 345, eff. January 1, 1992). As this court stated in People v. Bastien, 129 Ill. 2d 64, 70 (1989), the purposes underlying section 106A — 2 were to protect child witnesses from the potential trauma of testifying in open court and to compensate for the fear, confusion and forgetfulness that frequently impede a child’s ability to testify in open court. Decisions construing section 115 — 10 agree that the difficulties inherent in having children testify also prompted the legislature to enact section 115 — 10. See People v. Holloway, 177 Ill. 2d 1, 9 (1997) (“Problems in proof may result when the lesser developed cognitive and language skills that children have hinder them in adequately communicating the details of an assault”); People v. Peck, 285 Ill. App. 3d 14, 20 (1996). In light of the common aims underpinning section 115 — 10 and section 106A — 2, I cannot interpret section 115 — 10’s silence on the question of videotaped testimony as mere oversight. See In re Application for Judgment & Sale of Delinquent Properties for the Tax Year 1989, 167 Ill. 2d 161, 168-69 (1995) (“Statutes should be construed in conjunction with other statutes addressing the same subject”). The legislature is presumed to know the contents of existing enactments (State of Illinois v. Mikusch, 138 Ill. 2d 242, 248 (1990)), and I can only conclude that the legislature purposefully excluded videotaped statements from the hearsay exception created in section 115 — 10.
Section 115 — 10.1, in turn, regulates the introduction of prior inconsistent statements in a criminal trial, including statements recorded on videotape (725 ILCS 5/115 — 10.1 (West 1994)). Like section 115 — 10, section 115 — 10.1 purports to create an exception to the rule against hearsay. Again, I submit that the General Assembly knew full well the difference between expressly sanctioning videotaped testimony, as it did in section 115 — 10.1, and failing to mention videotaping of statements at all, as occurred in section 115 — 10. As our appellate court stated in People v. Mitchell, 225 Ill. App. 3d 708, 717 (1992), “It would have been a simple matter for the legislature to indicate that videotaped statements were admissible under section 115 — 10. The legislature did not do so. We must, therefore, conclude that section 115 — 10 *** does not contemplate or allow the admission of such evidence.”
II. Constitutionality of Section 115 — 10
My objection to the majority’s overly expansive reading of section 115 — 10 is not merely academic. More important than the affront to rules of statutory construction rendered by the majority opinion is the fact the opinion condones a breach of defendant’s sixth amendment rights. Indeed, we previously found the introduction of similar videotaped evidence an impermissible breach of the confrontation clause. See Bastien, 129 Ill. 2d 64.
In Bastien, we determined the constitutionality of section 106A — 2 (Ill. Rev. Stat. 1987, ch. 38, par. 106A — 2 (repealed by Public Act 87 — 345, eff. January 1, 1992)). That statute allowed a trial court to order the videotaping of the statement or testimony of a child victim of a sexual assault. Bastien, 129 Ill. 2d at 68-69. Section 106A — 2 permitted counsel for both parties to be present as the child testified, but only the state’s counsel could question the victim, and counsel could not use leading questions. Bastien, 129 Ill. 2d at 69. The defendant could also attend the recording session and the court could rule on evidentiary objections. Bastien, 129 Ill. 2d at 69; Ill. Rev. Stat. 1987, ch. 38, par. 106A — 2(a). Further, section 106A — 2 allowed introduction of the videotape into evidence provided, inter alia, the child was available to testify at trial, subject to cross-examination by the defendant or the defendant’s attorney. Bastien, 129 Ill. 2d at 69.
This court found section 106A — 2 unconstitutional. Bastien, 129 Ill. 2d at 77. The court ruled that section 106A — 2 deprived defendant of the right to confrontation by effectively prohibiting contemporaneous cross-examination of the child witness. Bastien, 129 Ill. 2d at 77. The Bastien court recognized that several months could elapse between the videotaping and the trial. Bastien, 129 Ill. 2d at 77. “During that time, the child undoubtedly will have contact with the prosecutor and the relatives who, consciously or unconsciously, may influence the child” (Bastien, 129 Ill. 2d at 77), with the result that any false testimony captured on tape will “ ‘harden and become unyielding to the blows of truth.’ ” Bastien, 129 Ill. 2d at 76-77, quoting California v. Green, 399 U.S. 149, 159, 26 L. Ed. 2d 489, 497-98, 90 S. Ct. 1930, 1935-36 (1970). Additionally, the court found no justification for reliance on videotaped testimony of a child if the statute also mandated that the child be available for trial and cross-examination at trial. Bastien, 129 Ill. 2d at 78. From an evidentiary standpoint, the testimony captured on videotape was far inferior to live testimony at trial. Bastien, 129 Ill. 2d at 78.
Section 115 — 10 allows a trial court to admit, as an exception to the bar against hearsay, out-of-court statements of a child “describing any complaint of [a physical or sexual act perpetrated on the child] or matter or detail pertaining to any act which is an element of an offense which is the subject of [the prosecution]” (725 ILCS 5/115 — 10(a)(2) (West 1994)). The scope of this hearsay exception is so broad as to be indistinguishable from the typical narrative of events usually elicited by direct examination at trial. Indeed, that is precisely the nature of the testimony admitted by videotape in this case. D.M.E described her understanding of permissible and impermissible touching, and identified human anatomy on dolls. She used the dolls to describe acts of abuse allegedly performed on her, and described other details surrounding her contacts with defendant. She stated that these incidents occurred 19 times.
Notably, too, section 115 — 10 does not require that any out-of-court statement by the child be subject to cross-examination, so that, as in Bastien, the videotaped testimony of D.M.E was not tested by simultaneous cross-examination. Under the authority of Bastien, moreover, the fact that D.M.E was at trial and cross-examined in the courtroom does not remove the taint of constitutional violations. Bastien, 129 Ill. 2d at 78-79. Section 106A — 2 required that the witness be available for cross-examination at trial, but this court found subsequent cross-examination an inadequate substitute for contemporaneous cross-examination. Bastien, 129 Ill. 2d at 78-79. The court noted:
“ ‘Cross-examination often depends for its effectiveness on the ability of counsel to punch holes in a witness’ testimony at just the right time, in just the right way. *** [C]rossexamination of a witness who is uncounseled between direct and cross-examination is more likely to lead to the discovery of truth than is cross-examination of a witness who is given time to pause and consult with his attorney.’ ” Bastien, 129 Ill. 2d at 79, quoting Perry v. Leeke, 488 U.S. 272, 282, 102 L. Ed. 2d 624, 635, 109 S. Ct. 594, 601 (1989). The majority contends that comparisons to Bastien
are inapposite since section 106A — 2 allowed admission of videotape in lieu of a child’s testimony, while section 115 — 10 merely sanctions the admission of certain statements as an exception to the general rule barring hearsay at trial. For the purposes of the present appeal, this is a distinction without a difference. The Bastien court candidly identified the video testimony in that case as pure hearsay. Bastien, 129 Ill. 2d at 74.
The majority also compares section 115 — 10 to the holding of Idaho v. Wright, 497 U.S. 805, 814-15, 111 L. Ed. 2d 638, 651-52, 110 S. Ct. 3139, 3146 (1990), which states that admission of hearsay does not necessarily violate the confrontation clause, provided the proponent complies with the “unavailability rule” and provided the hearsay falls within one of the “well-rooted” hearsay exceptions or is tested for reliability under the totality of the circumstances surrounding the statement. The majority further observes that section 115 — 10 satisfies the unavailability rule, as well as the totality of the circumstances test put forth in Wright. Accordingly, the majority suggests, hearsay, by videotape or otherwise, may be admitted pursuant to section 115 — 10 without violating the confrontation clause.
While the “totality of the circumstances” test undoubtedly expands the scope of testimony admissible without breach of the confrontation clause, I believe that blind adherence to that rule can create anomalies like the one that confronts us today. The hearsay “exception” articulated in section 115 — 10 is so broad as to render the general rule barring hearsay meaningless. The exception, in other words, swallows the rule. Under section 115 — 10, a child witness’ previously recorded testimony concerning a sexual assault, not subject to contemporaneous cross-examination, can be admitted against a criminal defendant. In Bastien, this court found virtually identical facts constitutionally infirm. I believe that merely relabeling the video testimony as a “hearsay exception” not only exalts form over function, but also ignores the real consequences of this court’s actions. While I do not advocate overruling Bastien, it is only by doing so that we can avoid an inconsistency between the holding in Bastien and the result urged by the majority in the present appeal. I think the better course is to reaffirm Bastien and reverse the appellate and circuit courts here.
Lastly, the majority’s opinion neglects to cure a dilemma I recognized in People v. Kerwin, 159 Ill. 2d 436, 453-55 (1994) (McMorrow, J., dissenting), and which has repeated itself here. In Kerwin, this court affirmed the defendant’s conviction on three counts of aggravated sexual assault of a child. I concluded in dissent that defendant received ineffective assistance of counsel, in part due to counsel’s failure to object to admission of the victim’s videotaped statements pursuant to section 115— 10.1 urged in Kerwin, as here, that section 115 — 10 does not, by its terms, allow introduction of videotaped hearsay statements. Kerwin, 159 Ill. 2d at 454 (McMorrow, J., dissenting), citing People v. Mitchell, 225 Ill. App. 3d 708, 716-19 (1992). Further, my reference to Kerwin is not invalidated by subsequent amendments to section 115 — 10, as the majority suggests. Although the statute has been amended several times since its enactment in 1983, at no time has section 115 — 10 permitted the admission of videotaped hearsay statements.
Additionally, I noted in Kerwin that the State “enjoyed the advantage of having [the victim] ‘testify’ twice; once in the courtroom, under oath and subject to contemporaneous cross-examination, and then again in the form of the lengthy, open-ended format of the [videotaped interviews].” Kerwin, 159 Ill. 2d at 455 (McMorrow, J., dissenting). The unsworn statements recorded on video were the product of sometimes leading questions and were not tested by contemporaneous cross-examination or by objections. Kerwin, 159 Ill. 2d at 455 (McMorrow, J., dissenting). The videotape in Kerwin “injected a layer of cumulative and repetitive details *** not elicited in accordance with courtroom procedure.” Kerwin, 159 Ill. 2d at 455 (McMorrow, J., dissenting).
In the- case before us, the testimony introduced by video was in substantial and material part cumulative of D.M.E’s testimony on the witness stand. Elicited without any of the procedural safeguards normally attending testimony in an adversarial proceeding, the admission of recorded statements served only to add, unfairly, heft to the State’s case and to violate defendant’s constitutional rights.