specially concurring:
I concur in the decision to reverse and remand. Even assuming that section 115 — 10 has some continuing validity, the statements to Boston and Shalores lack “sufficient safeguards of reliability.” 725 ILCS 5/115 — 10(b)(1) (West 1998); see People v. Cookson, 335 Ill. App. 3d 786, 794-98, 780 N.E.2d 807, 813-16 (2002) (Cook, J., dissenting); People v. Barger, 251 Ill. App. 3d 448, 469-73, 624 N.E.2d 405, 418-20 (1993) (Cook, J., specially concurring).
I disagree, however, that section 115 — 10 has any continuing validity. Crawford was certainly critical of “sufficient safeguards of reliability” hearings. Crawford, 541 U.S. at 63, 158 L. Ed. 2d at 200, 124 S. Ct. at 1371 (“amorphous,” “unpredictable,” “demonstrated capacity to admit” statements that should be excluded). We should not try to pick out pieces of section 115 — 10 that might survive Crawford. The legislature should decide whether it wants a new section 115 — 10, one which will be very different from the one it enacted.
Section 115 — 10 may be summarized as follows. The hearsay statement is substantively admissible whether or not the child testifies. The only restriction is that the State must call the child as a witness, unless the child is “unavailable.” If the child is unavailable, there must be “corroborative evidence of the act.” In any case, there must be a section 115 — 10 hearing to establish “sufficient safeguards of reliability.” 725 ILCS 5/115 — 10(b)(1) (West 1998). Crawford substantially undercuts section 115 — 10. The admission of testimonial hearsay violates the confrontation clause even if the witness is legitimately unavailable, unless there was a prior opportunity for cross-examination. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. The idea that “sufficient safeguards of reliability” are of some help is rejected. Crawford, 541 U.S. at 62, 158 L. Ed. 2d at 199, 124 S. Ct. at 1371. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the constitution actually prescribes: confrontation. Crawford, 541 U.S. at 69, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. Certainly the statements to the sheriffs detective and to Dr. Nichols-Johnson were testimonial hearsay, and their admission was prejudicial to defendant.
Crawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at 197 n.9, 124 S. Ct. at 1369 n.9, went on to hold that when the declarant appears for cross-examination at trial, the confrontation clause places “no constraints at all” on the use of his prior testimonial statements. “The [c]lause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” Crawford, 541 U.S. at 60 n.9, 158 L. Ed. 2d at 198 n.9, 124 S. Ct. at 1369 n.9. C.M., who basically answered “I don’t know” to every question asked her, did not appear for cross-examination in this case. Placing a witness on the stand who is unable to understand what happened, cannot remember what happened, cannot understand the questions asked, or is unable to answer them does not afford an opportunity for cross-examination.
Children’s hearsay cases are unique. In many such cases the effect of section 115 — 10 was to get the supposed testimony of an incompetent child before the trial court, often through the testimony of an interested witness who was given free rein to interpret what the child had said or done. Under section 115 — 10, the child usually could not be cross-examined. In Crawford, in contrast, there were no concerns whether the statement had actually been made and there would have been no problem cross-examining the wife at trial and allowing her to defend or explain the statement.
Did Crawford mean what it said, that the declarant must appear for cross-examination to defend or explain the hearsay statement? Is it sufficient that a declarant who is unable to understand or answer questions is simply placed in the witness chair? The issue was touched on in Green, where a co-accused’s testimony at preliminary hearing was admitted substantively, despite the fact that when called at trial he was evasive and uncooperative, claiming a lapse of memory. The testimony was admitted, however, because defense counsel had been afforded (and exercised) a full opportunity to cross-examine at the preliminary hearing. Green, 399 U.S. at 162, 26 L. Ed. 2d at 499, 90 S. Ct. at 1937. Green is no support for dispensing with cross-examination here.
The majority justifies its decision to admit C.M.’s statements, despite her inability to testify, by citing some unusual cases, Owens (where the victim at trial could not remember the attack but could remember identifying the defendant to the police) and Fensterer (where an expert witness at trial could not remember some of the details of his expert opinion). Crawford, of course, did not cite either one of these cases. I disagree that the Crawford requirement is only illusory. There is a difference between a lack of memory and an inability to testify. A witness’s concession that he has no memory of an event is often the very result of effective cross-examination. Flores, 128 Ill. 2d at 90, 538 N.E.2d at 490, quoting Owens, 484 U.S. at 561-62, 98 L. Ed. 2d at 959, 108 S. Ct. at 844. The same cannot be said of an inability to testify.
I have no quarrel with the proposition that the hearsay statement can be admitted so long as the declarant testifies, even though the declarant denies making the statement. It is true that sometimes the probative value of the hearsay statement will greatly outweigh any statement made on cross-examination. See Crawford, 541 U.S. at 60 n.9, 158 L. Ed. 2d at 198 n.9, 124 S. Ct. at 1369 n.9 (discussing statements made by a coconspirator during the course of the conspiracy). Nevertheless, when the declarant is subjected to cross-examination and is present to defend or explain the statement, the constitutional requirement is satisfied. That did not happen here.