EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, July 26, 2008

Theatre Of The Absurd?: Prosecutors Will Seek To Admit Former Testimony In Retrial After Bizarre Re-Enactment Led To Reversal

The impending murder retrial of Kenneth E. Smith in Illinois has a strange past and what looks to be an interesting future.  Smith, Justin Houghtaling, and Jennifer McMullan were charged with the 2001 slaying of Lakemoor businessman Raul Briseno.  Houghtaling quickly cut a deal with county prosecutors in which he received the minimum 20-year sentence in exchange for his testimony against Smith and McMullan.  While Houghtaling kept his word and testified against McMullan, he clammed up when it came time to take the witness stand against Smith.  This resulted in a theatre of the absurd unprecedented (as far as I am aware) in American legal history:  prosecutors re-enacted Houghtaling's testimony from the McMullan trial, with an assistant McHenry County state's attorney playing the role of Houghtaling for Smith's jury.  The gambit worked, and Smith was convicted, but an appellate court reversed, apparently finding that while all the world's a stage, lawyers shouldn't be players.

This sets the stage for Smith's impending retrial, and it again appears that Houghtaling will refuse to testify despite the threat of a contempt finding hanging over his head.  In a motion scheduled to be heard later this month, the McHenry County state's attorney's office is asking for the judge's permission to question Houghtaling as a hostile witness if he refuses to answer questions.  If the motion is granted, prosecutors believe they can bring in Houghtaling's earlier testimony either through a hearsay exception or as a prior inconsistent statement.  It's likely that Smith's defense, which would rather not hear from Houghtaling at all, will ask the judge to deny the request.

This, of course, begs the question of whether the prosecution could indeed bring in Houghtaling's  testimony from the McMullan trial should he refuse to testify.  Let's look first at the former testimony exception to the hearsay rule.  Illinois recognizes an exception to the hearsay rule for former testimony, provided that the witness is unavailable and that "the matter in issue and the parties are essentially the same in both causes." Kendor v. Department of Correction, 467 N.E.2d 1107, 1110 (Ill.App. 1 Dist. 1984).  Should Houghtaling refuse to testify, he would meet the unavailability requirement.  People v. Ramey, 604 N.E.2d 275, 289 (Ill. 1992).  The problem, though, is that the parties are not "essentially the same" in both trials.  Smith was not a party to the McMullan trial, and thus, using the words of the federal former testimony exception, he neither had an opportunity nor a similar motive to develop  Houghtaling's testimony at that trial.

Let's look next at prior inconsistent statement, which courts deem admissible to contradict a witness' trial testimony.  Illinois courts have consistently held that when a witness refuses to testify, there is no present testimony, meaning that the witness cannot be impeached through a prior inconsistent statement. See People v. Redd, 553 N.E.2d 316 (Ill. 1990); 725 ILCS 5/115-10.1.

So, does that mean that the prosecution is out of luck?  That's the way it looks to me, unless the court finds that Houghtaling's prior testimony is admissible under 725 ILCS 5/115-10.2, Illinois' residual hearsay statute, but I don't have enough facts yet to be able to determine whether this rarely applicable statute would apply.



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Apart from the hearsay objection, wouldn't Smith have a decent confrontation objection? State v. Hale, 2005 WI 7, http://www.wicourts.gov/html/sc/03/03-0417.htm (given unavailability, witness's prior testimony at codefendant’s separate trial inadmissible at Hale’s trial under Crawford v. Washington).

Posted by: wm. tyroler | Jul 26, 2008 9:09:06 AM

That's true, and the Confrontation Clause problem is, in essence, conected to the former testimony problem. Because Smith didn't have the opportunity and a similar motive to develop Houghtaling's testimony at the earlier trial, the testimony is not admissible under the former testimony exception and inadmissible based upon Confrontation Clause problems. If Smith did have such an opportunity, there would be no former testimony problem and no Confrontation Clause problem.

Posted by: Colin Miller | Jul 26, 2008 10:59:08 AM

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