In Re EH
In this case the appellate court found section 115-10 of the Code of Criminal Procedure of 1963 (
BACKGROUND
Due to our disposition of this case, our recitation of the underlying facts will be brief.
In November 2000, the State brought a petition in the circuit court of Cook County for adjudication of wardship against the minor defendant, E.H. The petition alleged that E.H. had engaged in numerous instances of improper sexual conduct with the minor victims K.R. and B.R. while she was their babysitter in 1999. During pretrial proceedings, the court was called upon to determine whether to admit into evidence at trial out-of-court statements K.R. and B.R. made to their grandmother. The court determined that the statements were admissible pursuant to section 115-10 of the Code of Criminal Procedure (
The case proceeded to a bench trial, where the court found defendant guilty of aggravated criminal sexual abuse and aggravated criminal sexual assault of each of the minor victims K.R. and B.R. The court judged defendant to be delinquent and made her a ward of the court.
The appellate court initially affirmed the circuit court‘s judgment in a Rule 23 order (No. 1-01-2776 (2004) (unpublished order under Supreme Court Rule 23)). The
In a petition for rehearing, defendant argued that the appellate court had erred in failing to address Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), a case which reinterpreted the confrontation clause of the sixth amendment to the United States Constitution (
Notwithstanding that the above holding sufficed to fully decide the case, the court went on to “address the constitutionality of section 115-10 under Crawford and the confrontation clause.” 355 Ill.App.3d at 576, 291 Ill.Dec. 443, 823 N.E.2d 1029. In a paragraph of analysis, the appellate court summed up section 115-10 as “seek[ing] to admit a declarant‘s out-of-court statement into evidence, without the declarant being present in court, as long as there is some other evidence that corroborates the out-of-court statement and the statement is deemed reliable.” 355 Ill. App.3d at 577, 291 Ill.Dec. 443, 823 N.E.2d 1029. After a brief quote from Crawford, the court concluded, “The applicability of Crawford to section 115-10 could be no clearer. Therefore, we find section 115-10 unconstitutional.” 355 Ill.App.3d at 577, 291 Ill.Dec. 443, 823 N.E.2d 1029.
In dissent, Justice Quinn raised numerous objections to the majority opinion. Relevant to our decision here, the dissent argued first that the appellate majority erred in reaching E.H.‘s Crawford argument without first addressing her argument that admission of the statements violated section 115-10. 355 Ill.App.3d at 578-79, 291 Ill.Dec. 443, 823 N.E.2d 1029 (Quinn, J., dissenting). Justice Quinn contended that it was inappropriate to decide the case on a constitutional ground without first considering potential nonconstitutional decision bases, and noted that a prior decision of the appellate court established the order in which issues should be addressed in such cases:
“`It is important to note that in determining whether a prior out-of-court statement is admissible, the proponent of the statement first must meet the requirements of the applicable statutory hearsay exception as set out in section 115-10 et seq. ( 725 ILCS 5/115-10 et seq. (West 2002)). The holding in Crawford should be considered only after the court determines the proffered statement complies with the requirements of the applicable statute.‘” (Emphases added.) 355 Ill.App.3d at 578-79, 291 Ill. Dec. 443, 823 N.E.2d 1029 (Quinn, J., dissenting), quoting People v. Martinez, 348 Ill.App.3d 521, 535, 284 Ill.Dec. 546, 810 N.E.2d 199 (2004).
The dissent also argued that the majority‘s as-applied Crawford analysis was flawed and that the majority erred in finding section 115-10 facially unconstitutional. 355 Ill.App.3d at 580-83, 291 Ill.Dec. 443, 823 N.E.2d 1029 (Quinn, J., dissenting).
Because the appellate court declared a statute of this state unconstitutional, this appeal as of right followed.
ANALYSIS
We have repeatedly stated that cases should be decided on nonconstitutional grounds whenever possible, reaching constitutional issues only as a last resort. See, e.g., People v. Lee, 214 Ill.2d 476, 482, 293 Ill.Dec. 267, 828 N.E.2d 237 (2005); In re Detention of Swope, 213 Ill.2d 210, 218, 290 Ill.Dec. 232, 821 N.E.2d 283 (2004), quoting In re S.G., 175 Ill.2d 471, 479, 222 Ill.Dec. 386, 677 N.E.2d 920 (1997); Bonaguro v. County Officers Electoral Board, 158 Ill.2d 391, 396, 199 Ill.Dec. 659, 634 N.E.2d 712 (1994); In re Application of Rosewell, 97 Ill.2d 434, 440, 73 Ill.Dec. 748, 454 N.E.2d 997 (1983); Osborn v. Village of River Forest, 21 Ill.2d 246, 249-50, 171 N.E.2d 579 (1961); Donoho v. O‘Connell‘s, Inc., 18 Ill.2d 432, 436, 164 N.E.2d 52 (1960); City of Detroit v. Gould, 12 Ill.2d 297, 304, 146 N.E.2d 61 (1957); People ex rel. Downs v. Scully, 408 Ill. 556, 97 N.E.2d 829 (1951); People v. Chiafreddo, 381 Ill. 214, 219, 44 N.E.2d 888 (1942); Illinois Central R.R. Co. v. Chicago & Great Western Ry. Co., 246 Ill. 620, 624, 93 N.E. 44 (1910). Yet our admonitions on this topic seem to fall not infrequently on deaf ears. The situation has become so untenable that we have recently taken the somewhat extraordinary step of adding to our rules a requirement that before deciding a case on constitutional grounds, the court must state, in writing, that its decision cannot rest upon an alternate ground. See
The appellate court‘s decision presents yet another example of reaching constitutional issues unnecessarily. The appellate court initially filed a decision based on nonconstitutional grounds—the court ruled the evidence at issue was inadmissible for failure to comply with the statutory requirements, but that this error was harmless. No. 1-01-2776 (2004). On rehearing, however, the court inexplicably deleted this analysis and, over dissent on this precise point (see 355 Ill.App.3d at 578-79, 291 Ill.Dec. 443, 823 N.E.2d 1029 (Quinn, J., dissenting)), proceeded directly to a confrontation clause analysis without addressing any possible nonconstitutional grounds for deciding the case. 355 Ill. App.3d at 574-75, 291 Ill.Dec. 443, 823 N.E.2d 1029.
This alone was erroneous, as we have repeatedly attempted to make plain. However, the appellate court went on, having already decided the case before it, to
As we recently stated, courts “should not compromise the stability of the legal system by declaring legislation unconstitutional when a particular case does not require it.” People v. Lee, 214 Ill.2d 476, 482, 293 Ill.Dec. 267, 828 N.E.2d 237 (2005), citing Trent v. Winningham, 172 Ill.2d 420, 425, 217 Ill.Dec. 741, 667 N.E.2d 1317 (1996). That being so, it should go without saying that courts should not declare statutes facially unconstitutional in dictum.
We agree entirely with the court in Martinez and Justice Quinn‘s dissent. When a court is asked to evaluate the admission of out-of-court statements into evidence, the first step is determining whether the statement passes muster as an evidentiary matter. If the proponent seeks to admit the statement pursuant to section 115-10, the statement must be evaluated to see whether it meets that statute‘s requirements; if it is sought to be admitted pursuant to an exception to the hearsay rule, that claim must be evaluated. Only once the statement has first been found admissible as an evidentiary matter should constitutional objections—including Crawford-based confrontation clause claims—be dealt with. 355 Ill.App.3d at 578-79, 291 Ill.Dec. 443, 823 N.E.2d 1029 (Quinn, J., dissenting), quoting Martinez, 348 Ill.App.3d at 535, 284 Ill.Dec. 546, 810 N.E.2d 199. This is the only analytical “flow chart” that comports with the rule that courts must avoid considering constitutional questions where the case can be decided on nonconstitutional grounds.
Thus, in this case, the appellate court should have proceeded as follows. The first question is whether the circuit court erred in ruling that B.R.‘s statements were admissible pursuant to section 115-10. If this ruling was error, the next question is whether that error was harmless. If it was error and it was not harmless, that ends the case and E.H. must receive a new trial. Only if the circuit court‘s section 115-10 ruling was not error, or was error but harmless (under the harmless error analysis applicable to that ruling), should the court turn to the constitutional challenge to the evidence.
Even then, if the appellate court ruled the circuit court‘s section 115-10 ruling was error but harmless error, the court must first consider whether it is necessary to consider the constitutional question in light of the fact that the court had already ruled admission of the evidence harmless. It is true that there is a somewhat higher bar for constitutional error than other trial error to be deemed harmless. Compare, e.g., People v. Nevitt, 135 Ill.2d 423, 447, 142 Ill.Dec. 854, 553 N.E.2d 368 (1990) (evidentiary error is harmless “where there is no reasonable probability that the jury would have acquitted the defendant absent the” error (emphasis added)), with Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-11 (1967) (“before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt” (emphasis added)). Because of the different standards of review, there could theoretically exist a narrow set of cases in which admission of the same evidence is harmless if considered as an evidentiary error, but not harmless if evaluated pursuant to the constitutional
This case is only before us as of right because of the appellate court‘s rulings on the constitutional issues. The appellate court reached those issues improperly, however. Accordingly, we vacate the court‘s January 2005 judgment and remand the cause to the appellate court with directions that the court first address the nonconstitutional issues, reaching constitutional issues only if necessary to decide the case. See Wade v. City of North Chicago Police Pension Board, 215 Ill.2d 620, 620, 293 Ill.Dec. 312, 828 N.E.2d 282 (2005) (supervisory order) (directing appellate court to vacate judgment which had addressed constitutional question and to address alternate nonconstitutional ground for resolving case); Turcol v. Pension Board of Trustees of the Matteson Police Pension Fund, 214 Ill.2d 521, 524, 293 Ill.Dec. 307, 828 N.E.2d 277 (2005) (dismissing appeal and remanding to appellate court to consider alternate nonconstitutional ground for resolving case); Illinois Central, 246 Ill. at 623-24, 93 N.E. 44 (transferring cause to appellate court where it appeared that constitutionality was not at issue due to resolution of other issues in case).
CONCLUSION
For the reasons above stated, we vacate the appellate court‘s judgment and remand to that court with directions that the court first consider the nonconstitutional issues raised, reaching the constitutional issues only if necessary.
Vacated and remanded.
Chief Justice THOMAS and Justices FITZGERALD, KILBRIDE, GARMAN, and KARMEIER concurred in the judgment and opinion.
Justice BURKE took no part in the consideration or decision of this case.