Before turning to a Discussion of Green, we think it appropriate to identify the nature of the videotaped testimony authorized by our statute. Although the legislature appears not to have recognized it as such, the videotape is pure hearsay, since it is an out-of-court statement offered to prove the truth of the matter asserted. See Note, The Testimony of Child Victims, 98 Harv. L. Rev. at 813 (noting that the texts of videotape statutes enacted by various States reveal little recognition that videotaped statements are hearsay); see also Long v. State (Tex. Crim. App. 1987), 742 S.W.2d 302, 328 (Teague, J., Concurring) (accurately characterizing videotape made pursuant to statute as an out-of-court hearsay videotape interview).
SUPREME COURT OF ILLINOIS.
541 N.E.2d 670, 129 Ill. 2d 64, 133 Ill. Dec. 459 1989.IL.926
Motion for a supervisory order.
JUSTICE STAMOS delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS
At issue in this case, which is before us on the State's motion for a supervisory order, is the constitutionality of section 106A-2 of the Illinois Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 106A-2). Section 106A-2 provides that in a child sexual abuse case, the trial court may order that the child's "oral statement or testimony" be recorded on videotape. The videotape is admissible at trial if, among other things, the child is available to testify at trial. We hold that the challenged provision is unconstitutional.
In the underlying case, defendant, Steven E. Morris, is charged with three counts of aggravated criminal sexual assault. On February 5, 1988, the State filed in the circuit court a motion to record testimony pursuant to section 106A -- 2, requesting leave to record the minor victim's testimony on videotape.
The trial court denied the motion on the grounds that the statute violates defendant's rights of confrontation and due process as guaranteed by the sixth and fourteenth amendments to the United States Constitution. Among the written reasons given by the court for denying the motion are the following. The defendant's inability, under the statute, to cross-examine the witness contemporaneously with the witness' direct testimony denies defendant his right to confront his accuser. The opportunity to cross-examine the witness at trial, which may take place months after the videotaping, is not an adequate safeguard of the right to confrontation. The State may be able to introduce its evidence twice, first by showing the videotape, and again when the child is called to testify. Finally, the statute does not specify upon what basis the State's motion to utilize the statute may be granted.
On June 13, 1988, the trial court denied the State's motion for reconsideration, and in its order denying that motion, stated that in addition to the Federal Constitution, provisions of the Illinois Constitution also justified denial of the motion to record testimony.
The State then filed in this court a motion for leave to file a motion for supervisory order. Named as respondents are the defendant in the underlying case, Steven Morris (respondent), and the trial court Judge, the Honorable Robert Bastien, Judge of the circuit court of the 20th Judicial Circuit (trial court). Respondent filed objections to the motion for supervisory order. On September 14, 1988, this court entered an order setting the motion for supervisory order for briefing and staying proceedings in the underlying prosecution pending Disposition of the supervisory order motion. Respondent filed briefs in this court supporting the trial court's order declaring the statute unconstitutional.
THE ILLINOIS VIDEOTAPE STATUTE
Section 106A -- 2 of the Code of Criminal Procedure provides in full:
"(a) Upon motion of the State at any time before the trial of the defendant begins, the court may order that a child's oral statement or testimony be recorded. The recording shall be made in the presence of the court, the attorneys for the defendant and for the prosecution, and, in addition, may be made in the presence of the operator of the recording equipment, necessary security personnel, and any person who, in the court's discretion would contribute to the welfare and well-being of the child. The defendant shall be permitted to be present at the making of the recording. Only the attorney for the prosecution or the court may question the child. The court shall rule on evidentiary objections of the attorney for the defendant.
(b) The recording, or portions of the recording, may be admissible into evidence upon motion of either the ...