Agenda 19-September 1999.
JUSTICE RATHJE delivered the opinion of the court:
At issue in this appeal is the constitutionality of section 115-15 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-15 (West 1998)). This section allows the State, in prosecutions under the Cannabis Control Act (720 ILCS 550/1 et seq. (West 1998)) or the Illinois Controlled Substances Act (720 ILCS 570/100 et seq. (West 1998)), to use lab reports in lieu of actual testimony as prima facie evidence of the contents of the substance at issue unless the defendant files a demand for the testimony of the witness who prepared the report. The demand must be filed within seven days of the defense's receipt of the report.
Defendant, Donald E. McClanahan, was charged with unlawful possession of less than 15 grams of cocaine (720 ILCS 570/402(c) (West 1996)). The State filed supplemental discovery that included the state police crime lab report identifying the substance at issue as cocaine. The State also tendered the affidavit of Sandra Brown, who prepared the lab report. Eight months later, defendant filed a motion asking the State to call Sandra Brown as a witness at trial. The State objected, arguing that section 115-15 gave it the right to introduce the lab report into evidence without Brown's testimony.
"(a) In any criminal prosecution for a violation of either the Cannabis Control Act or the Illinois Controlled Substances Act, a laboratory report from the Department of State Police, Division of Forensic Services, that is signed and sworn to by the person performing an analysis and that states (1) that the substance that is the basis of the alleged violation has been weighed and analyzed, and (2) the person's findings as to the contents, weight and identity of the substance, and (3) that it contains any amount of a controlled substance or cannabis is prima facie evidence of the contents, identity and weight of the substance. Attached to the report shall be a copy of a notarized statement by the signer of the report giving the name of the signer and stating (i) that he or she is an employee of the Department of State Police, Division of Forensic Services, (ii) the name and location of the laboratory where the analysis was performed, (iii) that performing the analysis is a part of his or her regular duties, and (iv) that the signer is qualified by education, training and experience to perform the analysis. The signer shall also allege that scientifically accepted tests were performed with due caution and that the evidence was handled in accordance with established and accepted procedures while in the custody of the laboratory.
(b) The State's Attorney shall serve a copy of the report on the attorney of record for the accused, or on the accused if he or she has no attorney, before any proceeding in which the report is to be used against the accused other than at a preliminary hearing or grand jury hearing when the report may be used without having been previously served upon the accused.
(c) The report shall not be prima facie evidence of the contents, identity, and weight of the substance if the accused or his or her attorney demands the testimony of the person signing the report by serving the demand upon the State's Attorney within 7 days from the accused or his or her attorney's receipt of the report." 725 ILCS 5/115-15 (West 1998).
In his motion to compel the State to call Brown as a witness, defendant argued that the seven-day demand period was unconstitutional. The trial court denied both that motion and defendant's subsequent motion to reconsider. At trial, a police officer testified that, during a field test, the substance at issue in this case tested positive for cocaine. The State sought to use Brown's lab report and her accompanying affidavit to establish that the substance was in fact cocaine. The lab report and affidavit were admitted into evidence over defendant's objection. The jury found defendant guilty, and the trial court sentenced him to three years' imprisonment.
On appeal, defendant argued that section 115-15 is unconstitutional because it violates the confrontation clauses of the United States and Illinois Constitutions *fn1 (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8) and because it allows defendants to unknowingly waive their constitutional confrontation rights. The appellate court disagreed and affirmed defendant's conviction and sentence. 301 Ill. App. 3d 216.
We granted defendant's petition for leave to appeal. Defendant's argument in this court consists of two main points. The first focuses on the type of evidence that is admissible under the statute; the second focuses on the procedures that the statute requires a defendant to follow to secure his confrontation rights. *fn2
A statute is presumed constitutional, and the party challenging the statute bears the burden of demonstrating its invalidity. In re K.C., 186 Ill. 2d 542, 550 (1999). Whether a statute is constitutional is a question of law that we review de novo. People v. Fisher, 184 Ill. 2d 441, 448 (1998).
"The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845, 111 L. Ed. 2d 666, 678, 110 S. Ct. 3157, 3163 (1990). The confrontation clause permits hearsay evidence to be admitted against a defendant only where either the evidence falls within a firmly rooted hearsay exception or particularized guarantees of trustworthiness assure the reliability of the evidence. Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539 (1980).
Reliability of the Evidence
Defendant's first argument, that the statute violates the confrontation clause, consists of three prongs: (1) the statute does not require the State to establish the unavailability of the crime lab employee before introducing the lab report; (2) the statute neither falls within a firmly rooted hearsay exception nor requires particularized guarantees of trustworthiness; and (3) the statute is not necessary to further an important public policy. We agree with defendant's second point and thus see no need to address the other two arguments.
Defendant's argument is based primarily on Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), in which the Supreme Court held that hearsay evidence must possess certain indicia of reliability. Roberts, 448 U.S. at 65-66, 65 L. Ed. 2d at 607-08, 100 S. Ct. at 2538-39. *fn3 For the third prong of his argument, defendant relies on Craig, 497 U.S. at 850, 111 L. Ed. 2d at 682, 110 S. Ct. at 3166, in which the Supreme Court held that a defendant's right to confront the witnesses against him may be denied only where that denial is necessary to further an important public policy. The State does not address these arguments on their merits, instead choosing to argue that section 115-15 does not create a confrontation clause problem because subsection (c) of the statute allows defendants to preserve their confrontation rights.
We agree with defendant. First, the evidence admissible pursuant to section 115-15 does not fall within a firmly rooted hearsay exception. In the trial court, the State argued that section 115-15 lab reports fall within the business records exception to the hearsay rule. This is unquestionably false. An exception to the business records hearsay exception are those writings or records that have "been made by anyone during an investigation of an alleged offense or during any investigation relating to pending or anticipated litigation of any kind." 725 ILCS 5/115-5(c)(2) (West 1998); People v. Smith, 141 Ill. 2d 40, 72 (1990). The lab reports covered by section 115-15 are prepared during the course of criminal investigations and are requested by the State in anticipation of prosecutions.
Second, section 115-15 does not contain particularized guarantees of trustworthiness. Essentially, the preparer of the report merely has to attest that he or she is qualified to conduct the test and that he or she used due caution and acted within established procedures. Indeed, in this case, the only information as to Sandra Brown's qualifications is her own statement in the affidavit that her "education, training and experience qualify [her] to perform the analyses conducted in this manner." The statute does not require the State to provide any information as to how the tests are conducted, what the accepted scientific procedures are, and what qualifications and training the crime lab employees must have. In other words, after the defendant has been arrested, the entity that seeks to prosecute him sends the evidence to its own lab for testing. The evidence is then admissible on nothing more than the vague assurances of the prosecuting authority's own employee that proper testing was done and that the employee is qualified to do the testing. The State does not argue, nor do we discern, that the statute contains particularized guarantees of trustworthiness.
In sum, we agree with defendant that the lab reports admissible pursuant to section 115-15 neither contain particularized guarantees of trustworthiness nor fall within a firmly established hearsay exception. We turn next to the question of whether any confrontation clause problems are avoided by subsection 115-15(c), which allows defendants to demand the testimony of the report's preparer within seven days of a defendant's receipt of the report.
Defendant's argument with respect to the demand provision of section 115-15(c) consists of two interrelated parts. Defendant argues that section 115-15(c) impermissibly requires defendants to take an affirmative step to secure their confrontation rights or be deemed to have waived them, and that it fails to contain sufficient procedural safeguards to ensure that any such waiver is knowing and voluntary. We agree.
The State does not cite any relevant authority to contravene defendant's argument that defendants cannot be required to take an affirmative step to secure their constitutional confrontation rights. Rather, the State endorses the rationale given by the appellate court in upholding the statute on this basis. The appellate court reasoned that "an accused has a right to put on relevant evidence favorable to him, but he can lose that right by failure to give reasonable required discovery in this regard. [Citations.] By the same logic, a defendant's right of confrontation can be limited by a requirement to take reasonable action such as that required here." 301 Ill. App. 3d at 221-22. The United States Supreme Court disagrees.
In Taylor v. Illinois, 484 U.S. 400, 98 L. Ed. 2d 798, 108 S. Ct. 646 (1988), a case not cited by the appellate court, the Supreme Court considered whether a trial judge's discovery sanction violated the defendant's constitutional right to obtain the testimony of favorable witnesses. In that case, the trial court sanctioned the defense by refusing to allow a defense witness to testify because the defense did not disclose that witness in a pretrial discovery request. The court held that such sanctions were not absolutely prohibited by the compulsory process clause of the sixth amendment (U.S. Const., ...