People v. Sauls , 2022 IL 127732 ( 2022 )

2022 IL 127732IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 127732)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
SAMUEL SAULS, Appellant.
Opinion filed November 28, 2022.
JUSTICE ANNE M. BURKE delivered the judgment of the court, with opinion.
Justices Neville, Overstreet, Carter, and Holder White concurred in the
judgment and opinion.
Justice Michael J. Burke dissented, with opinion, joined by Chief Justice Theis.
OPINION
¶1 Following a jury trial in the circuit court of Champaign County, defendant,
Samuel Sauls, was convicted of one count of predatory criminal sexual assault of a
child and sentenced to 20 years in prison. The appellate court affirmed his
conviction and sentence. 2021 IL App (4th) 190667-U. On appeal to this court,
defendant raises two contentions: (1) that the trial court erred in quashing his
pretrial subpoena duces tecum without first reviewing in camera the requested
discovery documents and (2) that the State failed to prove his guilt beyond a
reasonable doubt. We agree with defendant’s first contention. We therefore reverse
the appellate court’s judgment and remand the cause to the circuit court for further
proceedings consistent with this opinion.
¶2 BACKGROUND
¶3 On August 13, 2018, defendant was charged by information with two counts of
predatory criminal sexual assault of a child. Defendant was acquitted by the jury of
one of the two counts, which we do not address in this appeal. The count for which
defendant was convicted stated, “In that the said defendant, who was 17 years of
age or older, committed an act of contact, however slight, between the sex organ of
the defendant and the hand of [L.G.P.], who was under 13 years of age when the
act was committed, and was for the purpose of sexual gratification or arousal of the
defendant, in violation of [section 11-1.40(a)(1) of the Criminal Code of 2012 (720
ILCS 5/11-1.40(a)(1) (West 2018))].”
¶4 During the pretrial proceedings, defendant filed a supplemental motion for
discovery and production of documents pursuant to Brady v. Maryland, 373 U.S.
83 (1963), and Illinois Supreme Court Rule 412 (eff. Mar. 1, 2001). The motion
requested that the State turn over documents pertaining to a Department of Children
and Family Services (DCFS) investigation against Mercedes G.P., the mother of
L.G.P., and Angel W., Mercedes’s “live-in girlfriend.” The defense specifically
requested “DCFS investigations, police reports, and CAC [(Children’s Advocacy
Center)] interviews regarding allegations of abuse [against Mercedes and Angel]
*** which were done in the Fall of 2018.”
¶5 The State responded that it requested the documents from DCFS but was not
successful in obtaining them. The State also asserted that it had searched local
police databases for police reports that would satisfy defendant’s request but that it
appeared no such reports existed.
¶6 On March 14, 2019, the parties participated in a hearing on defendant’s
supplemental discovery motion. During the hearing, defense counsel explained that
-2-
it had come to her attention that Mercedes and Angel were subject to a DCFS
investigation, including a CAC interview, that was determined to be unfounded. No
documents from this investigation were turned over to the defense. The State
informed the trial court that it had obtained a DCFS case number pertaining to the
abuse allegations described in the defense motion but that it was unable to obtain
any reports. Accordingly, defense counsel offered to prepare a subpoena
duces tecum for the documents.
¶7 The trial judge entered an order directing the circuit court clerk to issue a
subpoena duces tecum, drafted by defense counsel, to DCFS. On April 11, 2019,
the clerk issued a subpoena duces tecum to DCFS, directing it to bring before the
court “[a]ll records of investigations including but not limited to written reports,
video or audio recording created since September 1, 2018, related to [Mercedes or
Angel] in your possession or control.”
¶8 On May 10, 2019, DCFS, through the Attorney General of Illinois, filed a
motion to quash the subpoena. DCFS contended that the records sought by the
subpoena pertained to an unfounded report, which was “confidential and
inadmissible under Illinois law.” In support, DCFS cited section 7.14 of the Abused
and Neglected Child Reporting Act (Reporting Act), which provides:
“[n]otwithstanding any other provision of law to the contrary, an unfounded
report shall not be admissible in any judicial or administrative proceeding or
action except for proceedings under Sections 2-10 and 2-21 of the Juvenile
Court Act of 1987 involving a petition *** alleging abuse or neglect to the same
child, a sibling of the child, or the same perpetrator.” 325 ILCS 5/7.14 (West
2018).
Alternatively, DCFS offered to turn over the report to the trial court for an
in camera review. If, after reviewing the report, the court determined that limited
disclosure was warranted, DCFS requested that the court enter a protective order
prohibiting disclosure of the names or identifying information in the report.
¶9 At a hearing on the motion to quash subpoena, the State objected to an
in camera review of the requested documents because the DCFS report was
unfounded and not admissible at trial. Defense counsel argued that the information
in the reports was relevant because it pertained to the interests and biases of the
-3-
victim’s mother and her live-in girlfriend and might reveal contradictory statements
by the witnesses. The trial court indicated it understood defendant was requesting
“to look at unfounded reports for potential impeachment of a witness that testifies
at trial.” Nevertheless, after hearing argument from both parties, the trial court
granted DCFS’s motion and quashed the subpoena, without requiring production
or in camera review of the requested documents.
¶ 10 The case proceeded to a jury trial on July 29, 2019. L.G.P. testified that in
August 2017, when she was seven years old, she and her sister, J.G.P., stayed
overnight at defendant’s house with defendant’s daughter, N.S. N.S. was L.G.P.
and J.G.P.’s cousin. L.G.P. testified that she thought her grandmother dropped her
off at the sleepover.
¶ 11 L.G.P. testified that she fell asleep while watching a movie in defendant’s
bedroom with J.G.P., N.S., and defendant. She testified that she and her sister were
on the floor and N.S. and defendant were on defendant’s bed. At some point during
the night, L.G.P. woke up in defendant’s bed. She did not know how she got there.
L.G.P. testified that, when she woke up in defendant’s bed, she initially thought she
was holding her fingers. She then realized she was holding defendant’s “private” in
her hand. She testified that defendant “was just laying down right there and just on
his phone I think.” She could not remember what defendant was wearing but
thought he had on a T-shirt. L.G.P. testified that her hands had “sticky stuff” on
them, so she went to the bathroom to wash them and then went back to sleep. She
said that the lighting was “darkish, lightish” and could not remember if the
television in the bedroom was on.
¶ 12 L.G.P. testified that she did not tell her mother about the incident right away
because she was scared. Eventually, she said, she did tell her mother about the
incident when she saw N.S. and defendant together “ ‘[c]ause I thought he would
try to get [N.S.] *** it upset me ’cause I didn’t want [N.S.] to go over there cause
[unintelligible] same thing happen to her.”
¶ 13 On cross-examination, L.G.P. stated she could not remember the color of the
sheets or the number of pillows on the bed. When asked whether she remembered
telling someone that defendant’s hands were under his head and not holding his
phone, she responded: “I can’t really remember that good, if he had a phone or not.
-4-
I could just remember, like, the bedroom stuff and like, what happened. But I don’t
really know the details of stuff.”
¶ 14 Francisco G., L.G.P.’s father, testified that in August 2017 he attended a family
birthday party for defendant’s daughter and L.G.P.’s cousin, N.S., who was turning
three years old. Francisco testified that, after the party, defendant invited L.G.P.
and her younger sister, J.G.P., to his house for a sleepover with N.S. Francisco
testified that, on the day after the sleepover, L.G.P. said “she didn’t want to go back
[to defendant’s house].” When Francisco asked why, “she just looked down ***
but she didn’t say—she wouldn’t say why.”
¶ 15 Mercedes, L.G.P.’s mother, testified that she and Francisco dropped L.G.P. and
J.G.P. off at defendant’s house on the day after N.S.’s third birthday, and they
picked them up the following day. Mercedes testified that the girls were quiet in
the car. According to Mercedes, L.G.P. told her “a couple days later” that she did
not “ever want to spend the night with [defendant] again.” Mercedes asked why,
and L.G.P. explained that she woke up with defendant’s finger in her hand and then
asked to use the bathroom to wash her hands. L.G.P. also said that defendant was
not wearing a shirt or boxers. Mercedes then asked if anything felt “not normal” to
her or if she had been touched, but L.G.P. said no.
¶ 16 Mercedes testified that in May 2018, she had a family gathering at her house,
which N.S. attended. L.G.P. later saw N.S. getting into defendant’s car and told
Mercedes: “Mama, please. Don’t let her go with him ’cause he’s going to do what
he did to me. It wasn’t his finger, *** it was his private part.” After this disclosure,
Mercedes scheduled a doctor’s appointment for L.G.P.
¶ 17 Dr. Mary Kathleen Buetow, a licensed pediatrician specializing in child abuse
and neglect, testified that she met with L.G.P. and Mercedes. Dr. Buetow and a
clinical social worker interviewed L.G.P. in an exam room outside the presence of
her mother. During the interview, L.G.P. explained that she had stayed the night
with defendant because she wanted to have a sleepover with N.S. L.G.P. told Dr.
Buetow she slept in the same room as N.S., J.G.P., and defendant; L.G.P. and
defendant slept in the bed, while J.G.P. and N.S. slept on a “pallet” on the floor.
L.G.P. continued: “[W]hen I woke up I thought I was holding [defendant’s] finger,
but it wasn’t his finger. It was his private part. It was his penis, and my hand was
wet so I got up and went to the bathroom and washed my hand.” According to Dr.
-5-
Buetow, L.G.P. told her that she did not ever want to be around defendant, that she
was having nightmares and would see his face in the middle of the night, and that
she was very fearful of him and not sleeping well. Dr. Buetow gave L.G.P. an
examination, in Mercedes’s presence, which did not indicate any physical injury or
infection. Dr. Buetow testified that she reported L.G.P.’s allegations to DCFS.
¶ 18 Chad Turner, a child protective investigator for DCFS, testified that he
conducted a forensic interview with L.G.P. at the CAC. The interview was
recorded. The recording was admitted into evidence and played for the jury. In her
CAC interview, L.G.P. stated that she spent the night at defendant’s house after
N.S.’s birthday party. L.G.P. said there was a bed and a pallet in defendant’s room
and that she slept on the bed. She later clarified that she fell asleep on the pallet but
woke up in the bed. In describing the incident, L.G.P. stated, “I was lying down,
and I thought I was holding his finger, and I woke up and it was his private. So, I
said can I go to the bathroom. I went to the bathroom and washed my hands. I came
back and laid down.” L.G.P. explained that she washed her hands because they
were “like wet kind of.” L.G.P. said defendant “had a t-shirt on but his underwear
was pulled down.” She also stated that defendant was “laying on his hands” and
made a gesture of two hands, palms together, under the side of her head. Turner
asked L.G.P. to indicate on an anatomical diagram which part of defendant’s body
was in her hand. L.G.P. pointed to the penis on the diagram. When asked to describe
what was on her hands, she said that it was like “sticky kind of water.”
¶ 19 On cross-examination, Turner acknowledged that defendant’s wife, Desiree
P.S., had told him about a “physical altercation” between defendant and Mercedes
that occurred shortly before L.G.P. “started to appear to be afraid of [defendant].”
Turner testified that this did not give him cause to believe that L.G.P. had been
coached. Following Turner’s testimony, the State rested.
¶ 20 Rose P., L.G.P.’s grandmother, testified that N.S. and Desiree had lived with
her since early 2017. Rose said she attended N.S.’s birthday party in 2017 and
dropped off clothes for her at defendant’s house the next day. According to Rose,
N.S. was the only child present. Rose stated that defendant had a positive
relationship with L.G.P. and J.G.P. She testified that the girls were “always glad”
to see defendant and that he would “pick them up and hug them and put them
down.”
-6-
¶ 21 Rose testified that over the Memorial Day weekend in 2018, Mercedes and her
friend, Angel, were at Rose’s house with L.G.P. and other family members. Rose
left briefly, and when she returned, “everyone was hollering.” Rose testified that
L.G.P. was standing on the porch and that Angel and Mercedes were repeatedly
telling L.G.P. to “[t]ell them, *** tell them what’s next.” Rose testified that she did
not see L.G.P. and J.G.P. as frequently after this event.
¶ 22 Desiree testified that she had been separated from defendant since 2015.
Desiree attended N.S.’s birthday party in 2017 and said N.S. stayed with defendant
for a few days after the party. Desiree testified that, earlier in 2017, she had been
fighting with defendant over taxes and, at that time, everyone knew that Desiree
was not talking to defendant or letting him see N.S. On one occasion, Desiree
testified, defendant came to the house when Mercedes, L.G.P., and J.G.P. were
present. This led to Mercedes trying to keep defendant from coming into the house
to get N.S. against Desiree’s wishes and to defendant pushing Mercedes in front of
L.G.P. and J.G.P., who were shocked. Desiree testified that she and defendant
eventually resolved the tax issue and defendant came around more often. She
testified that L.G.P. and J.G.P. always smiled around him and that she never
observed fear or reticence toward defendant. On cross-examination, Desiree
testified that she was not at defendant’s house after N.S.’s birthday party and did
not know whether L.G.P. and J.G.P. stayed overnight at defendant’s house.
¶ 23 Defendant testified in his own defense. He testified that N.S. stayed with him
after her birthday party but that L.G.P. and J.G.P. did not stay that night. Defendant
testified that when his nieces had stayed overnight on previous occasions, they
would sleep in his bedroom, and he would sleep on the couch in the living room.
He testified he had never set up a pallet for them, and they had never slept on the
floor at his house. Defendant also testified that he had not shared a bed with his
nieces since they were “in diapers.” Defendant denied ever putting his penis in
L.G.P.’s hand.
¶ 24 Following the presentation of evidence and closing arguments, the jury found
defendant guilty of one count of predatory criminal sexual assault of a child. The
trial court later sentenced defendant to 20 years in prison.
¶ 25 The appellate court affirmed defendant’s conviction. 2021 IL App (4th)
190667-U. The court first held that the evidence was sufficient to sustain
-7-
defendant’s conviction beyond a reasonable doubt. Id. ¶ 53. The court next rejected
defendant’s argument that the trial court deprived him of his constitutional right to
material evidence by quashing his subpoena duces tecum without first reviewing
the documents in camera. Id. ¶¶ 55, 60. Citing Pennsylvania v. Ritchie, 480 U.S.
39 (1987), the court held that defendant “failed to establish a basis for his claim that
the unfounded report by DCFS contained material evidence.” 2021 IL App (4th)
190667-U, ¶ 60.
¶ 26 The court reasoned as follows:
“At the hearing on the motion to quash, defendant argued the information in the
report ‘could be relevant in several ways ***.’ Specifically, defendant asserted
the report could show ‘interest and bias *** of the mother of the children ***
who made these allegations.’ Defendant additionally maintained that ‘if there’s
contradictory statements, that would certainly be Brady material as well.’
However, defendant failed to describe how the report might establish interest
or bias on Mercedes’s part or explain how the presence of ‘contradictory
statements’ by Mercedes could constitute material evidence. Even if defendant
had provided further explanation as to how the unfounded report could bolster
his claim of Mercedes’s interest or bias, given the nature of the evidence in this
case—primarily L.G.P.’s trial testimony and CAC statement directly
implicating defendant of the crime—it appears unlikely that disclosure of the
report would have resulted in a reasonable probability the jury would have
found defendant not guilty. Thus, we do not find defendant made the requisite
showing that the unfounded report was material evidence, which is necessary
in order to implicate a defendant’s constitutional right to discover privileged
information. [Citation.] Accordingly, because defendant failed to establish a
basis for his claim he was entitled to an in camera review of the DCFS records,
we conclude the trial court’s decision to quash the subpoena was not an abuse
of discretion. See Ritchie, 480 U.S. at 58 n.15.” Id.¶ 27 Finally, the appellate court rejected defendant’s argument that the trial court’s
voir dire examination violated Illinois Supreme Court Rule 431(b) (eff. July 1,
2012). 2021 IL App (4th) 190667-U, ¶ 62.
-8-
¶ 28 This court allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315
(eff. Oct. 1, 2021).
¶ 29 ANALYSIS
¶ 30 I. Subpoena Duces Tecum
¶ 31 Defendant argues that the trial court erred in quashing his subpoena
duces tecum without first requiring production of the relevant documents,
reviewing the documents in camera to determine whether any material information
was contained therein, and disclosing that material information to the defense.
According to defendant, this violated his constitutional right to any Brady evidence
that may have been in the report. Defendant requests that we remand to the trial
court with directions to perform an in camera review of the subpoenaed documents
and, if the trial court determines that the records contain information that probably
would have changed the outcome of the trial, grant defendant a new trial.
¶ 32 A trial court’s discovery rulings generally are subject to review under an abuse
of discretion standard. People v. Williams, 209 Ill. 2d 227, 234 (2004). We review
de novo, however, whether defendant was denied due process and, if so, whether
that denial was prejudicial. People v. Arze, 2016 IL App (1st) 131959, ¶ 104 (citing
People v. K.S., 387 Ill. App. 3d 570, 573 (2008)).
¶ 33 A subpoena duces tecum is a judicial process that compels a person to appear
in court and present specified documents, records, or things. People v. Shukovsky,
128 Ill. 2d 210, 222 (1988); Black’s Law Dictionary (11th ed. 2019). Subpoenaed
documents are sent directly to the court, which then determines the relevancy of the
documents and whether they are privileged, as well as whether the subpoena is
unreasonable or oppressive. People ex rel. Fisher v. Carey, 77 Ill. 2d 259, 265
(1979). A criminal defendant’s right to compel production of documents through a
subpoena is protected by the sixth amendment to the United States Constitution
(U.S. Const., amend. VI), as applied to the states through the due process clause of
the fourteenth amendment (U.S. Const., amend. XIV), and applies to discovery in
all criminal prosecutions. People ex rel. Fisher, 77 Ill. 2d at 265. To justify the
issuance of a subpoena duces tecum, the moving party must show:
-9-
“ ‘(1) that the documents are evidentiary and relevant; (2) that they are not
otherwise procurable reasonably in advance of trial by exercise of due
diligence; (3) that the party cannot properly prepare for trial without such
production and inspection in advance of trial and that the failure to obtain such
inspection may tend unreasonably to delay the trial; and (4) that the application
is made in good faith and is not intended as a general “fishing expedition.” ’ ”
Id. at 269 (quoting United States v. Nixon, 418 U.S. 683, 699-700 (1974)).
¶ 34 DCFS did not object to the subpoena duces tecum on the grounds that the
requested documents were not evidentiary or relevant, that the documents were
otherwise procurable reasonably in advance of trial by the exercise of due diligence,
that the defense could properly prepare for trial without production and inspection
of the documents, that the application was not made in good faith or was intended
as a general “fishing expedition,” or that compliance with the subpoena would be
unreasonable or oppressive. Rather, the sole basis for the motion to quash was that
the documents were confidential and inadmissible under section 7.14 of the
Reporting Act. See 325 ILCS 5/7.14 (West 2018) (“[n]otwithstanding any other
provision of law to the contrary, an unfounded report shall not be admissible in any
judicial or administrative proceeding or action except for proceedings under
Sections 2-10 and 2-21 of the Juvenile Court Act of 1987”). As such, this case falls
squarely within the framework set forth in Ritchie, 480 U.S. 39.
¶ 35 In Ritchie, the defendant, George Ritchie, was charged with rape, involuntary
deviate sexual intercourse, incest, and corruption of a minor, his then-13-year-old
daughter. Id. at 43. During pretrial discovery, Ritchie served the investigative
agency, Children and Youth Services (CYS), with a subpoena, seeking access to
records pertaining to the current charges. Id. He also sought records contained in a
separate report of child abuse involving his children. CYS refused to comply with
the subpoena. It argued that the records were privileged under a Pennsylvania
statute providing that all information obtained in a CYS investigation must be kept
confidential, subject to 11 specific exceptions. Id. One of those exceptions was that
CYS may disclose the reports to a “ ‘court of competent jurisdiction pursuant to a
court order.’ ” Id. at 43-44 (citing 11 Pa. Stat. Ann., § 2215(a)(5) (Purdon Supp.
1986)).
- 10 -
¶ 36 Ritchie moved to sanction CYS for failing to honor the subpoena. During a
hearing on the motion, Ritchie argued “that he was entitled to the information
because the file might contain the names of favorable witnesses, as well as other,
unspecified exculpatory evidence.” Id. at 44. The trial court denied the motion, but
the appellate court reversed and remanded for further proceedings. Id. at 45. The
Supreme Court of Pennsylvania affirmed, holding that Ritchie, through his counsel,
was entitled to review the entire CYS file to search for evidence useful to his
defense. Id. at 46.
¶ 37 On appeal to the United States Supreme Court, the Court first restated the well-
settled principle that “the government has the obligation to turn over evidence in its
possession that is both favorable to the accused and material to guilt or
punishment.” Id. at 57 (citing Brady, 373 U.S. at 87). “Materiality,” the Court held,
is defined as “ ‘a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different,’ ” and a
“reasonable probability” is “ ‘a probability sufficient to undermine confidence in
the outcome.’ ” Id. (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
The Court recognized the impossibility of determining materiality, however, when
neither the parties nor the court have access to the confidential documents:
“At this stage, of course, it is impossible to say whether any information in
the CYS records may be relevant to Ritchie’s claim of innocence, because
neither the prosecution nor defense counsel has seen the information, and the
trial judge acknowledged that he had not reviewed the full file. The
Commonwealth, however, argues that no materiality inquiry is required,
because a statute renders the contents of the file privileged. Requiring
disclosure here, it is argued, would override the Commonwealth’s compelling
interest in confidentiality on the mere speculation that the file ‘might’ have been
useful to the defense.” Id.¶ 38 The Court rejected the Commonwealth’s argument. It held that the
Pennsylvania statute did not provide an absolute privilege against disclosure of
CYS documents but, rather, allowed disclosure under certain circumstances. Id. at
57-58. For this reason, the Court concluded that the statute did not prevent all
disclosure in criminal proceedings, as the Commonwealth contended. Id. at 58.
Rather, “[i]n the absence of any apparent state policy to the contrary, we therefore
- 11 -
have no reason to believe that relevant information would not be disclosed when a
court of competent jurisdiction determines that the information is ‘material’ to the
defense of the accused.” Id.
¶ 39 The Court held that the privacy interests inherent in the CYS files could be
balanced with Ritchie’s right to Brady evidence through the same in camera review
procedure requested by defendant in this case:
“We therefore affirm the decision of the Pennsylvania Supreme Court to the
extent it orders a remand for further proceedings. Ritchie is entitled to have the
CYS file reviewed by the trial court to determine whether it contains
information that probably would have changed the outcome of his trial. If it
does, he must be given a new trial. If the records maintained by CYS contain
no such information, or if the nondisclosure was harmless beyond a reasonable
doubt, the lower court will be free to reinstate the prior conviction.” Id.
In so holding, the Court disagreed with the Pennsylvania Supreme Court that the
defense was entitled to unfettered access to the files to search for useful evidence.
Id. at 59-61. The Court held that Ritchie’s interest in ensuring a fair trial could be
fully protected by submitting the files to the trial court for an in camera review. Id.
at 60. Moreover, the trial court’s duty to disclose material evidence in the files was
ongoing; if information became material as the trial progressed, the trial court had
an ongoing duty to disclose it to the defense. Id.
¶ 40 Both this court and our appellate court have adopted Ritchie’s framework for
balancing a defendant’s constitutional right to Brady evidence against the interests
in protecting confidential records. In People v. Bean, 137 Ill. 2d 65, 99 (1990), a
death penalty case, the trial court employed the same in camera review process set
forth in Ritchie. On direct appeal to this court, defendant argued that his sixth
amendment rights were violated because the trial court did not give his counsel full
access to all the mental health records of an important state witness. Id. at 89. The
records at issue were protected by the Mental Health and Developmental
Disabilities Confidentiality Act (Ill. Rev. Stat. 1979, ch. 91½, ¶ 801 et seq.), which
provided that such records were privileged, confidential, and not subject to
disclosure in any judicial proceeding, except for certain stated exceptions. Bean,
137 Ill. 2d at 92, 99-100.
- 12 -
¶ 41 Relying on Ritchie, this court held that the defendant’s constitutional rights
outweighed the confidentiality of the documents, but only to the extent that a trial
court determined the privileged information to be relevant and impeaching. Id. at
99-100. We thus held that the trial judge did not err in reviewing the records
in camera, holding a hearing at which both parties were allowed to argue their
respective positions, then disclosing all information he thought was relevant and
could be used to impeach the witness. Id.; cf. People v. Foggy, 121 Ill. 2d 337, 347
(1988) (holding the defendant was not entitled to an in camera review of
subpoenaed documents because the documents were statutorily protected by
absolute, unqualified privilege).
¶ 42 In a case involving similar circumstances to the instant case, People v.
Escareno, 2013 IL App (3d) 110152, ¶ 3. the defendant sought to obtain records
from a DCFS investigation pertaining to the current charges, as well as records in
a separate DCFS investigation involving allegations by the victim against another
individual. DCFS refused to comply with the subpoena on the ground that the
information was contained in an unfounded report and, thus, confidential under
section 7.14 of the Reporting Act. Id. The defendant argued that he was denied his
constitutional right to present a defense when the trial court quashed his subpoena
to DCFS without first conducting an in camera review of the subpoenaed records.
Id. ¶¶ 3, 16. Citing Ritchie and Bean, the appellate court concluded that “a
defendant has a limited right to examine otherwise statutorily privileged
information if the evidence is relevant and material, and if its relevance is not
outweighed by other factors.” Id. ¶ 16. Accordingly, the court remanded to the trial
court with directions to conduct an in camera review of the DCFS documents and
determine whether the documents contained information that, if disclosed to the
defense, probably would have changed the outcome of the trial. Id. ¶ 21. The court
held that, if so, defendant should be granted a new trial; if not, his conviction should
not be disturbed. Id.
¶ 43 The State concedes that Ritchie is instructive and that section 7.14 of the
Reporting Act falls within Ritchie’s holding. The State argues, however, that
Ritchie requires a party to make “an initial showing of materiality” prior to
obtaining an in camera review of confidential documents. In other words, the State
would require that a party seeking disclosure of confidential documents must make
a preliminary showing that the evidence contained in the documents probably
- 13 -
would have changed the result of his trial. See Ritchie, 480 U.S. at 57 (defining
“material” as “ ‘a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceedings would have been different’ ” (quoting
Bagley, 473 U.S. at 682)). The State further argues that defendant failed to make
the requisite initial showing of materiality in this case.
¶ 44 The appellate court below agreed with the State that defendant was not entitled
to an in camera review because he failed to establish the requested documents were
material. Even though neither the parties nor the court knew what the documents
contained, the appellate court held that, “given the nature of the evidence in this
case—primarily L.G.P.’s trial testimony and CAC statement directly implicating
defendant of the crime—it appears unlikely that disclosure of the report would have
resulted in a reasonable probability the jury would have found defendant not
guilty.” 2021 IL App (4th) 190667-U, ¶ 60. We disagree with the State’s reading
of Ritchie, as adopted by the appellate court.
¶ 45 The State bases its argument on a single sentence in a footnote in Ritchie. The
footnote relied on by the State, footnote 15, is inserted after the Court’s conclusion
that “Ritchie is entitled to have the CYS file reviewed by the trial court to determine
whether it contains information that probably would have changed the outcome of
his trial.” Ritchie, 480 U.S. at 58. Footnote 15 states:
“The Commonwealth also argues that Ritchie is not entitled to disclosure
because he did not make a particularized showing of what information he was
seeking or how it would be material. See Brief for Petitioner 18 (quoting United
States v. Agurs, 427 U. S. 97, 109-110 (1976) (‘The mere possibility that an
item of undisclosed information might have helped the defense . . . does not
establish ‘materiality’ in the constitutional sense’)). Ritchie, of course, may not
require the trial court to search through the CYS file without first establishing
a basis for his claim that it contains material evidence. See United States v.
Valenzuela-Bernal, 458 U. S. 858, 867 (1982) (‘He must at least make some
plausible showing of how their testimony would have been both material and
favorable to his defense’). Although the obligation to disclose exculpatory
material does not depend on the presence of a specific request, we note that the
degree of specificity of Ritchie’s request may have a bearing on the trial court’s
assessment on remand of the materiality of the nondisclosure. See United States
- 14 -
v. Bagley, 473 U. S. 667, 682-683 (1985) (opinion of BLACKMUN, J.).” Id. at
58 n.15.
¶ 46 The sentence in footnote 15 that the State relies on is the following: “Ritchie,
of course, may not require the trial court to search through the CYS file without
first establishing a basis for his claim that it contains material evidence.” Id. The
State argues that this single sentence in footnote 15 established a new rule, requiring
a party to make a showing of materiality before the trial court reviews the
documents in camera and before defense counsel has seen the documents. We
disagree. Language in an opinion must not be “ ‘ “ripped from its context to make
a rule far broader than the factual circumstances which called forth the
language.” ’ ” Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 30 (quoting
Rosewood Care Center, Inc. v. Caterpillar, Inc., 226 Ill. 2d 559, 572 (2007)).
Rather, Ritchie, like all other opinions, “ ‘must be read as applicable only to the
facts involved and is an authority only for what is actually decided.’ ” Id. (quoting
Spring Hill Cemetery of Danville v. Ryan, 20 Ill. 2d 608, 619 (1960)). Here, the
State isolates a single sentence in footnote 15 and reads it out of context with the
surrounding opinion and its holding. If the Court had, in fact, required Ritchie to
make a showing of materiality prior to an in camera review of confidential
documents, he would not have prevailed. Consequently, the sentence in footnote 15
upon which the State relies cannot mean what the State says it means.
¶ 47 The Supreme Court’s statement that the defendant in Ritchie “of course” had to
establish a “basis” for his claim that the confidential file contained material
evidence was simply a summation of existing law, i.e., that a party seeking a
subpoena must show, inter alia, that the documents are evidentiary and relevant
and that the application was made in good faith and not intended as a “fishing
expedition.” See Nixon, 418 U.S. at 699-700. The Supreme Court did not require
anything more. Indeed, it is clear that the showing for obtaining in camera review
of confidential documents need not be more specific than the one presented by the
defendant in Ritchie. The only showing the defendant made in that case was that
“the file might contain the names of favorable witnesses, as well as other,
unspecified exculpatory evidence.” Ritchie, 480 U.S. at 44. This showing was
sufficient, the Court held, to “entitle” Ritchie to an in camera review of the
documents by the trial court to determine the materiality of the evidence. Id. at 58,
- 15 -
61. Thus, the Court did not apply the rule that the State contends should be applied
in this case.
¶ 48 This case is on all fours with the facts in Ritchie, Bean, and Escareno, and the
same holding applies. The documents requested in defendant’s subpoena
duces tecum pertained to an unfounded DCFS report. An unfounded report is
confidential and generally protected from disclosure, with certain exceptions listed
in section 7.14, and is inadmissible in judicial proceedings other than proceedings
under the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 2018)). See
325 ILCS 5/7.14, 11 (West 2018). Defense counsel subpoenaed the documents in
question and represented to the trial court a good-faith belief that the documents
were relevant to showing interests or biases of the witnesses and might provide
impeachment evidence in the form of prior inconsistent statements. This showing
is at least as specific as the showing that the Supreme Court held was sufficient in
Ritchie. Because the documents in this case may have led to the discovery of other
admissible evidence, regardless of whether they were admissible on their own
terms, section 7.14 of the Reporting Act did not obviate the State’s obligation to
turn over the requested documents. See People v. Kladis, 2011 IL 110920, ¶ 26
(“pretrial discovery ‘presupposes a range of relevance and materiality which
includes not only what is admissible at the trial, but also that which leads to what
is admissible.’ ” (quoting Krupp v. Chicago Transit Authority, 8 Ill. 2d 37, 41
(1956))).
¶ 49 As in Ritchie and Escareno, the proper remedy is remand for the trial court to
perform an in camera review of the documents described in the subpoena to
determine whether they contain information that probably would have changed the
outcome of defendant’s trial. Ritchie, 480 U.S. at 57-60; Escareno, 2013 IL App
(3d) 110152, ¶¶ 18-21. If the trial court determines that the documents contain
information that probably would have changed the outcome of the trial if disclosed
to the defense, defendant “must be given a new trial.” Ritchie, 480 U.S. at 58; see
also Escareno, 2013 IL App (3d) 110152, ¶ 21. If the documents contain no such
information, or if the nondisclosure was harmless beyond a reasonable doubt, the
trial court will be free to reinstate the prior conviction. Ritchie, 480 U.S. at 58.
¶ 50 In the event that the trial court determines defendant is not entitled to a new
trial, we will address defendant’s contention that the evidence at his trial was
- 16 -
insufficient to convict him of the charged crime beyond a reasonable doubt.
¶ 51 II. Sufficiency of the Evidence
¶ 52 When considering a challenge to the sufficiency of the evidence, a reviewing
court must determine whether, viewing the evidence in the light most favorable to
the prosecution, a rational trier of fact could have found the required elements of
the crime beyond a reasonable doubt. People v. Belknap, 2014 IL 117094, ¶ 67. It
is not the function of this court to retry the defendant. People v. Tenney, 205 Ill. 2d
411, 428 (2002). It is the responsibility of the trier of fact to resolve conflicts in the
testimony, weigh the evidence, and draw reasonable inferences from the facts.
People v. Campbell, 146 Ill. 2d 363, 375 (1992). Accordingly, a reviewing court
will not substitute its judgment for that of the fact finder on questions involving the
weight of the evidence or the credibility of the witnesses. Id. The positive, credible
testimony of a single witness, even if contradicted by the defendant, is sufficient to
convict a defendant. People v. Gray, 2017 IL 120958, ¶ 36. On appeal from a
criminal conviction, we will not reverse the trial court’s judgment unless the
evidence is so unreasonable, improbable, or unsatisfactory that it justifies a
reasonable doubt of the defendant’s guilt. Id. ¶ 35.
¶ 53 To prove defendant guilty of predatory criminal sexual assault, the State was
obligated to prove that defendant was 17 years of age or older and committed “an
act of contact, however slight, between the sex organ or anus of one person and the
part of the body of another for the purpose of sexual gratification or arousal of the
victim or the accused” and that the victim was under 13 years of age. 720 ILCS
5/11-1.40(a)(1) (West 2018). There is no dispute that defendant was over 17 years
old and that the victim was under 13 years old, at the time of the incident in this
case.
¶ 54 L.G.P. testified at trial that she attended a sleepover at defendant’s house and
that she awoke during the night to find defendant’s penis in her hand and that her
hand was wet and sticky. If believed by the jury, L.G.P.’s testimony alone was
sufficient to prove that defendant committed “an act of contact *** between the sex
organ or anus of one person and the part of the body of another for the purpose of
sexual gratification.” Id. § 11-1.40(a). Moreover, additional evidence corroborated
L.G.P.’s account, reinforcing her credibility. The evidence showed that L.G.P.
- 17 -
promptly reported the contact and that her allegations remained consistent
throughout the time leading up to trial. L.G.P.’s mother, Mercedes, testified that
L.G.P. told her she never wanted to go to defendant’s house again and that she woke
up during the sleepover with defendant’s “finger” in her hand. Mercedes also
testified that on May 30, 2018, L.G.P. told her that defendant had put his penis, not
his finger, in her hand.
¶ 55 Dr. Buetow and Chad Turner, the DCFS investigator, both testified about their
one-on-one interviews with L.G.P., during which she told them that she awoke
during the sleepover with defendant’s penis in her hand. Finally, the jury watched
L.G.P.’s interview with Turner, in which she recounted that night’s events
consistently with her trial testimony.
¶ 56 In support of his argument that he was not proved guilty beyond a reasonable
doubt, defendant contends that L.G.P. either could not recall the details or changed
her account of the incident at various times. Defendant points to the following
inconsistencies in the testimony: L.G.P. could not describe the bedding, the pillows,
or who picked her up after the sleepover; she could not remember the lighting
conditions or whether the television was still on; on the stand, she testified that
defendant’s hands were on his phone during the offense, but during her CAC
interview, she said that he was lying with his hands under his head; L.G.P. testified
that defendant was wearing a T-shirt, but Mercedes testified that L.G.P. told her
defendant was not wearing a shirt; and Dr. Buetow testified that L.G.P. told her that
she slept in the bed and that N.S. and J.G.P. were sleeping on a pallet on the floor,
but in the recorded interview, L.G.P. stated that she slept on the pallet.
¶ 57 However, the jury was aware of these minor inconsistencies in the testimony,
and it nevertheless found L.G.P.’s account to be sufficiently credible to find
defendant guilty. The jury reasonably could have considered that L.G.P. either
forgot or was mistaken about some of the details because she was seven years old
at the time of the incident and testified at trial nearly two years later. It was the
function of the jury to assess the credibility of the witnesses and resolve
discrepancies in the testimony, and we cannot substitute our judgment for that of
the jury. People v. Siguenza-Brito, 235 Ill. 2d 213, 229 (2009). Viewing the
evidence in the light most favorable to the State, a rational trier of fact could have
found the required elements of the crime beyond a reasonable doubt. Thus, we find
- 18 -
the evidence presented at trial was sufficient to convict defendant of predatory
criminal sexual assault of a child.
¶ 58 CONCLUSION
¶ 59 For the foregoing reasons, the judgment of the appellate court is reversed. The
cause is remanded to the circuit court with directions to conduct an in camera
review of the aforementioned records.
¶ 60 Appellate court judgment reversed.
¶ 61 Cause remanded with directions.
¶ 62 JUSTICE MICHAEL J. BURKE, dissenting:
¶ 63 I agree with the majority’s conclusion that the evidence of guilt presented
against defendant was sufficient beyond a reasonable doubt to convict him of
predatory criminal sexual assault of a child. I disagree, however, with the majority’s
conclusion that application of the framework set forth in Pennsylvania v. Ritchie,
480 U.S. 39 (1987), requires that the cause be remanded for an in camera review
of the unfounded DCFS report. The majority erroneously creates an automatic right
to have a trial judge conduct in camera review of unfounded DCFC investigation
documents whenever a defendant simply alleges that the documents are material,
regardless of whether defendant can make “some plausible showing” that there is a
basis for the claim that the documents contain material evidence. This contrasts
with Ritchie, which noted as follows:
“[Defendant], of course, may not require the trial court to search through the
[Children and Youth Services (CYS)] file without first establishing a basis for
his claim that it contains material evidence. See United States v. Valenzuela-
Bernal, 458 U. S. 858, 867 (1982) (‘He must at least make some plausible
showing of how their testimony would have been both material and favorable
to his defense’).” Id. at 58 n.15.
- 19 -
Because the majority does not recognize this “plausible showing” standard and
because defendant has failed to satisfy it, I respectfully dissent.
¶ 64 Ritchie addressed a similar situation. There, the defendant served
Pennsylvania’s CYS agency with a subpoena for records concerning his daughter,
who had accused him of rape. Id. at 43. CYS refused to comply with the subpoena,
arguing that Pennsylvania law required that “all reports and other information
obtained in the course of a CYS investigation must be kept confidential.” Id. The
defendant argued that he was entitled to the information because the file might
contain the names of favorable witnesses, as well as other, unspecified exculpatory
evidence. Id. at 44. The trial court denied the request. The United States Supreme
Court explained on review that the government cannot withhold material evidence
simply because it is statutorily privileged if the statutory privilege is not absolute.
Id. at 57. In Ritchie, the privilege was not absolute, and the Court therefore rejected
the State’s argument that the statutory privilege would preclude an examination of
the agency’s records. Id. However, the Court denied defendant’s further request
that the records—though discoverable—be disclosed directly to him. Id. at 59-60.
Noting that due process does not grant a defendant “the unsupervised authority to
search through” the government’s files (id. at 59), the Court instead held that the
defendant’s rights and Pennsylvania’s “compelling interest in protecting its child
abuse-information” were properly balanced by an in camera review of the records
(id. at 60). But the Court also clarified that “[the defendant], of course, may not
require the trial court to search through the CYS file without first establishing a
basis for his claim that it contains material evidence.” Id. at 58 n.15 (citing United
States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (“He must at least make
some plausible showing of how their testimony would have been both material and
favorable to his defense.”)).
¶ 65 In other words, Ritchie established the following procedure: where a defendant
believes that the government is in possession of material information and the
government asserts that the information must be kept confidential pursuant to
statute, the defendant must establish a basis for his belief that the information is
material; if he does so, then the court conducts an in camera review and discloses
any material evidence. Defendant’s contrary argument, that under Ritchie, his
request for the DCFS report automatically triggered the trial court’s obligation to
conduct an in camera review of the report—without regard for whether defendant
- 20 -
made any showing that the report contained material evidence—rests on a
misreading of Ritchie and has been rejected by most federal and state courts to
consider the issue. See, e.g., People v. Stanaway, 521 N.W.2d 557, 574 (Mich.
1994); Zapata v. People, 2018 CO 82, ¶ 54; State v. Gregory, 147 P.3d 1201, 1219
(Wash. 2006) (en banc), overruled on other grounds, State v. W.R., 336 P.3d 1134(Wash. 2014) (en banc); State v. Peseti, 65 P.3d 119, 133 (Haw. 2003); State v.
Hummel, 483 N.W.2d 68, 72 (Minn. 1992); State v. Sanders, 92 Ohio St. 3d 245,
2001-Ohio-189, 750 N.E.2d 90, ¶ 37; Stripling v. State, 401 S.E.2d 500, 505 (Ga.
1991); State v. Gagne, 612 A.2d 899, 901 (N.H. 1992); United States v. Lee, 660
F. App’x 8, 14 (2d Cir. 2016); United States v. Williams, No. 94-1247, 1996 WL
219606, at *4 (E.D.N.Y Apr. 30, 1996); United States v. Abdallah, 911 F.3d 201,
217 (4th Cir. 2018); United States v. Trevino, 89 F.3d 187, 189-90 (4th Cir. 1996);
Smith v. Cromer, 159 F.3d 875, 882 (4th Cir. 1998); United States v. Stampe, 994
F.3d 767, 771 (6th Cir. 2021), overruled on other grounds, ___ U.S. ___,142 S. Ct.
1356 (2021)); United States v. Jumah, 599 F.3d 799, 809-10 (7th Cir. 2010);
Dietrich v. Smith, 701 F.3d 1192, 1196 (7th Cir. 2012).
¶ 66 I find this precedent persuasive and would therefore reject defendant’s
argument that Ritchie established an unqualified right to in camera review
whenever a defendant seeks information subject to a statutory requirement that it
be kept confidential. The Minnesota Supreme Court’s decision in Hummel is
illustrative. There, the question was whether a trial court erred in refusing to
conduct in camera review of confidential medical records when requested by a
defendant despite “no showing of relatedness to the case.” (Emphasis added.)
Hummel, 483 N.W.2d at 71. The court found Ritchie’s holding to be “absolutely
clear that some showing is required before in camera review is granted.” Id. at 72
(citing Ritchie, 480 U.S. at 58 n.15). Similarly, the Colorado Supreme Court
reasoned that “Ritchie does not hold that trial courts must always review privileged
reports in camera” but instead “expressly noted that a defendant ‘may not require
the trial court to search through the [privileged] file without first establishing a basis
for his claim that it contains material evidence.’ ” Zapata, 2018 CO 82, ¶ 54
(quoting Ritchie, 480 U.S. at 58 n.15). And the Hawaii Supreme Court explained
that there are cogent reasons for disallowing general pretrial discovery of privileged
information but allowing access to such information upon a proper showing by the
defendant that the information may change the outcome of the trial. Peseti, 65 P.3d
at 133.
- 21 -
¶ 67 Indeed, this court has already recognized that a preliminary showing of
materiality is relevant in determining whether a defendant may receive an
in camera review of otherwise privileged documents. In People v. Foggy, 121 Ill.
2d 337, 340 (1988), the defendant subpoenaed a rape victim’s confidential
counseling records. Citing an Illinois statute that established an absolute bar to the
release of counseling records, the trial court found that the defendant had no
constitutional right to the records and quashed the subpoena. Id. at 341-42. Before
this court, the defendant argued that the trial court should have conducted an
in camera review of the documents to determine whether they contained material
information. Id. at 342. This court found that due process did not require an
in camera review, in part because the counselor-patient statutory privilege was
“unqualified.” Id. at 347. Thus, Foggy was faced with an issue unresolved by
Ritchie: whether an absolute privilege must yield to a criminal defendant’s pretrial
discovery request for otherwise privileged information that may provide material
for use in cross-examining witnesses. But the fact that the subpoenaed materials
were absolutely privileged was not the only reason this court in Foggy held that the
trial court was not obligated to conduct an in camera review. We also observed that
“[i]t is important to note that in this case the defendant’s request for an in camera
inspection of the counseling records was merely general; he did not allege that
information may exist in the counseling files that would be subject to disclosure.”
Id. at 349. The defendant’s failure to give any indication that the victim’s
communications with the counselor would provide a source of impeachment,
combined with the “strong policy of confidentiality,” led the court to hold that
in camera review was not required. Id. Foggy thus recognized that the strength and
specificity of a defendant’s request for in camera review was relevant to whether
due process required such review.
¶ 68 There are several good reasons supporting the rationale of Foggy. First, as
previously noted, Ritchie—after balancing a defendant’s due process right to
material information against the government’s interest in prohibiting the
dissemination of statutorily privileged information—allowed for in camera review
of privileged documents only after a defendant establishes “a basis for his claim
that it contains material evidence.” Ritchie, 480 U.S. at 58 n.15.
¶ 69 Second, “in camera review is frequently time-consuming and may tax limited
judicial resources; therefore, it is not a remedy to be unstintedly granted.” United
- 22 -
States v. Garcia-Martinez, 730 F. App’x 665, 673 (10th Cir. 2018) (citing 6 Wayne
R. LaFave et al., Criminal Procedure § 24.3(b), at 447 (4th ed. 2015) (“in camera
inspection can impose an intolerable burden on already taxed judicial resources”
(internal quotation marks omitted))); Stripling, 401 S.E.2d at 505 (“an in camera
inspection can become a ponderous, time consuming task if utilized in every case
merely on demand” (internal quotation marks omitted)).
¶ 70 If automatic in camera review is to be the rule now going forward after the
majority’s decision, the strain on the judicial system’s limited resources will be
significant, as the rule would apply not only to the DCFS confidentiality
requirement asserted here but also to any similar statutory privilege, such as
privileged school records (see People v. K.S., 387 Ill. App. 3d 570, 573 (2008)),
juvenile records (see People v. Clark, 55 Ill. App. 3d 379, 387 (1977)), or Illinois
Department of Corrections records (see People v. Deleon, 227 Ill. 2d 322, 328
(2008)). In each instance, the trial court would be obligated to conduct a potentially
time consuming and burdensome in camera review. And, because the court’s duty
to disclose material evidence “is ongoing *** as the proceedings progress” (Ritchie,
480 U.S. at 60), trial courts will be forced to constantly revisit or reassess the
privileged evidence as new arguments or theories arise at trial. By limiting
in camera review to those instances where a defendant can make an initial showing
that the privileged records might contain material evidence, the Ritchie rule directs
a court’s limited resources to potentially meritorious requests.
¶ 71 Third, a rule of automatic in camera review ignores that the trial court will often
lack sufficient information—e.g., whether the complainant will testify at trial or
what the substance of that testimony would be—at the pretrial stage to adequately
determine the defendant’s need for the privileged information (see Peseti, 65 P.3d
at 133) and would require the court to assume the role of an advocate (see United
States v. Zolin, 491 U.S. 554, 571 (1989) (noting that “[a] blanket rule allowing
in camera review” places a burden “upon the district courts *** without open
adversarial guidance by the parties” and turns courts into “unwitting (and perhaps
unwilling) agents” of the party seeking the review); see also Dennis v. United
States, 384 U.S. 855, 875 (1966) (“In our adversary system, it is enough for judges
to judge. The determination of what may be useful to the defense can properly and
effectively be made only by an advocate.”). Tasking judges with this advocacy
responsibility is contrary to their proper role as neutral arbiters. See Commonwealth
- 23 -
v. Dwyer, 859 N.E.2d 400, 418 (Mass. 2006). By requiring a defendant to make an
initial showing of some basis or plausible showing of materiality, the Ritchie rule
avoids this dilemma and confirms the trial court’s proper role as arbiter rather than
advocate.
¶ 72 Fourth, automatic in camera review fails to give proper weight to the interest
in maintaining the confidentiality of records that the legislature has determined
should be kept confidential. To be sure, this interest in confidentiality must give
way to a defendant’s due process rights, but a defendant’s due process rights are
implicated only if the privileged matter contains material evidence. Without
requiring a defendant to articulate some basis to believe that a privileged record
might be material, a trial court’s in camera review would be instigated on mere
conjecture and would risk the unnecessary disclosure of the privileged material in
question (see Peseti, 65 P.3d at 133), thereby frustrating legitimate interests in
confidentiality.
¶ 73 Defendant’s arguments in support of his contention that Ritchie created an
absolute right to in camera review of privileged documents are not persuasive.
Defendant contends that the Supreme Court’s statement—that “Ritchie, of course,
may not require the trial court to search through the CYS file without first
establishing a basis for his claim that it contains material evidence”—was merely
an instruction applicable on remand in that case, and intended as a guide to the trial
court’s assessment of materiality while performing the in camera review on
remand, not setting that specificity as a bar to earning in camera review. But, as the
cases I have cited above illustrate, the vast majority of courts to consider the
question have held that Ritchie’s clear statement is applicable outside of the remand
context. For good reason, too, because any attempt to characterize Ritchie’s rule as
merely an instruction to guide the court on remand directly contradicts the Court’s
express statement, of course, that defendant must at least make some plausible
showing to establish a basis for the claim before the trial court is tasked with
searching through the files.
¶ 74 Both the defendant and the majority rely on People v. Bean, 137 Ill. 2d 65(1990), to support their desired outcome. But that reliance is misplaced. In Bean, a
defendant charged with murder sought the mental health records of a testifying
witness. Id. at 89-90. After reviewing the records in camera, the trial court
- 24 -
disclosed some, but not all, of their contents, and the defendant later argued before
this court that the trial court had erred in declining to disclose all the information.
Id. at 91, 93. Relying on Ritchie, Bean rejected the defendant’s argument and held
that the trial court’s decision to conduct an in camera review and disclose only
those documents it deemed material did not deprive defendant of his due process
rights. Id. at 99-101. But Bean does not answer the question presented here, because
it was not asked to determine whether the defendant was required to make an
antecedent, “plausible showing” of materiality before the trial court conducted its
in camera review or whether, absent a showing, the trial court could properly have
quashed the subpoena seeking those documents without conducting such a review.
While Bean appeared to approve of the trial court’s use of in camera review in that
case, it was not asked to and did not address the showing required to trigger an
in camera review.
¶ 75 The majority’s reliance on People v. Escareno, 2013 IL App (3d) 110152, ¶ 18,
is unavailing as well. In that case, the appellate court held that the trial court’s
failure to conduct an in camera review was error, believing that Ritchie created a
legal obligation for the trial court to conduct an in camera review whenever
privileged materials are subpoenaed. Id. ¶¶ 18-21. But, for the reasons explained,
Escareno’s understanding of Ritchie is incorrect and should not be adopted, as
Ritchie requires that a defendant desiring in camera review of confidential records
make an initial, plausible showing of materiality and does not condone automatic
review.
¶ 76 I turn to the precise standard to be used in determining whether in camera
review is warranted and whether that standard was met in this case. At the outset, I
recognize that “trial courts cannot realistically expect defendants to articulate the
precise nature of the confidential records without having prior access to them.” See
Gagne, 612 A.2d at 901; see also Stampe, 994 F.3d at 771 (“[B]efore disclosure a
defendant likely will not know the content of an undisclosed item.”). Although
Ritchie did not give trial courts “detailed guidance” on this issue (Hummel, 483
N.W.2d at 72), most courts, as mentioned above, have settled on the “ ‘plausible
showing’ ” standard (Ritchie, 480 U.S. at 58 n.15 (quoting Valenzuela-Bernal, 458
U.S. at 867, for the proposition that a defendant “ ‘must at least make some
plausible showing of how their testimony would have been both material and
favorable to his defense’ ”)). Under this standard, a defendant must “make a
- 25 -
plausible showing that the privileged record at issue contained material evidence.”
Dietrich, 701 F.3d at 1196; see also Abdallah, 911 F.3d at 217 (“ ‘a defendant need
only make “some plausible showing” that exculpatory material exists’ ” (quoting
United States v. King, 628 F.3d 693, 703 (4th Cir. 2011))). The plausible showing
standard does not “require ‘a particularized showing of what information’ ” is
sought (Stampe, 994 F.3d at 771 (quoting Ritchie, 480 U.S. at 58 n.15)) but requires
a defendant to nevertheless “ ‘identify the requested confidential material with
some degree of specificity’ ” (Abdallah, 911 F.3d at 218 (quoting King, 628 F.3d
at 703)).
¶ 77 Applying that standard here, it is clear defendant failed to make a plausible
showing that the unfounded DCFS report contained material information. The trial
court therefore did not abuse its discretion in quashing the subpoena without
conducting an in camera review. See People v. Williams, 209 Ill. 2d 227, 234
(2004); People v. Arze, 2016 IL App (1st) 131959, ¶ 104 (trial court’s decision to
quash subpoena without conducting in camera review is reviewed for an abuse of
discretion). Defendant’s subpoena demanded all records of investigations including
but not limited to written reports and video or audio recordings created since
September 1, 2018, related to Mercedes (L.G.P.’s mother) or Angel Walker
(Mercedes’s friend), but it made no allegation that the records pertained to L.G.P.
and made no effort to explain why the documents might otherwise contain
information material to the criminal proceedings against defendant. Then, at the
hearing on DCFS’s subsequent motion to quash, defense counsel argued that the
report could show “interest and bias.” Counsel attempted to explain as follows:
“[T]he mother of the accuser and her girlfriend, both of which defense, based
on our research believes—well, it goes to interest and bias of the—of the mother
of the children who allegedly made these or who made these allegations, and
her girlfriend who we believe are playing a part in—in this, and that goes to not
only interest and bias, but if there’s contradictory statements, that would
certainly be Brady material as well.”
¶ 78 Clearly, the defense speculated that the DCFS report might contain information
showing the “interest and bias” of Mercedes and her friend, but it did not explain
even remotely how that information might be material to the criminal proceedings
against defendant (such as, for example, by explaining why they might be biased
- 26 -
against him or what they were “playing a part in”). Similarly, defendant suggested
that the report might contain “contradictory statements” but provided no
explanation why he believed this was so or what the statements might contradict.
The trial court was thus presented with no nonspeculative reason to believe that the
DCFS report might plausibly contain material information.
¶ 79 The majority claims that “[t]his case is on all fours with the facts in Ritchie,
Bean, and Escareno.” Supra ¶ 48. But that is not an accurate assessment. In Ritchie,
the defendant sought records concerning his daughter’s abuse, the same daughter
that was the victim in the current charges before the court, as well as an earlier
report by an unidentified source that defendant’s “children were being abused.”
Ritchie, 480 U.S. at 43. Unlike Ritchie, defendant in the present case never
connected the unfounded investigation of Mercedes and Angel to the current
charges, the alleged victim of those charges, or even his child.
¶ 80 Escareno is distinguishable for the same reason. In Escareno, the defendant
sought DCFS records related to his own abuse of the victim, as well as a report of
that same victim’s allegations against another individual. Escareno, 2013 IL App
(3d) 110152, ¶ 18. Moreover, the appellate court in Escareno mistakenly believed
that Ritchie created an obligation to conduct in camera review whenever privileged
materials are subpoenaed. See id. ¶¶ 18-21. Finally, Bean, 137 Ill. 2d 65, is also
distinguishable. There, this court did not answer the question presented here, as it
was not asked, and did not address whether defendant was required to make a
plausible showing prior to the trial court allowing in camera review.
¶ 81 I believe the trial court was well within its discretion to conclude that the DCFS
report was immaterial to defendant’s case. The DCFS investigation was not aimed
at defendant but at defendant’s victim’s mother and the mother’s friend. Further,
the report was classified as “unfounded,” meaning that the investigation uncovered
“no credible evidence” of abuse. See 325 ILCS 5/8.1 (West 2018). And, as the
appellate court noted, the victim of the alleged abuse was never identified. See 2021
IL App (4th) 190667-U, ¶ 10. I would therefore find that the trial court could
reasonably conclude that an investigation into the allegations of a victim unrelated
to defendant’s case would not plausibly contain evidence material to defendant’s
case. For all the reasons noted, the unfounded report appears to be wholly
immaterial to defendant’s case, and absent a plausible showing to the contrary, the
- 27 -
trial court appropriately exercised its discretion to quash the subpoena without
conducting an in camera review.
¶ 82 Accordingly, I dissent.
¶ 83 CHIEF JUSTICE THEIS joins in this dissent.
- 28 -