People v. Salgado clarifies defendant's right to confront witnesses

The case of People v. Salgado 2012 IL App (2d) 100945 (March 15^th, 2012) has shed some light on the rights of defendants to be present when witnesses are testifying. The second district appellate court held that it was in error to allow the defendants daughter to testify in the judge’s chambers while the defendant remained in the courtroom. While the defendant agreed to let his daughter testify in this fashion, the court did not show that the defendant properly understood his confrontation rights and voluntarily waived that right. 

In Salgado, the defendant was charged with 2 counts of Class 4 felony domestic battery and at the time that his daughter was set to testify, the state asked to have the daughter testify in the judge’s chamber outside the presence of the defendant. After a moment with defendant, defense counsel agreed to allow the daughter to testify outside the presence of the defendant. Defendant was convicted of both counts and sentenced to 18 months imprisonment.

The appellate court only addressed one claim of error on appeal, the argument that defendant was denied his confrontation right. The appellate court cited the previous Illinois Supreme Court case of Peoplev. Lofton, 194 Ill. 2d 40 (2000),which held that it was a violation of the confrontation clause when a defendant could not see the alleged victim testify in his sexual assault trial, due to physical barriers being erected in the courtroom. Because the right to confrontation includes the ability to see and hear witnesses testify, any “innovation” that prevents the defendant from hearing and seeing the testimony would impede their ability to help in cross-examination and violates the confrontation clause.

While a violation of confrontation rights does not mean an automatic reversal, the Second District found that defendant was completely deprived of these rights because he was unable to ever hear the daughter’s testimony, and thus the case should be reversed and remanded. Additionally, while state argued that defendant waived his right, the court disagreed, writing that “The waiver plainly was not proper as nothing in the record shows that defendant understood that he had a right to be present.” Salgado at 5.

Under People v. Stroud, 208 Ill. 2d 398, 409 (2004), which is cited by the Salgado opinion, “a defendant’s appearance at a guilty plea proceeding via closed-circuit television is constitutionally permissible only if the defendant waives the right to physical presence on the record after being advised of his right to be present.” (Emphasis added.) Stroud, 208 Ill. 2d at 409. Because there was nothing on the record showing that defendant understood his confrontation right, let alone voluntarily and knowingly waived it, it was improper for the court to proceed.

The court suggests that it could be allowable for the daughter to testify via closed circuit camera from inside the judge’s chambers or another area, as this would allow defendant to see and hear her testimony, even without wavier, but the court’s solution in the instant case was unacceptable because it deprived the defendant of any ability to see or hear witnesses testimony without a knowing waiver.