¶1specially concurring:
¶2In arguing that defendant’s confrontation-clause rights were violated, he places great weight upon the Fifth District’s 22-year-old decision in Yarbrough. The majority distinguishes Yarbrough, but I disagree that we should do so. Instead, because Yarbrough was not correctly decided and has since been repudiated (at least implicitly) by several Illinois cases, we should now explicitly repudiate it. Thus, I specially concur although I agree with everything else the majority opinion holds.
¶3Yarbrough stands for the proposition that a witness’s prior inconsistent statements would not be admissible under section 115— 10.1 of the Code if, when that witness testifies at trial, he is not “subject to meaningful cross-examination” concerning those prior statements because the witness claims that “he cannot remember making the out-of-court statement or the substance of that statement.” Yarbrough, 166 Ill. App. 3d at 831, 520 N.E.2d at 1120. The Yarbrough court added, “Obviously, [the] defendant cannot cross-examine a witness with respect to the truth or falsity of an out-of-court statement of which the witness has no memory.” Yarbrough, 166 Ill. App. 3d at 831, 520 N.E.2d at 1120.
¶4To reach this decision, the Yarbrough court relied upon Douglas v. Alabama, 380 U.S. 415, 13 L. Ed. 2d 934, 85 S. Ct. 1074 (1965), in which a witness invoked his privilege against self-incrimination and refused to answer any questions. Yarbrough, 166 Ill. App. 3d at 831, 520 N.E.2d at 1120. However, Douglas was the wrong case to find United States Supreme Court authority regarding what it means for a witness “to appear for cross-examination” within the meaning of the confrontation clause.
¶5The two United States Supreme Court cases on point, both of which were decided prior to Yarbrough, are Delaware v. Fensterer, 474 U.S. 15, 88 L. Ed. 2d 15, 106 S. Ct. 292 (1985), and United States v. Owens, 484 U.S. 554, 98 L. Ed. 2d 951, 108 S. Ct. 838 (1988). Each of these cases dealt with witnesses who, for different reasons, had significant memory lapses regarding the subject of their testimony when they testified as key witnesses against the defendants in those criminal cases. In Fensterer, the Supreme Court rejected the defendant’s confrontation-clause argument and wrote that “[generally speaking, the [c]onfrontation [c]lause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Emphasis in original.) Fensterer, 474 U.S. at 20, 88 L. Ed. 2d at 19, 106 S. Ct. at 294. In Owens, the Supreme Court reaffirmed its holding in Fensterer and wrote that “[o]rdinarily a witness is regarded as ‘subject to cross-examination’ when he is placed on the stand, under oath, and responds willingly to questions.” Owens, 484 U.S. at 561, 98 L. Ed. 2d at 959, 108 S. Ct. at 844.
¶6In two cases dealing with section 115 — 10.1 of the Code, the Supreme Court of Illinois has made clear that Fensterer and Owens govern the question of whether a witness “has appeared for cross-examination” within the meaning of the confrontation clause. Those cases are Flores, 128 Ill. 2d at 88, 538 N.E.2d at 489, cited by the majority, in which the supreme court wrote that “a gap in the witnesses] recollection concerning the content of [the] prior statement does not necessarily preclude an opportunity for effective cross-examination,” and People v. Sutton, 233 Ill. 2d 89, 121, 908 N.E.2d 50, 70 (2009), in which the Illinois Supreme Court held that “an opportunity for effective cross-examination is not denied when a witness’s past belief is introduced, and he is unable [or unwilling] to recollect the reason for that past belief.”
¶7Moreover, as stated earlier, many decisions of the Illinois Appellate Court have repudiated the holding and analysis of Yarbrough either sub silentio or more explicitly. One of the most recent to do so was Hampton, cited by the majority, in which the First District rejected the defendant’s reliance upon both Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), and Yarbrough in his argument that his confrontation-clause rights were violated when a State witness’s out-of-court statement was admitted under section 115 — 10.1 of the Code, and the witness claimed not to be able to remember important aspects of what he said in his prior statement. The First District in Hampton wrote that “decisions issued by the United States Supreme Court and the Illinois Supreme Court after Yarbrough was published render its authority questionable.” Hampton, 387 Ill. App. 3d at 213, 899 N.E.2d at 539. (For a compendium of Illinois cases, as well as cases from other jurisdictions, rejecting the confrontation-clause analysis in Yarbrough and explaining in greater detail the application of Fensterer and Owens, see the recent decision of this court in People v. Bryant, 391 Ill. App. 3d 1072, 909 N.E.2d 391 (2009).)
¶8Contrary to my distinguished colleagues in the First District, as well as my distinguished fellow panelists in this case, I believe the time is long past to stop (1) referring to Yarbrough as “distinguishable” and (2) noting that Yarbrough's authority is “questionable.” Instead, we should say what we mean: Yarbrough was wrongly decided and this court (and other courts) should not follow it. To say that its authority is questionable or to attempt to distinguish it merely empowers defendants, like the one in this case, to continue to cite Yarbrough in support of erroneous arguments.