People v. Ousley, 9/24/09 - A trial court must grant a State motion to allow “use immunity” that compels a co-defendant to testify against defendant pursuant to 725 ILCS 5/106-2.5(b).
In this case, the State’s motion stated that if the co-defendant testified inconsistently with his videotaped statement, the State planned to introduce that videotaped statement as substantive evidence against the defendant pursuant to 725 ILCS 5/1115-10.1. The defendant objected based on procedural and constitutional arguments. The trial court refused to grant immunity and the Appellate Court affirmed. The Illinois Supreme Court overturned the lower courts and granted the State’s motion for “use immunity.”
The immunity statute directs that the trial court “shall” order a grant of immunity if the State files such a request. In an attempt to decide what the word “shall” means, the Illinois Supreme Court engages in a confusing discussion about the “mandatory-directory dichotomy” versus the “mandatory-permissive dichotomy.” In the end, the Illinois Supreme Court concludes that “shall” is mandatory in this case so that the trial court must approve the request.
The Illinois Supreme Court rejected several procedural arguments by the defendant. The State’s motion complied with the statute. The immunity statute does not require the State to make an offer of proof. Under the immunity statute, co-defendants can be considered witnesses.
The Illinois Supreme Court did not address any constitutional issues. “To the extent that constitutional issues concerning [the co-defendant’s] testimony remain following the grant of use immunity, the proper time to address those concerns is when those issues actually arise. Accordingly, we agree with the State that the trial court erred in denying the State’s motion to grant use immunity based upon any potential Bruton and Crawford issues.”
