Domestic-BatteryOne of the most common questions I get asked by people who are charged with a Domestic Battery is whether they can be guilty of a Domestic Battery if they did not hit anyone.  The short answer to that question is yes.  But let’s talk a little about what a Domestic Battery is and why it is very important that you hire a good Illinois Domestic Battery lawyer who knows what they are doing.

First of all, most Domestic Batteries in Illinois are a misdemeanor.  The maximum punishment for a misdemeanor Domestic Battery is one year in jail and a fine up to $2,500.  But unlike most misdemeanors, if you are found guilty of a Domestic Battery in Illinois, you cannot receive Court Supervision.  Court Supervision is a type of sentence, that if successfully completed, does not result in a conviction on your criminal record.  The lowest possible sentence that can be imposed on a Domestic Battery in Illinois is Conditional Discharge.  A Conditional Discharge for a Domestic Battery cannot be expunged from your criminal record.  This means that if you are found guilty of a Domestic Battery you will never be able to remove the conviction from your criminal record.  And that’s why even though a Domestic Battery is usually a misdemeanor it is more serious than most other misdemeanors.  Since it can never be removed from your record, the consequences of a conviction can last a lifetime.

Next let’s talk about what Illinois law considers a Domestic Battery to be.  In order for a Battery to be considered a Domestic Battery as opposed to a regular Battery, the victim has to be either a family or household member. What does that mean?  This means that the victim has to either be a spouse or former spouse, a child or stepchild, or someone related to you by blood or by a prior marriage.  A family or household member can be someone who lives with you, someone that you are alleged to have had a child with or are related to each other through a child.  A household or family member can also be someone that you are currently having, or have previously had, a dating relationship with.  So as you can see, a family or household member is rather broadly defined under Illinois Law.

DUIThe question posted in the title to this article is one that I am frequently asked by my clients. There’s no easy answer to this question. When asked this question, the best I can do is explain the consequences of taking a breathalyzer test and the consequences of refusing to take a breathalyzer test.

First, let’s talk about what a breathalyzer test is. Basically, a breathalyzer test refers to the test that is used by the police to measure the amount of alcohol in the breath of the person that is taking the test.  This test is almost always administered at the police station.  If the test is administered properly and the machine is functioning properly, the results from that test can be used in court to prove that you were driving a vehicle while under the influence of alcohol.  Before you are asked to take a breathalyzer test the police officer has to have reasonable suspicion to believe that you were driving a vehicle under the influence of alcohol. Typically, what an officer will do first is to ask you to perform field sobriety tests to determine if you are under the influence of alcohol.  The field sobriety test is really three standardized tests performed on the side of the road that can tell a police officer if you are under the influence of alcohol. The three tests are the horizontal gaze nystagmus, the walk-and-turn and the one-leg stand.  Police officers receive specialized training on how to perform these tests and on how to properly score the results. If a police officer determines that you failed these tests, the officer may ask you to take a preliminary breath test (PBT). The PBT is a handheld device that the officer carries in their police vehicle that is not accurate enough to be allowed by the courts to be used to prove that you were driving under the influence of alcohol. But it can be used as evidence to help form a basis for reasonable suspicion for the officer to place you under arrest and to take you down to the police station so that you can be asked to take a breathalyzer test.  In other words, the PBT, along with the police officer’s observations and the results of the field sobriety test can be used to by the prosecutor to provide the court with a basis for the reasonable suspicion needed to place you under arrest and to take you down to the police station to request that you take a Breathalyzer test.  Unlike a breathalyzer test Illinois Law does not impose any penalties on a refusal to submit to a PBT.

If you are taken down to the police station the police officer will ask you to take a breathalyzer test. At that point you have a decision to make. You can either agree to take it or refuse to take the test. If you agree to take the test you will be informed by the police officer that if the results of the breathalyzer test indicate that your blood alcohol level is .08 or above your license will be suspended for 6 months if you are a first-time DUI offender. If you are not a first-time offender you will be advised that your driving privileges will be suspended for at least 3 years. You were involved in an accident that caused personal injury to another person, your license will be suspended for 12 months.

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social-imageKim Foxx was sworn in as the new Cook County State’s Attorney last week. Yesterday, she made her first major announcement.  She announced that her office will not be charging Retail Theft cases as felonies unless the amount that is involved is more than $1,000 or if the defendant does not have anything less than 10 prior Felony Retail Theft convictions.   This announcement represents a dramatic shift in policy at the Cook County State’s Attorney’s office.  Under current state law, you can be charged with a Class 4 Felony Retail Theft if the amount of the goods involved is more than $300 or if you have one prior felony retail theft conviction.  If you have one prior felony conviction you can be charged with a felony even if the amount is under $300.  If the amount is over $500, you can be charged with a class 3 felony.  Foxx’s announcement drastically raises the bar for what constitutes a Felony Retail Theft in Cook County.  Anita Alvarez, Foxx’s predecessor, had been trying to get the State Legislature to raise the bar for charging a felony up to $1,000 for many years now.  However, the state legislature has resisted.  As a result, the statewide threshold for charging someone with a felony retail theft, as opposed to a misdemeanor, remains at $300.  Compared to the other states around Illinois, the Illinois threshold is very low.  In Wisconsin the threshold is $500.  In Indiana, the threshold is $750.

Foxx’s announcement follows news from last week that Cook County is actively looking at ways of limiting the population at Cook County Jail. There is an understanding that the cost of housing inmates at the Cook County Jail is putting significant stress upon the limited budget resources of Cook County.  Last year, approximately 76 defendants who had been charged with Felony Retail Theft, spent more time in jail than what they were eventually sentenced to.  The total amount of the excess days served was 4,159.  The extra cost to the Cook County taxpayers was about $675,000.  Almost 80% of all Felony Retail Theft cases charged in Illinois between 2010 and 2012 were for less than $1,000.  As of today, about 101 people are housed at Cook County Jail on Felony Retail Theft charges.  The majority of the people that are locked up in Cook County Jail are there because they simply lack the financial resources to post bond.  As a result, Cook County taxpayers are footing the bill for their incarceration in the jail.

It remains to be seen what the impact of this announcement will be on retail theft cases. Looking at the reader comments in the local papers today they clearly indicate that this is a controversial decision.  What’s disturbing is that some of the comments are clearly racist in nature.  Some people will wonder whether the announcement will discourage storekeepers from calling the police if they know that the person they caught stealing from their store will not be charged with a felony. Others are going to argue that this announcement will just encourage people to steal because they know that they will not be facing felonies in Cook County. While prosecutors have always had the discretion to decide when and what to charge someone with, some people will argue that this is more than just an exercise of discretion.  It can be argued that the prosecutor is doing an end run around the will of the State Legislature.  The same prosecutor’s office that has been unsuccessful in lobbying the legislature to change the law, changes it on its own by exercising its discretion without legislative approval.  I would not be surprised to see someone charged with a Felony Retail Theft outside of Cook County argue an Equal Protection violation because the law is not being applied uniformly throughout the State of Illinois.

ConfessionOne of the most common questions I get asked when I get a phone call from somebody who has recently been arrested is “can my case be dismissed if the police did not read me my rights when I was arrested?” The answer to that question requires an understanding of the Fifth Amendment to the United States Constitution.  Everyone has heard of the Fifth Amendment, especially because of television crime shows, but let’s take a closer look at why the Fifth Amendment is important, what it is and what it does.

The Fifth Amendment creates a number of rights that apply to people facing criminal and civil legal proceedings.  First, it guarantees a citizen the right to a grand jury.  Second, it forbids “double jeopardy.”  Third, it requires that “due process of law” be part of any Court proceeding that denies a citizen “life, liberty or property.”  Fourth, it requires that the government compensate a citizen when it takes their private property for public use.  Fifth, if protects citizens from “self-incrimination.”  The Fifth Amendment right, the right against self-incrimination, is the one that is commonly associated with the “Miranda Rights.”  Self incrimination is basically when you make a statement that exposes yourself to legal or criminal responsibility.  Think of it as making a statement that ends up being a confession.  It’s when you are admitting to a crime, or making a confession. The Fifth Amendment protects citizens from being forced or coerced to testify against themselves.  Self-incrimination is prohibited by the Fifth Amendment to the United States Constitution.  So when you hear that someone has “taken the Fifth,” this means that they are refusing to testify in court or talk to the police.  This right is one of the basic principles of American Constitutional Law. It’s the absolute right to remain silent when you are being questioned by the police.  But just like any other constitutional right, this right is not absolute. There are limitations.

The seminole case that deals with the Fifth Amendment is the U.S. Supreme Court case of Miranda v. Arizona. Arguably the most well-known, or most mentioned, criminal case.  Let’s talk a little about this Supreme Court case so we can get a better understanding of what this case did and how it applies to today.  Miranda v. Arizona was actually four different cases involving custodial interrogations that were consolidated into one case.  The first case involved Miranda and that’s why it became known as the Miranda case.  But it actually involved four different cases involving criminal prosecutions and custodial interrogations.  In all cases, the defendants were arrested by the police, taken down to the police station, and interrogated for several hours.  All of the defendants made confessions to the police that prosecutors tried to use against them in court.  Prior to this case, the right against self-incrimination was thought of as applying only to proceedings in court.  But in this case, the Supreme Court extended and applied the 5th Amendment to proceedings that happened before the case went to court.  The court applied the right against self-incrimination in the 5th Amendment to all criminal proceedings that begin once a criminal defendant is deprived of their freedom of action.  And here is where we find the main limitation in Miranda.  The rights afforded in Miranda apply to custodial interrogations.  You are in custody if you are deprived of your freedom of action in any significant way.  It doesn’t matter if the interrogation occurs in the jail, at the police station, at the scene of a crime on a busy street, or in the middle of nowhere.  If you are not free to leave, then you are considered to be in custody and that’s when the Miranda rights have to be given.  Once it is established that you were in custody and the police start questioning you, in order for the prosecutor to be able to use the statements that you make to them in court, the police have to read you your Miranda Rights.  Those rights have to warn you that you have the right to remain silent.  If you say anything what you say can be used against you in a court of law.  You have the right to consult with a lawyer and have that lawyer present during any questioning.  If you cannot afford a lawyer, one will be appointed for you if you so desire.  If you choose to talk to the police you have the right to stop the interview at any time.  Very rarely have I seen TV shows mention this last warning.  And this is very important because if you are ever questioned, you have the right to demand that they provide a lawyer for you free of charge before answering any questions. Once you assert that right, the police must stop all questioning until and unless they provide a lawyer for you. You have the right to demand a lawyer at any time during the interrogation.  From my experience, I don’t know if I have ever seen the police actually provide a lawyer at this point once it is requested by the defendants.

Inspector. Please note that the graphics are my artwork.Thanks. The Law with respect to family related, domestic violence issues. Book of law with a gavel and a Restraining Order.

In 2010 the Kane County State’s Attorney’s office, in collaboration with Domestic Violence victims rights groups established the first Domestic Violence Diversion Program in Illinois. The main goal of this Diversion Program is to take first-time domestic violence offenders out of the criminal justice system and place them into a program that is designed to prevent them from becoming repeat offenders. Instead of putting them through the criminal justice system and punishing them, this program seeks to treat the causes behind the behavior. Treatment rather than punishment. If an offender successfully completes this program, the case will not be placed on their permanent criminal record. This is very important. While the vast majority of domestic battery cases are misdemeanors that carry a maximum punishment of one year in jail, a guilty plea, or a finding of guilt for a domestic battery, can never be removed from your permanent criminal record.  You cannot receive Court supervision for a Domestic Battery. The only possible sentence for a Domestic Battery is conditional discharge or a misdemeanor conviction. You are not allowed to expunge a Domestic Battery. The consequences of not being able to remove a Domestic Battery from your criminal record should be pretty obvious. If you ever apply for a job, a criminal background search will reveal this case on your record. If you ever apply for an apartment and your landlord performs a background search, they will find this criminal case in your background. If you apply for a loan, a lender may find this case in your background.

Offenders are not automatically eligible for the Domestic Violence Diversion Program. You are ineligible for this program if you have ever had any prior conviction or any type of probation for a Domestic Violence-related offense. You will not be eligible if you are an active gang member or–if your case is eligible to be upgraded to a felony. They will check with the victim and the arresting police officer and if they object to you being admitted into this program, you will not be eligible. You will not be eligible if you are unwilling to admit your guilt. If you threatened or intended to cause physical harm to the victim, you will not be eligible for this program. If the victim required medical treatment, you will not be eligible. Finally, you will not be eligible for this program if it was determined that you used or possessed a deadly weapon during the course of this Domestic Battery or if you have previously participated in this, or a similar, program. This program is strictly for first time offenders.

Once the State Attorney’s Office determined that you are eligible to be placed into this program, you will be instructed to contact the State’s Attorney’s Office so that you can arrange to be interviewed. You will be charged a $25 application fee. If they accept you into this program, you will appear at the next court date and you will plead guilty. Whether or not you are accepted into this program is left to the sole discretion of the State’s Attorney’s Office and you cannot appeal their denial of your acceptance into this program.

410 ProbationIllinois law has made a special type of Probation available for first-time felony drug offenders to avoid a felony conviction on their record. This type of Probation is commonly known as Section 410 or Section 1410 Probation. In order to be eligible for this type of Probation, you cannot have previously been convicted or placed on Probation or Court Supervision for any offense related to Cannabis or Illegal Drugs. This includes Prescription Drugs.  If you are able to get this type of Probation, here’s how it works:

At the time of sentencing, you plead guilty to the charges. The court accepts your plea but does not enter judgment. The court will place you on a period of Probation that will last 24 months. The only time you should have to go back to court before your Probation ends is if a Petition to Violate your Probation is filed. While you are on Probation the court will require that you do not violate any criminal laws in any state. You will not be allowed to possess a firearm or any other dangerous weapon. The court will order that you submit to random and unscheduled drug testing.  You will be required to pay the cost of the drug testing but you should not have to take more than 3 drug tests during the period of your Probation. You will also be required to perform 30 hours of community service. In addition, the court may require additional conditions such as payment of fines and court costs, require that you continue with your education, undergo medical or psychiatric treatment, and may require that you appear in court periodically.  The statute gives the court great latitude on imposing additional conditions on your 410 Probation.  Since every case is different, any additional requirements will depend on the particular case.

There are some drawbacks to this type of Probation. The main problem being that since you have pled guilty to the charges, if the court determines that you violated your 410 Probation for any reason, you cannot go back to that court and fight the case because you have already pled guilty. So if you violate this Probation, the only question before the court will be what your sentence should be. You will not be able to contest your guilt or innocence. If you violate your Probation, typically the court will convert the 410 Probation to a felony conviction which could involve felony Probation or a jail sentence.

Jail building in Chicago, IL.

When somebody is arrested and charged with a felony, they have a right to a bond hearing.  At the bond hearing, the judge determines how much money needs to be posted in order for someone charged with a felony to be released from jail.  The statute that lays out the various factors that must be taken into consideration when setting the amount of the bond provides that the court should take into consideration the background, character, and criminal record of the defendant.  The court should also take into consideration the nature of the offense that a defendant is charged with and their criminal record and criminal background.  The purpose of the bond is to ensure that the defendant appears in court and that the public be protected from any potential harm that the defendant could cause.  The bond amount set by the court can have enormous consequences for an individual charged with a crime.  The cash bail system is coming under increased scrutiny with charges that it is discriminatory because it is unfair to indigent defendants who do not have any money.  The same statute that lays out the various factors that the court should take into consideration also provides that Bond shall not be excessive and that the court should take the financial resources of a defendant into consideration when setting a bond.  In my 24 years of practicing law in Cook County, I must have been at hundreds of bond hearings in Cook County.  Very rarely have I heard judges ask about the financial resources of a defendant.  The problem with that is that low-level drug offenders get arrested every single day in Cook County.  When they go to Bond Court the prosecutor tells the judge about the facts of the case and about the criminal history of the defendant.  If the judge sets a low bond that requires only a few hundred dollars be posted, the judge may well have set million dollar bond.  Many of these criminal defendants have no money whatsoever so they end up languishing in jail for many months until their case is resolved just because they don’t have a hundred dollars to post for Bond.  Not only is that wrong, but it makes no economic sense.  Last year, a record 1024 inmates spent more time in custody than the length of their entire jail sentence. According to Cook County, it costs the taxpayers about $60,000 a year to house an inmate in Cook County Jail for one year.  That cost is much more if the inmate has mental health or other health problems.

Cook County has been grappling with this problem for a long time.  The economic strain on the Cook County budget has caused officials to look at different ways to lower jail population.  The focus is on how to keep nonviolent low-level offenders out of jail.  County officials want to figure out how to avoid putting people in jail who pose no risk to the public so that tax dollars and costly jail space are not needlessly used.  Cook County has instituted a program whereby Pre-Trial Services prepares a report about a particular defendant that generates a score which informs the court about the likelihood that they will fail to go to court. However, the system has been criticized as not being thorough enough and for not doing enough to reduce the jail population in Cook County.  A class-action lawsuit has recently been filed in Cook County which alleges that the cash bail system in Cook County is racially discriminatory.  The Cook County Board has scheduled meetings to look at new and different ways to address the deficiencies in the cash bail system. There are simply too many low-level drug offenders who are spending time in jail simply because they lack the financial resources to post bond and get out of jail. This problem is straining the financial resources of Cook County.

James Dimeas is an award winning criminal defense attorney and author with more than 24 years of experience aggressively representing his clients in criminal cases.  If you have a criminal case in Illinois, contact me in Chicago (312-229-5500), DuPage and Kane (630-504-2096) or Lake (847-696-6458) for a free and confidential consultation to discuss your legal options.

Domestic BatteryThe Illinois State Senate Judiciary Committee will begin hearings on changes to the Rights of Crime Victims and Witnesses Act. This Act is commonly known as the Illinois Crime Victims Bill of Rights. This Act is designed to preserve, protect and enforce the guaranteed rights of Crime Victims throughout the criminal justice process. It requires that victims receive notice of all court dates, requires prosecutors to communicate with victims, and gives victims the right to be consulted when it comes to plea agreements and at sentencing hearings.  The changes that will be considered by the Senate Judiciary Committee will give crime victims the right to hire an attorney who will represent them during the entire criminal case so as to ensure that their rights are protected and enforced at no charge.  The attorney fee will be paid from the Crime Victim Compensation Fund. This Fund was established by the State Legislature to help victims of violent crime and their families to help reduce the financial burden to them. Currently, Crime Victims are allowed to hire their own attorney to represent them in a criminal case. But under current law, the victim has to pay for the attorney out of their own pocket. The new law will provide that the attorney be paid out of this Fund.

There is no doubt that more needs to be done to help crime victims. In my practice, I frequently receive phone calls from people who are victims of crime looking for answers and looking for help. While there’s plenty of resources online for criminal defendants looking for legal representation in criminal cases, there are not enough resources to assist victims of crime. This is especially true for victims of Domestic Violence. Not only do they have to go to court and try to understand how the court proceedings will affect their lives, but many of these victims have to make arrangements to live outside the home. Some of the victims have child care issues, child support issues, child visitation issues, and various other issues having to do with raising their family during the pendency of a Domestic Battery criminal prosecution and afterwards. Many of these cases involve Orders of Protection, Conditions of Bond issues which may affect whether they can have contact with their spouse, and various other issues that go well beyond the criminal proceedings in court. These victims are in desperate need of assistance. Some of these victims have never been on their own before. These people need help and it’s very difficult, if not impossible, to find someone to help you. On top of that, to ask victims to come up with money to hire their own attorney is simply unrealistic. Prosecutors are busy prosecuting cases in court. To ask them to take on the responsibility of basically representing the victim during a criminal prosecution may be asking too much of prosecutors. There is no doubt that victims of crime need and deserve an attorney who will be with them during all the phases of a criminal case. Many victims of crime have never been exposed to the criminal justice system. Some criminal defendants have previously been through the system so they know what is happening and what is going to happen.  As with many other things, while this is a good idea, the money may not be there to make this work. The State of Illinois is going through very difficult economic times. If you ask any Illinois resident they will tell you that Illinois is basically broke. There may not be any money to make this work. So while conceptually this legislation makes sense, there may not be enough money around to make this happen.  In addition to the financial constraints, the Attorney General’s office is also withholding support for the legislation. Apparently, recent changes to this same Act were made and the Attorney General’s office wants to wait and see how the new changes operate before agreeing to more changes to the Illinois Crime Victims Bill of Rights.

If the measure makes it past the Judiciary Committee, it will go before the House and Senate for a vote.

Retail TheftThis is one of the most common questions I get asked by people that have been arrested and charged with a Retail Theft. When I get asked that question, that’s when I start asking questions. Because whether or not they committed a Retail Theft depends on the specific facts of their case.  Most of the time they tell me that they forgot to pay for an item that they had mistakenly placed in their purse or in a bag. Some people tell me that their child took an item and hid it from them without them knowing. Other people tell me they tried on a piece of jewelry and forgot to take it off. Whatever the explanation is, many of them tell me that they don’t understand how they could be charged with stealing something from a store if they did not physically leave the store when they were stopped by security.

Like many other things having to do with the legal system, there is a difference between what is commonly considered to be Retail Theft, and what the law considers to be a Retail Theft. Retail Theft is commonly referred to as shoplifting.  You do not have to get out of the store with the item in order to be guilty of a Retail Theft in Illinois. If the state is able to prove that you took something from a store with the intent to take that item without paying for it, that’s enough to prove that you are guilty of a Retail Theft. Taking something doesn’t mean that you walked out of the store with it, taking means that you took it from the shelf or the place where it was and took possession of it with the intention of not paying for it.  There’s many ways that the state can prove that you took something with the intent to not pay for it. In my 24 years of experience I cannot even begin to count the number of ways that the state has been able to prove this in cases that I have handled. Sometimes there is a loss prevention agent who testifies that they saw my client put something in their pocket. I’ve had cases where video surveillance shows my client switching price tags or placing items in their pocket or in their jacket and then walking past the cash register and not paying for the items that they had taken.  Once you walk past the last place of purchase, which is basically the cash register, without paying for the goods, then you have committed a Retail Theft. I recently had a client that was caught by security in the store parking lot after they ran out of the store with items that she had placed in her pants pockets and in her jacket. I asked the client why she ran when she was first approached by security and she client told me that she knew that she was being followed by security inside the store but didn’t know what to do when that happened. I told her that once she realized that she was being followed by security, she should have taken the items out of her pocket, put them back where she found them, and left the store. The last thing she should have done once she realized that she was being followed by security was to walk past the cash register when she knew that they knew that she had items on her that she had concealed.  As a matter of fact, store security did not approach her until after she walked past the cash register. If she had dumped the merchandise before she walked past the cash register, she would not have been arrested.

Once you are detained by store security, you need to be aware that anything you say and do can be used against you in court. And because the store security agents are not employed by the government, many of the Constitutional protections that apply to our interactions with the police, do not apply to store security. For instance, the store security agents don’t have to warn you that whatever you say can be used against you in a court of law. They don’t have to advise you that you have a right to an attorney. They can get you to sign confessions without reading you your Miranda warnings. And whatever evidence they obtain they can give to the police and you cannot argue that they did not advise you of your rights because they don’t have to. That’s why I advise my clients that if they are detained by store security, while they should not resist the agents, they should not answer their questions and they should definitely not be signing any documents that they place in front of them. Many times, the video surveillance, or the witness testimony is unclear as to whether my client was trying to steal something. But it gets very difficult to fight the case when the client signed a statement prepared by store security in which they admit that they were trying to steal. It’s not a defense in court to say that you didn’t know what you were signing. So the moral of the story is don’t sign anything put in front of you by store security and don’t answer their questions. Don’t try to talk yourself out of it. You are better off not saying anything and letting your attorney handle the case in court.

EyewitnessThere was a time when eyewitness testimony was considered the best evidence in a criminal case.  But recent scientific developments have cast doubt on the reliability of eyewitness testimony.  Surveys of jurors in criminal cases show that jurors place great weight on the testimony of eyewitnesses. This can be dangerous because jurors will put greater weight on the testimony of an eyewitness and disregard other powerful and compelling evidence of innocence.  Several high-profile cases in which defendants were convicted based on eyewitness testimony were later overturned after it was proven that the defendants were not guilty. Kyle Bloodsworth was convicted of the rape and murder of a nine-year-old girl based on the testimony of five eyewitness.  He was later cleared of the rape and murder after DNA testing proved that he was innocent.

Eyewitness testimony is based on the human memory.  To determine the reliability of eyewitness testimony, you must understand how the human memory works.  Most people think that the human memory is like a video recorder.  They believe that the human memory records the events and just plays them back exactly how they happened.  But researchers have discovered that this is not how the human memory actually works. Researchers believe that the human memory is more like a giant puzzle.  It seems like pieces of material are put together by the human brain in order to create a memory, or a narrative, of what happened.  That puzzle can be manipulated by questioning from defense attorneys or from other pieces of material that the person who is recalling the events is exposed to.  In addition, the accuracy of someone’s memory can be affected by psychological issues or substance abuse issues that the person providing eyewitness testimony may be suffering from.  In controlled studies, researchers have been able to create false memories in individuals by introducing pieces of information that did not actually occur.  The scientific studies have changed the way the legal system is dealing with eyewitness testimony.  In recent years, there has been a steady movement in the courts to allow expert testimony to be presented before a jury so that they can understand the true significance of eyewitness testimony.  The expert testimony is giving juries a more balanced and greater understanding of eyewitness testimony so that juries may be able to give a more measured response to such testimony.

Earlier this year, the Illinois Supreme Court addressed the issue of eyewitness testimony.  The court looked at the murder conviction of a man who had been convicted of the murder of a friend.  The only evidence in the case was the eyewitness testimony of a witness and a statement made by the victim identifying the defendant as the shooter.  When the defendant’s attorney sought to introduce expert testimony at trial to contest the accuracy and reliability of the eyewitness testimony, the trial court did not allow the expert testimony to be presented.  In overturning the murder conviction, the court cited the scientific evidence that we discussed earlier in this article along with the number of convictions later overturned after defendants were exonerated by DNA evidence.  The court pointed out that since 1989 there have been 150 wrongful convictions in Illinois. One-third of those wrongful convictions were based on mistaken eyewitness testimony.  The Illinois Supreme Court ruled that if prosecutors wanted to retry the defendant, the trial court must allow expert testimony to be introduced concerning the reliability of the eyewitness testimony.