Pro Se Chicago's Weblog

November 25, 2014

How confirmatory bias taints the law – a must read for all attorneys


There is a concept in psychology and psychiatry termed confirmatory bias, which often adversely influences the judgment of officers, attorneys, judges, and juries, resulting in biased, unfair or unlawful arrests, decisions and convictions. It is the unfortunate human tendency for each individual to become part of a position, to hold that position regardless and to hear only that which supports that position, a phenomenon known as “confirmatory bias”. Dr. Richard Rappaport, a nationally renowned member of the American Academy of Psychiatry and the Law concluded in an editorial in a leading Journal for the American Academy of Psychiatry and the Law, in 2006, that AZ, a civil rights activist, had been abused by the courts and police due to this principle, when they falsely labeled her as psychotic and treated her as an escaped mental patient, disregarding everything she said, withholding medication needed for medical illnesses that threatened her life, and even beat her.[1] In the 2013 murder trial of David Camm, the defense argued that Camm was charged for the murders of his wife and two children solely because of confirmation bias within the investigation.[2] Confirmatory bias is pervasive in law. It is an area which is ripe for increased efforts to recognize it, as well as for legislation and rules that incorporate methods to reduce it.  To see the rest of this article click here: HOW CONFIRMATORY BIAS TAINTS THE LAW

[1] Editorial:  Losing Your Rights: Complications of Misdiagnosis,  written by Dr. Richard Rappaport, J Am Acad Psychiatry Law 34:436-8, 2006

[2] “David Camm Blog: Investigation under fire”. WDRB. October 10, 2013.

 

August 1, 2014

Federal Petiton proving corrupt judges, sheriff, & state’s attorney in Cook County


SIC color_edited-1

PLEASE come to court and show support for Shelton at the next court date on Jan 13, 2016, 10am, 2600 S California, Chicago IL, courtroom 506. Write letters to the U.S. Attorney, Sen. Durbin, Sen. Kirk, your senator, Rep. Lipinsky or your representative, and the press. Some addresses are at end of post. Spread the word through social media that Shelton needs public support to continue these blogs and fight unlawful attacks against her in retaliation for them and for helping so many with pro se litigation and defense.

This is a petition for writ of habeas corpus to the federal district court in Chicago. The Cook County Sheriff in retaliation for Shelton filing civil rights suits has been falsely arresting Shelton repeatedly and maliciously prosecuting her for battery to officers. Of NOTE: She is never charged with battering anyone else and has a lifelong history of non-violent pacifism.  For more information go here.  Also read Shelton’s other blogs: http://cookcountyjudges.wordpress.com  http://chicagofbi.wordpress.com   http://cookcountysheriffdeputies.wordpress.com   http://illinoiscorruption.blogspot.com and search them for posts about Madigan in particular. They have beaten her so many times and so viciously that she now has post-traumatic-stress disorder and when aggressively approached by officers goes into a flashback where she cries, screams, tries to protect herself from imagined blows swinging her arms randomly (as she is reliving attacks) and cowers. If she is pushed, carried, or dragged, due to disabilities and severe balance problems she grabs at things to steady herself – all the while being out of touch with reality during these brief PTSD flashbacks. She has been arrested and charged with FELONY battery to an officer with a possible sentence of 3-14 years for “touching an officers ear and pulling her hair until her hand slipped off”. She has been held in jail one year on no bail and only recently released on $300,000 bail. This is unconstitutional excessive bail She has been denied notice, counsel of choice, discovery of evidence, and has been fraudulently accussed of being psychotic and unfit for trial, illegally without notice or jury trial, without any professional saying she was psychotic or unfit, sent to a secure mental health facility who after a few months said in court she was never unfit and is not psychotic and sent her back to jail. As a result of this lawlessness Shelton has now filed at Petition for Writ of Habeas Corpus to the Federal District Court asking for relief and presentment of the criminal conduct of judges, sheriff staff, state’s attorney, court clerk, and other corrupt persons to the U.S. Attorney for  prosecution. You can read it here: (download will be 24 pages) fed habeas 6-12-14 final Full Petition with evidence (download will be 400+ pages) Habeas Petition Asst. US Attorney Zachary T. Fardon United States Attorney’s Office Northern District of Illinois, Eastern Division 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Phone: (312) 353-5300 ______________________ FBI,Special Agent in Charge – Chicago Robert J. Holley 2111 W. Roosevelt Road Chicago, IL 60608 Phone: (312) 421-6700 Fax: (312) 829-5732/38 E-mail: Chicago@ic.fbi.gov _________________________ Senator Durbin WASHINGTON, D.C. 711 Hart Senate Bldg. Washington, DC 20510 9 am to 6 pm ET (202) 224-2152 – phone (202) 228-0400 – fax ____________________ Senator Kirk Washington, DC 524 Hart Senate Office Building Washington DC, 20510 Phone: 202-224-2854 Fax: 202-228-4611 ___________________ Congressman Lipinsky Washington, D.C. Office 1717 Longworth HOB Washington, DC 20515 P (202) 225 – 5701 P (866) 822 – 5701 F (202) 225 – 1012

July 31, 2014

When opposing counsel lie to the court


You can file a Petition for adjudiction of criminal contempt against the attorney whether the case is in the local court or the appellate court. You should attach an affidavit stating that you have reviewed the transcripts or motion wherein the false statement was made. You should swear that the statement was false and how it was false You can ask the court to hold the attorney in contempt for fraud upon the court and sentence him for criminal contempt after a trial. If the court holds the attorney in contempt for fraud, then you can file with the ARDC and ask for the attorney to be disbarred. ARDC = Attorney Regulatory and Disciplinary Commission.

A petition is written just like a motion, but it is a collateral proceeding and not part of the case. It should be given a separate case number by the clerk.

Opposing counsel is an officer of the court. Attorneys have a code of conduct under IL Supreme Court Rules that prevent them from making false statements. They can be disbarred and should be.

Criminal contempt is when someone makes  false statements or commits fraud upon the court. Criminal contempt cannot be purged. As those charged with crimes have a 5th Amendment right to remain silent they can not be ordered to show cause as in a civil contempt case where someone refuses to obey an order.  Therefore you must file a Petition for Adjudication of Criminal Contempt instead of a Motion for Rule to Show Cause as you would with civil contempt. Criminal contempt is an act that

Civil  contempt is when you disobey an order and you hold the keys to the jail as you can expunge the order to jail you if you comply with the order such as pay child support or perform an act ordered by the judge. This is not an attempt to embarrass the court or bring the court into disrepute.

The following contains extensive important case law relevant to above and your cases.

CONTEMPT OF COURT (CIVIL V CRIMINAL) 

Circle Management, LLC., v. Olivier, 378 Ill.App.3d 601, 317 Ill.Dec. 555, 882 N.E.2d 129 (2007) [Ill.App. 1st Dist]

Major controlling case with amici including Legal Assistance Foundation of Metropolitan Chicago (LAF), the Lawyer’s Committee for Better housing (LCBH), Cabrini-Green legal Aid (CGLA) and the Northwestern University School of Law Bluhm Legal Clinic (Bluhm Clinic).

         

Courts have inherent authority to punish a party for contempt. See People v. Warren, 173 Ill.2d 348, 370, 219 Ill.Dec. 533, 671 N.E.2d 700 (1996) (“The power to punish for contempt does not depend on constitutional or legislative grant”) [further citations omitted]

“Contempt of court has been defined as any act that is calculated to embarrass, hinder, or obstruct a court in the administration of justice, or that is calculated to lessen its authority or dignity.” Levaccare v. Levaccare, 376 Ill.App.3d 503, 508, 315 Ill.Dec. 280, 876 N.E.2d 280 (2007), quoting People v. Budzynski, 333 Ill.App.3d 433, 438, 266 Ill.Dec. 713, 775 N.E.2d 275 (2002).

Criminal contempt sanctions are punitive in nature and require a finding that the contemptuous conduct was willful. People v. Minor, 281 Ill.App.3d 568, 574, 217 Ill.Dec. 449, 667 N.E.2d 538 (1996); People v. Ernest, 141 Ill.2d 412, 422, 152 Ill.Dec. 544, 566 N.E.2d 231 (1990).

Civil contempt is prospective in nature, and is “designed to compel future compliance with a court order.” Emery, 374 Ill.App.3d at 977, 313 Ill.Dec. 502, 872 N.E.2d 485, quoting In re Marriage of Sharp, 369 Ill.App.3d 271, 279, 307 Ill.Dec. 885, 869 N.E.2d 539 (2006).

Although a court may enforce an order to pay money through contempt, this power is “limited to cases of willful refusal to obey the court’s order.” In re Marriage of Logston, 103 Ill.2d 266, 285, 82 Ill.Dec. 633, 469 N.E.2d 167 (1984).

“’It is not a contempt of court to fail to pay money which one neither has nor can obtain and which he has not causelessly either put out of his hands or failed to receive.’” Shapiro v. Shapiro, 113 Ill.App.2d 374, 388, 252 N.E.2d 93 (1969), quoting White v. Adolph, 305 Ill.App.76, 79, 26 N.E.2d 993 (1940)

Trial courts have inherent authority to impose sanctions against a party that fails to abide by valid court orders. Sander v. Dow Chemical Co., 166 Ill.2d 48, 67, 209 Ill.Dec. 623, 651 N.E.2d 1071 (1995); Smith v. City of Chicago, 299 Ill.App.3d 1048, 1054, 234 Ill.Dec. 108, 702 N.E.2d 274 (1998).

FRAUD – NOT JUST FALSE STATEMENT, BUT ALSO SUPPRESSION OF THE TRUTH

It is also clear and well-settled Illinois law that any attempt to commit “fraud upon the court” vitiates the entire proceeding. People v. Sterling, 357 Ill. 354; 192 N.E. 229 (1934) (“The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions.”); Moore v. Sievers, 336 Ill. 316; 168 N.E. 259 (1929) (“The maxim that fraud vitiates every transaction into which it enters …”); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962) (“It is axiomatic that fraud vitiates everything.”); Dunham v. Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949); Stasel v. The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935).

Fraud maybe inferred from nature of acts complained of, individual and collective interest of alleged conspirators, situation, intimacy, and relation of parties at time of commission of acts, and generally all circumstances preceding and attending culmination of claimed conspiracy Illinois Rockford Corp. V. Kulp, 1968, 242 N.E. 2d 228, 41 ILL. 2d 215. “The Court has broadly defined fraud as any conduct calculated to deceive, whether it be by direct falsehood or by innuendo, by speech or silence, by word of mouth, by look, or by gesture. Fraud includes the suppression of the truth, as well as the presentation of false information. (In re Witt (1991) 145 Ill.2d 380, 583 N.E.2d 526, 531, 164 Ill. Dec. 610).” See also In re Frederick Edward Strufe, Disciplinary case no. 93 SH 100 where the Court stated that “Fraud has been broadly defined as anything calculated to deceive.” “Fraud upon the court” has been defined by the 7th Circuit Court of Appeals to “embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore’s Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated “a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final.”

Fraud does not always divest court of jurisdiction and cause orders to be void. They however would be voidable.

 

Misrepresentation of neglect in petition for wardship did not void jurisdiction.

 

An order is rendered void only by lack of jurisdiction, not by error or impropriety. (p. 377)

 

Only fraud that confers only colorable jurisdiction upon court renders judgment void; fraud that occurs after court’s valid

 

Fraud can render a judgment void, but not all fraud can do so. (Johnson v. Hawkins (1972), 4 Ill.App.3d 29, 32, 280 N.E.2d 291.) There is a difference between fraud that confers only colorable jurisdiction upon the court, and fraud that occurs after the court’s valid acquisition of jurisdiction; only the former type of fraud will render a judgment void. (Schwarz v. Schwarz (1963), 27 Ill.2d 140, 144-45, 188 N.E.2d 673.) The latter type of fraud, fraud that occurs after jurisdiction has been acquired, will render the court’s  order voidable, but not void for lack of jurisdiction. (Vulcan Materials Co.  v. Bee Construction, 96 Ill.2d at 165, 70 Ill.Dec. 465, 449 N.E.2d 812; In re Marriage of Noble (1989), 192 Ill.App.3d 501, 509, 139 Ill.Dec. 133, 548 N.E.2d 518; James v. Chicago Transit Authority (1976), 42 Ill.App.3d 1033, 1034-35, 1 Ill.Dec. 552, 356 N.E.2d 834; Johnson v. Hawkins, 4 Ill.App.3d at 32, 280 N.E.2d 291.) Fraudulent concealment, for example, renders a court’s orders voidable, not void. In re Application of County Treasurer (1990), 194 Ill.App.3d 721, 726, 141 Ill.Dec. 350, 551 N.E.2d 343.

 

Can file civil rights suit against lawyer when they lie to the court and harm you

In ?  Vigus v. O’Bannon, 1886 N.E. 788, 118 Ill. 334; Hazelton v. Carolus, 1907 132 Ill. App. 512; Carter v. Mueller 457 N.E. 2d 1335 Ill. App. 1 Dist. 1983, The Supreme court has held that: “The elements of a cause of action for fraudulent misrepresentation (sometimes referred to as “(fraud and deceit)”are: (1) False statement of material fact; (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. ______________, ____ U.S. _____ (_?_)

_____? citation_______Scott, 377 Mass. 364, 386 N.E. 2d 218, 220 (1979) See Lopez-Alexander, Unreported Order No. 85-279 (Colo. May 3, 1985) (Judge removed for, inter alia, a persistent pattern of abuse of the contempt power. The Mayor of Denver accepted the findings of the Denver County Court Judicial Qualification Commission that the judge’s conduct could not be characterized as mere mistakes or errors of law and that the conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute). Canon Ethics where there is a pattern of disregard or indifference, which warrant discipline.

Section 1983 of U.S.C.S. contemplates the depravation of Civil Rights through the Unconstitutional Application of a Law by conspiracy or otherwise. Mansell v. Saunders (CA 5 F 1A) 372 F 573, especially if the conspiracy was actually carried into effect, where an action is for a conspiracy to interfere with Civil Rights under 42 U.S.C.S. 1985 (3), or for the depravation of such rights under 42 U.S.C.S. 1983, if the conspiracy was actually carried into effect and plaintiff was thereby deprived of any rights, privileges, or immunities secured by the United States Constitution and Laws, the gist of the action maybe treated as one for the depravation of rights under 42 U.S.C.S. 1983, Lewis v. Brautigam (CA 5 F 1a) 227 F 2d 124, 55 ALR 2d 505, John W. Strong, 185, 777-78 (4 th ed. 1992).

Properly alleged facts within an affidavit that are not contradicted by counter affidavit are taken as true, despite the existence of contrary averments in the adverse party’s pleadings. Professional Group Travel, Ltd. v. Professional Seminar Consultants Inc., 136 ILL App 3d 1084, 483 N.E. 2d 1291; Buzzard v. Bolger, 117 ILL App 3d 887, 453 N.E. 2d 1129 et al.

i.e. even if false statements, unless you have affidavits that they are false, the statement is taken as true

FRAUD BY STATE IN CRIMINAL CASE – FALSE STATEMENTS TO CRIMINAL COURT

 

Where the public policy of the State of Illinois is violated, the order is void, Martin-Tregona v. Roderick, 29 Ill.App.3d 553, 331 N.E.2d 100 (1st Dist. 1975).

“Fraud upon the court” makes void the orders and judgments of that court. It is clear and well-settled law that any attempt to commit “fraud upon the court” vitiates the entire proceeding. People v. Sterling, 357 Ill. 354, 192 N.E. 229 (1934)

To apprehend a person on a sham or pretextual charge is so dangerous to interest of privacy and personal security as to call into play the exclusionary rule … The officer’s subjective intent and beliefs are quite crucial … If sham arrest operating under the impression that an arrest for offense count not stand up – use exclusionary rule …arrest must have a good faith probable cause  Carroll v. United States 267 U.S. 132, 156, 69 L.Ed. 543, 45 S.Ct 280 (1925); Moss v. Cox, 311 F.Supp. 1245, 1252 (ED VA 1970)

Due Process Defense 97 ALR Fed. 273

Inability to pay child support, court fee, & court-appointed counselor or examiner


A COURT MAY AWARD THE NONCUSTODIAL PARENT CHILD SUPPORT IF THE CUSTODIAL PARENT IS MUCH WEALTHIER THAN NONCUSTODIAL PARENT. THIS IS SO THAT CHILD CAN LIVE SAME LIFESTYLE WITH BOTH PARENTS.

In re Marriage of Turk 2014 IL 116730

 

Appellate citation: 2013 IL App (1st) 122486.

 

      JUSTICE KARMEIER delivered the judgment of the court, with opinion.

            Chief Justice Garman and Justices Freeman, Kilbride, and Burke concurred in the judgment and opinion.

      Justice Theis specially concurred, with opinion, joined by Justice Thomas.

 

            The parties to this Cook County child support dispute divorced in 2005 and have two sons, now ages 17 and 15. In 2012, the circuit court entered an agreed order establishing the father as custodial parent and setting up a visitation schedule for the mother under which she had regular visitation with the older boy once a week, for dinner on Wednesdays, and regular visitation with the younger boy, with weekly visits from Monday to Wednesday mornings, plus alternating weekends. This system gave her nearly equal time with him. At this time it was determined that the father earned approximately $150,000 per year and that the mother was earning less than $10,000. The father asked for termination of his obligation to pay support based on his custodial status, but the circuit court’s order required him to pay $600 per month in child support and to fund medical expenses not covered by insurance. The father’s claim that his designation as custodial parent meant that statute precluded requiring him to pay child support to a noncustodial parent was rejected by the circuit court, and the father appealed.

            The appellate court, like the circuit court, rejected the father’s claim of no obligation to pay child support, and it affirmed this aspect of the trial court’s ruling. However, it remanded for an evidentiary hearing for reconsideration as to the support amount. It did not, however, interfere with the circuit court’s ruling as to medical expenses.

            In this decision, the Illinois Supreme Court said that the Illinois Marriage and Dissolution of Marriage Act expressly confers on courts the option to order either or both parents to pay an amount that is reasonable and necessary for the support of the child, and, in its discretion, to order payment of various expenses determined to be reasonable, including health needs not covered by insurance. The supreme court explained that a parent who is technically noncustodial may have visitation rights which place the child in that parent’s care for periods of time which involve commensurate cost. This can be problematic if the noncustodial parent has fewer resources to meet the substantial support costs of an extensive visitation schedule. This would not only be unfair, but would leave the poorer parent with insufficient resources to care for the child in a manner even minimally comparable to that of the wealthier parent. A child should not end up living commensurate with the wealthier custodial parent’s income only half the time, when staying with the wealthier custodial parent. This could be detrimental to the child. Therefore, a trial court may order a custodial parent to pay child support where the circumstances and the best interests of the child warrant it.

            While rejecting the custodial father’s claims as to the meaning of the statute, the appellate court had remanded for an evidentiary hearing, with directions for the circuit court to clearly explain the basis for any support awarded. It was correct in this regard, but the supreme court held that, on remand, the circuit court should also revisit with specificity the issue of what portion of uninsured medical expenses the father should be required to pay.

            The appellate court was, thus, affirmed in part and reversed in part.

________________________________________________________________

THE U.S. SUPREME COURT HAS HELD THAT BEFORE A PERSON CAN BE JAILED FOR NONPAYMENT OF CHILD SUPPORT HE MUST BE GIVEN DUE PROCESS AND IN SOME CASES AN ATTORNEY – IF THE COURT DOES NOT PROVIDE THAT DUE PROCESS AS DEFINED IN THIS CASE

Turner v. Rogers, 131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011) [2011 BL 161240]

If incarcerated for failing to pay child support must have been given due process – notice, due process evidentiary hearing where it must be proven that defendant has ability to pay child support, and counsel. In a civil case, due process does not always involve appointment of counsel.

This is true only if there are procedural safeguards:

These include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay,

and the opposing counsel (parent) is pro se, then the court is not required to appoint counsel.

 

June 17, 2014

Offers of Proof – Preserving barred evidence & testimony for appeal


OFFERS OF PROOF

These are used to preserve evidence or testimony for the record when the court bars its introduction during the trial or during an evidentiary hearing. During a trial, if an offer of proof is formally made, the jury will be excluded and the witness is put on the stand so that the testimony will be on the transcript or the attorney/pro se counsel may put the evidence on the record or state what they expect a witness would have said in detail, just to get it on the record for purposes of appeal.  Anything not on the record cannot be considered for appeal.  If the judge won’t let you do this, you can file an offer of proof with an attached affidavit as to what the witness would have said or attached evidentiary document. This memorandum explains offers of proof a little more clearly. Everything I write uses Illinois and federal case law. 

MEMORADUM OF LAW – OFFERS OF PROOF

NOW COMES, Linda Shelton who respectfully presents to the court this memorandum of law.

  1. The refusal to allow an offer of proof in a trial denies due process and is reason for overturning the verdict. Every defendant has a Sixth Amendment right to present a defense. People v. Manion, 67 Ill.2d 564, 10 Ill.Dec. 547, 367  N.E.2d 1313 (1977) It is a fundamental error to deny the right to present a defense that requires the verdict be overturned. (Ibid)  Refusing to allow a person to place an offer of proof on the record, de facto denies defendant the right to present a defense.
  2. “When a party claims she has not been given the opportunity to prove her case because the trial court improperly barred certain evidence, she “must provide [the] reviewing court with an adequate offer of proof as to what the excluded evidence would have been.” In re Estate of Romanowski, 329 Ill. App. 3d 769, 773, 771 N.E.2d 966, 970 (2002). An offer of proof serves two primary functions: (1) it discloses to the trial court and opposing counsel the nature of the offered evidence, thus enabling the court to take appropriate action, and (2) it provides the reviewing court with an adequate record to determine whether the trial court’s action was erroneous. People v. Thompkins, 181 Ill. 2d 1, 10, 690 N.E.2d 984, 989 (1998).
  3. The traditional way of making an offer of proof is the “formal” offer, in which counsel offers the proposed evidence or testimony by placing a witness on the stand, outside the jury’s presence, and asking him questions to elicit with particularity what the witness would testify to if permitted to do so. People v. Wallace, 331 Ill. App. 3d 822, 831, 772 N.E.2d 785, 794 (2002); M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §103.7, at 22 (8th ed. 2004).
  4. In lieu of a formal offer of proof, counsel may ask the trial court for permission to make representations regarding the proffered testimony. If counsel so requests, the court may–within its discretion–allow counsel to make such an informal offer of proof.
  5. A trial court may deem an informal offer of proof sufficient if counsel informs the court, with particularity, (1) what the offered evidence is or what the expected testimony will be, (2) by whom it will be presented, and (3) its purpose. Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill. App. 3d 444, 451, 818 N.E.2d 713, 719 (2004). However, an informal offer is inadequate if counsel (1) “merely summarizes the witness’ testimony in a conclusory manner” (Snelson v. Kamm, 204 Ill. 2d 1, 23, 787 N.E.2d 796, 808 (2003)) or (2) offers unsupported speculation as to what the witness would say (People v. Andrews, 146 Ill. 2d 413, 421, 588 N.E.2d 1126, 1132 (1992)). In deciding whether to permit an informal offer of proof, the court should ask itself the following questions: (1) Are counsel’s representations accurate and complete? and (2) Would a better record be made by requiring counsel to make a formal offer of proof, even though doing so might be inconvenient and require more time?
  6. In addition, before deciding whether to accept counsel’s representations in lieu of a formal offer, the trial court should ask opposing counsel if he objects to proceeding in that fashion, even though counsel’s response in no way limits the court in exercising its discretion on this matter. If opposing counsel concedes the sufficiency of the offer or has no objection to proceeding by counsel’s representations, then opposing counsel’s client may not later challenge the court’s decision to proceed by counsel’s representations, rather than a formal offer. See In re Detention of Swope, 213 Ill. 2d 210, 217, 821 N.E.2d 283, 287 (2004) (“Simply stated, a party cannot complain of error which that party induced the court to make or to which that party consented”); In re Marriage of Sobol, 342 Ill. App. 3d 623, 630, 796 N.E.2d 183, 188 (2003) (a party forfeits the right to complain of an alleged error when to do so is inconsistent with the position the party took in the trial court).
  7. We emphasize that a trial court is never required to settle for less than a formal offer of proof, whatever the positions of the parties at trial may be. Whether to do so is left entirely to the court’s discretion. Thus, if the trial court is not satisfied that counsel’s representations alone are sufficient, the court may require counsel to place his witnesses on the stand and make a formal offer of proof.”  Miller v. Miller, 2004 Ill. App. 4th Dist.

 

QUOTED FROM ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION  9 — 35

EVIDENTIARY MOTIONS AT TRIAL §9.48

 

 

  1. “Offers of proof are technically not evidentiary motions but rather serve as a sort of narrative insurance policy for appeal. Offers of proof are designed to preserve the record and guarantee that testimony that is not allowed is at least previewed for the appellate court. The purpose of offers of proof is discussed in Lagestee v. Days Inn Management Co., 303 Ill.App.3d 935, 709 N.E.2d 270, 237 Ill.Dec. 284 (1st Dist. 1999). Lagestee followed previous holdings that offers of proof are made to disclose to opposing counsel and the trial court the substance of excluded evidence and to enable the reviewing court to determine whether the trial court committed error thereon. It should be noted that unlike most of the motions made at trial, a motion to make an offer of proof is not subject to the discretion of the court. It has been held in People v. Richmond, 201 Ill.App.3d 130, 559 N.E.2d 302, 147 Ill.Dec. 302 (4th Dist. 1990), that trial courts are required to permit counsel to make offers of proof. Refusal to permit an offer may constitute error. However, refusal of an offer is not error if the suggested testimony is not relevant.

 

  1. Because offers of proof are essential to make and preserve a viable record, the offers should be as accurate as possible. In Snelson v. Kamm, 319 Ill.App.3d 116, 745 N.E.2d 128, 253 Ill.Dec. 354 (4th Dist. 2001), aff’d in part, rev’d in part, 204 Ill.2d 1 (2003), an offer was held adequate if it informed the court of the particular answer that would have been given. Note that Snelson also holds that a summary or synopsis will not suffice. The offer must be as accurate as possible.

 

  1. To insure that the offer is as accurate as possible, the author would urge that counsel write out, or at least loosely outline, the offer in advance so that it can be read carefully into the record. Obviously, the offer cannot always be written out; but in most instances, the opponent’s objection and the court’s possible denial can be anticipated. A written statement or an outline helps to ensure that all necessary evidentiary elements are included and clearly and artfully set forth. If the need for an offer has not been anticipated, counsel may ask the court’s indulgence for a short break to gather his or her thoughts and compose or outline the offer. If the evidence has been excluded during the testimony of a witness, the questions and proposed answers should be set so as to show the reviewing court what has been excluded. The traditional or classic method of making the offer involves posing the question and eliciting the answers from the witness. The alternative to the questions-and-answers format is for counsel to read the offer into the record. Presenting an offer of proof by orally reciting the substance of the expected testimony was specifically approved in Wright v. Stokes, 167 Ill.App.3d 887, 522 N.E.2d 308 (5th Dist. 1988). Although it runs counter to the conventional method of putting the witness on the stand, the narrative by counsel is the most effective and safest method. The narrative avoids an inarticulate or nervous witness who is very likely to be shocked and concerned by the exclusion of his or her testimony, insures that the testimony is on point, and should provide the optimum voice in setting forth the reasons why the evidence has been improperly excluded. An offer read into the record by counsel is generally more orderly and better understood.

 

  1. In making the offer, specificity is the goal. Conclusory or summary statements as to what the testimony or evidence would have shown will not preserve the record. Snelson, supra. Any offer of proof should be made out of the presence of the jury, and it is suggested that at the close of the offer counsel renew the request that the testimony be allowed into evidence. Restatement of the request gives continuity to the record, ties up loose ends, and ensures that the offer and the ruling of the court are tied together and understood by the reviewing court.

 

  1. Various texts and cases reflect a further relaxation in the method of making an offer and go as far as to suggest that it is not needed at all when the court clearly understands the objection and the nature of the evidence being offered. See People v. Foster, 81 Ill.App.3d 915, 401 N.E.2d 1221, 37 Ill.Dec. 128 (1st Dist. 1980). Notwithstanding Foster, it is strongly suggested that the offer of proof be made outside the presence of the jury in a formal manner whenever testimony has been circumscribed in whole or in part.

 

  1. From a purely practical standpoint, there is generally little likelihood that the offer of proof will have an immediate impact on the trial court. The fact that the offer is being made is indicative of the trial court’s position. The offer is primarily directed toward compiling and preserving an accurate record for appeal. Since the offer entails the refusal of testimony during the case in chief, it properly should be viewed as a very serious motion deserving careful attention.

 

  1. Thus, the offer of proof satisfies two critical needs in preserving the record on appeal: it demonstrates (1) that an error has been committed in excluding evidence and (2) that that error was harmful to the presentation of counsel’s case in chief. The author believes that the only way the above defects can be lucidly conveyed to an appellate court is through a disciplined, formal recitation on the record, as in the following sample: Your Honor, at this time I would like to make an offer of proof in connection with the testimony of [witness]. [Witness], if allowed to testify under oath in these proceedings, would testify as follows: [foundation establishing background and competency, and then a specific narrative of the substantive testimony that would have been adduced.]

 

  1. Again, the offer of proof should be as specific as possible, at all times avoiding summaries or vague conclusions.” [emphasis added]

 

Dated: April 29, 2014

Respectfully submitted,

 

 

Linda L. Shelton

Pro Se Defendant

 

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