IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS CRIMINAL DIVISION

People of the State of IIIinois,

Plaintiff,

v.

Hyungseok Koh,

Defendant.

) ) ) ) ) ) ) ) ) )

01 No. 09 CR 9151 Q'

. 'Ji .. ~ (

Hon. Garritt Howaj#

~I ~I i:" n -,--'" w

DEFENDANT'S MOTION TO RECONSIDER THE COURT'S ORDER J§XCLUDING DEFENSE'S LINGUISTICS EXPERT DR. MARGARET VAN NAERSSEN W

Defendant Hyungseok Koh, by and through his attorneys, hereby requests lhat the Court

reconsider its order of August 24, 2012, in which it granted lhe People's Motion to Bar

Introduction of Defense's Linguistic Expert Dr. Margaret Van Naerssen ("State's Motion"), and

states as follows:

BACKGROUND

1. The full background relevant to the State's Motion is set forth in the Defendant's

Response to lhe State's Motion, filed on August 22, 2012, and is herein incorporated by

reference.

2. Mr. Koh is a native of Korea who was interrogated primarily in English at the

Northbrook Police Departrnent on April 16, 2009. His defense has retained an expert in

linguistics and English language assessment, Dr. Margaret Van Naerssen. Dr. Van Naerssen met

with Mr. Koh in the Cook County jail this spring where she conducted English language

assessment testing. She also anaIyzed lhe audio/video-tape of Mr. Koh's April 16, 2009

interrogation. After lhat work, Dr. Van Naerssen opined in her expert report that (1) Mr. Koh

cornmunicates at a "Low-Interrnediate" level in English; and (2) Mr. Koh's limited English

proficiency seriously affected his ability to fully and effectively participate m the police

interrogation.

3. On July 13, 2012, the State filed its Motion arguing, among other things, that Dr.

Van Naerssen's expert testimony would not aid the jury because the fact that Mr. Koh, "like

many non-native speakers, may have more difficulty understanding a police officer, is not

beyond the ken ofthe average juror." (State's Mot. at 7.)

4. After hearing argument on August 24,2012, the Court granted the State's Motion,

and ruled as follows:

The State's motion to bar the testimony of the linguistics expert, Dr. Margaret Van Naerssen, is granted for the same reasons 1 just gave regarding the Korean interpreter Myong Kim.! 1 find that such testimony would not aid the jury in determining any relevant issue. The questions asked and the answers given are preserved on the video. They will not change. If there is a particular reason the defendant gave a particular answer to a particular question, only the defendant can explain that reason. No expert witness can do that for him. Dr. Van Naerssen's opinion testimony would invade the province of the jury in determining the credibility and weight to be given to the statements made by the defendant during the course of the interview.

(Ex. A, 8/24/12 Hr'g Tr. at 78.)

ARGUMENT

5. The Defense respectfully submits that the Court erred in its ruling of August 24

for the following three reasons and therefore requests that the Court reconsider its ruling.

! Among the reasons the Court gave for granting the motion in limine conceming Mr. Myong Kim was the following: "If the defendant contends that he gave a certain answer or answers because he was confused by the questions, he may certainly do so by testifying at trial. No one else can do that for him." (Ex. A, 8/24/12 H'rg Tr. at 77.)

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I. Pursuant To The Fifth Amendment Of The U.S. Constitution, And Article 1, Section 10, Of The Illinois Constitution, Mr. Koh Should Not Be Forced To Testify About His Subjective Understanding Of His English Ability If He Wants To Introduce Testimony About His English Capability.

6. "The right against self-incrimination is one of the most fundamental rights under

the Constitution ofthe United States." CHB Uptown Props., LLC v. Fin. Place Apartments, 378

Ill. App. 3d 105, 108 (1st Dist. 2007) (quoting Mueller Indus., Inc. v. Berkman, 399 Ill. App. 3d

456,479-80 (2d Dist. 2010)).

7. Where courts or laws have burdened the Fifth Amendment right in various ways

short of actually compelling testimony from the defendant, such actions have been held to be

unconstitutional. See, e.g., Brooks v. Tennessee, 406 U.S. 605, 611 (1972) (holding that state

rule requiring defendant to testify, if at all, before the defense presents any other testimony

violates the Fifth Amendment because it required the defendant to decide to testify without

knowing the strength of the other evidence presented on his behalf); Gardner v. Broderick, 392

U.S. 273, 277-79 (1968) (holding that firing a police officer for refusing to waive his Fifth

Amendment privilege violated the right against self-incrimination); Grifjin v. California, 380

U.S. 609, 613-14 (1965) (holding that the Fifth Amendment bars comment by the court or

prosecutor on the defendant's decision not to testify because such comments "cut[] down on the

privilege by making its assertion costly"); see also People v. Crabtree, 162 Ill. App. 3d 632,635

(4th Dist. 1987) (reversing conviction in light of judge's statement to defendant about taking the

stand ifhe disagreed with something being said).

8. Mr. Koh respectfully submits that the Court's ruling has unlawfully burdened his

Fifth Amendment right in effectively leaving Mr. Koh but one option to present testimony about

his English capability: through taking the stand in his own defense, even though he is not fully

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capable of addressing the issues relating to his own English abilities, as discussed below in more

detail. Such a Hobson's choice violates Mr. Koh's Fifth Amendment right.

11. Only Dr. Van Naerssen Can Provide Objective Expert Evidence About Mr. Koh's English Language Ability.

9. While the Court ruled that only Mr. Koh, not an expert, could explain why he

provided certain answers to questions during his interrogation, the fact is that Mr. Koh cannot

objectively tell where his English lies on the continuum of language proficiency (and the

implications thereof), which is why Dr. Van Naerssen's testimony is critical.

10. Much like a defendant who is mentally impaired and unable to objectively assess

his or her own cognitive abilities, Mr. Koh is not an expert in English language comprehension,

and his view of his own ability to comprehend and speak in English may not be reliable or

sufficient. While Mr. Koh may theoretically be able subjectively to say whether he thought he

understood specific exchanges, only an expert can objectively say what his level of

comprehension of English language is and how that affects him cognitively. Indeed, in her

report, Dr. Van Naerssen points to linguistic literature discussing the propensity of non-native

English speakers not to admit their language limitations and/or not to recognize their language

limitations. (See Dr. Van Naerssen's Report, Exhibit B to Mr. Koh's 8/22/12 Response, at 3.)

11. In light of the inability of defendants to gauge their own capabilities in many

circumstances, Illinois courts have allowed psychologists to testify about defendants' mental

state at the time ofinterrogations. See, e.g., People v. Gilliam, 172 Ill. 2d 484,512-13 (1996)

(affirrning trial court's ruling that expert could testify as to the defendant's "mental state or

condition" when he confessed, but could not testify as to the fact that the defendant's desire to

save his family made him suggestible because the latter was within the common knowledge of a

lay juror). Similarly, in People v. Williams, 128 Ill. App. 3d 384, 393 (4th Dist. 1984), the

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defendant was allowed to provide expert testimony at trial that defendant had limited

intelligence, which the court allowed because it was relevant to the defendant's credibility and it

was one of the circumstances under which the alleged confession was made.

12. For similar reasons, other courts, when faced with defendants with English

language limitations, have allowed linguistic experts to testify because they can provide what the

defendants cannot - an objective and expert explanation of the defendant's ability to process

English. See, e.g., Us. v. Siemaszco, 2008 WL 7489322, at *2-3 (N.D. Ohio July 21, 2008)

(allowing expert who interviewed the defendant to pro vide an explanation of the "Defendant' s

abilities to process English and respond appropriately," which the Court found would "help the

jury understand the problems of speakers utilizing English as a second language" and would

provide the jury with "insight into the Defendant' s ability to process, understand and respond in

English. ")

111. Illinois Law Permits· Mr. Koh To Provide Testimony Concerning AH The Circumstances Surrounding His AHeged Confession, And Dr. Van Naerssen's Testimony Would Not Invade The Province OfThe Jury.

13. While the Court ruled that Dr. Van Naerssen's testimony would "invade the

province of the jury in determining the credibility and weight to be given the statements made by

[Mr. Koh] during the course of the interview," Illinois law allows Mr. Koh to present evidence

concerning circumstances that go to the reliability of a purported confession, and Dr. Van

Naerssen's testimony does that without opining directly on the weight to be given to specific

statements by Mr. Koh.

14. "If the court rules that the confession is voluntary and admissible in evidence, the

defendant still has the right to present evidence to the jury that affects the credibility or weight to

be given the confession." Gilliam, 172 Ill. 2d at 512-13. Accordingly, in Gilliam, the defendant

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was allowed to present the evidence of a psychologist who opined on the defendant's "mental

state or condition" when he allegedly confessed notwithstanding the fact that such testimony

went to the reliability and weight of the confession.

15. In People v. Melock, 149 Ill. 2d 423, 458 (1992), the Supreme Court of Illinois

held that the exclusion of evidence conceming defendant's polygraph testing was reversible error

where the defendant was offering the evidence to attack the reliability of the confession. The

Court held that "a defendant in a criminal case has a right at trial to present evidence conceming

the circumstances of his confession." Id. (citing Crane v. Kentucky, 476 U. S. 683 (1986». The

Court noted that the question of credibility of a confession is submitted to the jury, but also noted

that "[f]undamental justice requires that the defendant have every opportunity to controvert the

State's proof. Defendant has a right, regardless ofhow substantial or infirm the evidence against

him, to familiarize the jury with every circumstance attendant to the State's obtention of his

confession." Id. at 465; see Crane, 476 U.S. at 689 ("stripped of the power to describe to the

jury the circumstances that prompted his confession, the defendant is effectively disabled from

answering the one question every rational juror needs answered: If the defendant is innocent,

why did he previously admit his guilt?"); see also IPI CRIM. 3.06 - 3.07 ("In determining the

weight to be given to a statement, you should consider all of the circumstances under which it

was made.")

16. Dr. Van Naerssen's objective expert testimony about Mr. Koh's English abilities

would substantially inform the jury conceming one of the most significant "circumstances" of

Mr. Koh's purported confession, and this is evidence that no other witness, including Mr. Koh,

could provide. Moreover, while there is arguably a fine line under which expert testimony going

to the weight of statements can be admitted, cases such as Gilliam, 172 Ill. 2d at 512-13,

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Williams, 128 Ill. App. 3d at 393, and Siemaszco, 2008 WL 7489322, at *2-3, show that Dr. Van

Naerssen's testimony would not cross that lineo

17. Indeed, the score of Dr. Van Naerssen's language assessment for Mr. Koh is like

an objective fact drawn out through expertise and is akin to a psychologist conducting a standard

battery of intelligence tests. See Williams, 128 Ill. App. 3d at 393 (psychologist allowed to

testify about intelligence tests administered to the defendant indicating that defendant was of

limited intelligence, which the court found was "relevant to the weight and credibility to be given

defendant's statements"). Moreover, her report contains no conclusion about whether Mr. Koh

made false statements during his interrogation. (See Dr. Van Naerssen's Report, Exhibit B to

Mr. Koh's 8/22/12 Response.) Accordingly, her objective expert opinion on Mr. Koh's English

ability (and what that level of proficiency means for someone like Mr. Koh), is something the

jury should be allowed to consider along with other factual circumstances conceming Mr. Koh's

interrogation in determining the weight to give Mr. Koh's statements.2

18. Should the Court deny this motion to reconsider and the State introduce testimony

at trial regarding Mr. Koh's ability to speak or understand English, the Defense reserves the right

to seek to call Dr. Van Naerssen to rebut that testimony.

CONCLUSION

WHEREFORE, for the reasons set forth aboye, Mr. Koh respectfully requests that the

Court reconsider its ruling to grant the State's Motion to Bar Introduction of Defense's

2As noted in Mr. Koh's response to the State's Motion, Dr. Van Naerssen's expert report contained two related but distinct conclusions: (1) based on her use oflanguage tests, Mr. Koh communicates at a "Low-Intermediate" level in English; and (2) based on her review of the interrogation, Mr. Koh's limited English proficiency seriously affected his ability to fully and effectively participate in the police interrogation. Mr. Koh respectfully submits that even if the Court concludes that Dr. Van Naerssen's analysis of the communications during the interrogation is inadmissible, the Court should allow testimony conceming Dr. Van Naerssen's testing ofMr. Koh's English proficiency.

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Linguistic Expert Dr. Margaret Van Naerssen.

Dated: October 5, 2012 Respectfully submitted,

By:Def~~h One of His Attorneys

T erri 1. Mascherin Andrew W. Vail Jenner & Block LLP (#05003) 353 N. Clark Street Chicago, Illinois 60654-3456 (P) (312) 222-9350

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EXHIBIT A

1 STATE OF ILLINOIS ss:

2 COUNTY OF C O O K

3 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS MUNICIPAL DEPARTMENT - SECOND MUNICIPAL DISTRICT

4 THE PEOPLE OF THE STATE OF

5 ILLINOIS, Plaintiff,

6 vs.

7 HYUNGSEOK KOH,

8 Defendant.

9

No. 09 CR 9151

10 REPORT OF PROCEEDINGS of the hearing had

11 before the Honorable GARRITT HOWARD on the 24th day

12 of August, 2012, in Skokie, Illinois.

13 APPEARANCES:

14 HON. ANITA M. ALVAREZ, State's Attorney of Cook County, by:

15 MS. MICHELE GEMSKIE and MS. VICTORIA KLEGMAN,

16 Assistant State's Attorneys, appeared on behalf of the People;

17

18

19

MS. TERRI L. MASCHERIN, MR. WADE A. THOMSON, MR. DANIEL T. FENSKE, MR. KYLE PALAZZOLO, and MR. ANDREW W. VAIL,

20 appeared on behalf of the Defendant;

21 ALSO PRESENT: Official Korean Interpreter.

22

23 AMANDA JOHNSON Official Court Reporter

24 License No. 084-004613

1

1 He will not be permitted to testify as to

2 his opinion regarding the proficiency of Police

3 Officer Kim's command of the Korean language. Such

4 testimony would not aid the jury in determining any

5 relevant issue.

6 The interviews were videotaped. The jury

7 will see and hear the questions asked and the

8 answers given. They will be given English

9 translations of the Korean word spoken by the

10 defendant and by Police Officer Kim. It will be

11 for the jury to determine what weight and

12 credibility to be given to the defendant's

13 interviews.

14 If the defendant contends that he gave a

15 certain answer or answers because he was confused

16 by the question, he may certainly do so by

17

18

testifying at trial. No one el se can do that for

him. Mr. Myong Kim cannot testify as to whether

19 the defendant gave a particular answer because he

20 was misled or confused by an inadequate Korean

21 translation, but that is what his expert opinion

22 would imply to the jury. That is not a proper use

23 of expert testimony.

24 The State's motion to limit the expert

77

1 testimony of Myong Kim is granted.

2 Next, we're dealing with the motion in

3 limine regarding the linguistics expert,

4 Dr. Margaret Van Naerssen. The State's motion to

5 bar the testimony of the linguistics expert,

6 Dr. Margaret Van Naerssen, is granted for the same

7 reasons 1 just gave regarding the Korean

8 interpreter Myong Kim. 1 find that such testimony

9 would not aid the jury in determining any relevant

10 issue.

11 The questions asked and the answers given

12 are preserved on the video. They will not change.

13 If there is a reason the defendant gave a

14 particular answer to a particular question, only

15 the defendant can explain that reason. No expert

16 witness can do that for him.

17 Dr. Van Naerssen's opinion testimony would

18 invade the province of the jury in determining the

19 credibility and weight to be given to the

20 statements made by the defendant during the course

21 of the interviews. The State's motion in limine

22 pursuant to her testimony is granted.

23 Next, we're dealing with Kenneth Moses,

24 the crime scene analysis analyst, excuse me.

78