People v. Butler: Availability for Cross‑Examination, Not In‑Court Accusation, Satisfies §115‑10 and the Confrontation Clause

I. Introduction

In People v. Butler, 2025 IL 130988 (Ill. Nov. 20, 2025), the Illinois Supreme Court confronted a recurring and difficult problem in child sexual assault prosecutions: what happens when a child, who has previously given a detailed recorded account of sexual abuse, later takes the stand but refuses to repeat the allegations, claims not to remember them, or even denies that the abuse occurred?

The case arises from the conviction of Sidney Butler for multiple sexual offenses against his younger half‑sister, K.P., based primarily on a forensic, video‑recorded “victim‑sensitive” interview conducted when K.P. was nine. By the time of trial, at age thirteen, K.P. was a reluctant witness. She identified Butler and acknowledged that she had talked about him during the earlier interview, but she largely claimed not to remember the sexual abuse or her prior allegations.

The central legal questions were:

Whether K.P. had “testifie[d] at the proceeding” within the meaning of section 115‑10(b)(2)(A) of the Illinois Code of Criminal Procedure, a statute that allows admission of certain child hearsay statements if the child testifies; and
Whether Butler’s state and federal confrontation rights were violated when the trial court admitted the recorded interview even though K.P. did not repeat or affirm the prior accusations at trial.

In a detailed opinion by Justice Overstreet, the court held that both the statutory requirement and the constitutional confrontation guarantees were satisfied. The court explicitly overruled the Second District’s contrary decision in People v. Learn, 396 Ill. App. 3d 891 (2009), and clarified earlier Illinois Supreme Court dicta in People v. Kitch, 239 Ill. 2d 452 (2011). This decision significantly reshapes the law governing child hearsay in Illinois and aligns state doctrine more tightly with United States Supreme Court precedent such as Crawford v. Washington, Delaware v. Fensterer, and United States v. Owens.

II. Background of the Case

A. Charges and Pretrial Proceedings

Butler was indicted in Cook County on ten counts relating to sexual abuse of K.P., his younger half‑sister. Relevant surviving counts at sentencing included:

Predatory criminal sexual assault of a child under 13 (720 ILCS 5/11‑1.40(a)(1));
Aggravated criminal sexual assault of a victim under 9 (id. § 11‑1.30(b)(i)); and
Aggravated criminal sexual abuse of a victim under 9 by a person under 17 (id. § 11‑1.60(c)(2)(i)).

Before trial, the State moved under section 115‑10 of the Code of Criminal Procedure (725 ILCS 5/115‑10) to admit K.P.’s November 2014 video‑recorded interview at the Chicago Children’s Advocacy Center. At that time, K.P. was nine years old. The interview was conducted by forensic interviewer Alison Alstott using a recognized non‑suggestive protocol.

In the interview, K.P. described Butler’s repeated sexual abuse, including:

Butler making her “suck his private part”; and
Butler “put[ting] his private part in [her] butt,” more than five times, beginning when she was around four.

She provided age‑inappropriate sexual detail, including descriptions of Butler’s genitalia and the physical sensations.

Defense counsel, however, emphasized another set of facts: a few days before the interview, K.P. had been brutally beaten by her mother’s boyfriend, Roland Pierce, after allegations that K.P. had engaged in sexual behavior with his younger daughter. Pierce’s handwritten statement (admitted at the 115‑10 hearing by stipulation) described a savage beating with belt, boots, and extension cord and forcing K.P. to sleep on a cold basement floor without food. The defense argued that K.P.’s subsequent statements were coerced or contaminated by this trauma and thus unreliable.

After a protracted reliability hearing (2017–2018), the circuit court found that the “time, content, and circumstances” of K.P.’s statements provided “sufficient safeguards of reliability” and ruled that the video would be admissible at trial if K.P. testified.

B. Trial and K.P.’s Testimony

At the March 2019 jury trial, the State candidly told the jury that it did not know how K.P. would testify and that jurors would see both her live testimony and the 2014 recorded statement. Defense counsel again stressed the alleged coercive context: Pierce’s “vicious beating” immediately preceding the interview.

When first called, K.P. (then 13) answered some preliminary questions but became nonresponsive when asked about her siblings. The jury was excused, and, after a recess and judicial admonitions, the State recalled her and was allowed to use leading questions, treating her as a hostile witness.

On direct examination (after the recall and admonitions), K.P.:

Testified that she had lived in the prior house with her mother, siblings, and Butler, and identified Butler in court.
Recognized and authenticated a still image from the recorded interview and remembered talking to Alstott at age nine.
Explained that the interview related to “household issues” with Pierce, who had physically hurt her, leading to a hospital visit.
Affirmed that, in that interview, she had talked about “anything else that anybody else did to you,” identified Butler as one of those people, and said, “I remember bringing up his name.”

However, when the State questioned her about the specific sexual abuse she had described in the interview, she responded repeatedly that she did not remember:

She said she did not remember Butler ever “touch[ing] on” her.
She denied remembering that he made her suck his private part or put his private part in “the line” of her butt, or that it hurt.
She said she did not remember saying that this happened more than five times.
She testified that Pierce abused her physically but not sexually.

On cross-examination, defense counsel did not ask about the substance of K.P.’s sex-abuse allegations. Instead, counsel focused almost entirely on Pierce’s beating: K.P. testified that Pierce whipped her with a belt, extension cord, boots, and a video game console; forced her to sleep in the basement without food; and that she was still in pain from these injuries at the time of the interview. This aligned squarely with the defense theory that the interview statements were the product of trauma and pressure, not reliable memory.

After Alstott authenticated the interview and described the protocol, the State sought to publish the video to the jury. The defense objected, arguing that K.P. had “not testified adequately to allow the video to be played” because she:

Did not accuse Butler on the stand;
Did not remember her earlier accusations; and
Did not recall Butler committing the alleged offenses.

The trial court overruled the objection and allowed the interview to be played. The jury convicted Butler on seven counts. After merging and vacating duplicative counts, the court imposed consecutive sentences totaling 21 years.

C. Appellate Court and Issues on Further Review

On appeal, Butler argued that:

The video interview was the only substantive evidence against him;
The interview did not satisfy section 115‑10 because K.P. did not “testify” within the meaning of the statute; and
The admission of the interview violated his Sixth Amendment and Illinois confrontation rights, because K.P. did not accuse him at trial and allegedly was not meaningfully available for cross-examination.

The First District affirmed, holding that:

The “testimony requirement” of section 115‑10 requires no more than the witness’s availability for cross-examination—the same standard as the confrontation clause; and
A witness is “available” for cross-examination if present in court and answers all questions defense counsel chooses to ask, regardless of whether the witness repeats the prior accusations.

The appellate court distinguished People v. Learn, where the Second District had held that a child who did not accuse the defendant at trial had not “testified” for section 115‑10 purposes. The First District suggested that Learn no longer reflected the state of Illinois law.

The Illinois Supreme Court granted leave to appeal to resolve these questions of statutory interpretation and constitutional law.

III. Summary of the Illinois Supreme Court’s Decision

The Supreme Court affirmed Butler’s convictions and, in doing so, established several key principles:

“Testifies” under section 115‑10(b)(2)(A) means appearing as a witness under oath and answering questions, not necessarily repeating or affirming the prior accusations.
K.P. “testified” by identifying Butler, acknowledging the interview, and answering substantive questions—even though most of her answers about the abuse and the prior statement were “I don’t remember” or denials.
For both section 115‑10 and the confrontation clause, the critical requirement is availability for cross-examination, not in‑court accusation or detailed recall.
If the witness is on the stand, under oath, and “responds willingly to questions,” she is “subject to cross‑examination” within the meaning of the Sixth Amendment and the Illinois Constitution.
The court expressly overruled People v. Learn.
The Second District had erroneously added a requirement that a child “testify and accuse” the defendant at trial in order to trigger section 115‑10. Butler rejects that reading as inconsistent with both statutory text and confrontation jurisprudence.
To the extent People v. Kitch could be read to require a certain level of detail or non‑evasive testimony to satisfy the confrontation clause, that suggestion is disapproved.
The court emphasized that the confrontation clause does not guarantee that witnesses will be free of forgetfulness, confusion, or evasion; it guarantees only an opportunity for cross-examination.
K.P. was neither “unavailable” under section 115‑10(b)(2)(B) nor unavailable under the confrontation clauses.
Cases like In re Brandon P. and In re Rolandis G., where child witnesses completely froze or refused to answer substantive questions, were distinguished.
Because K.P. testified and was available for cross-examination, Butler’s confrontation rights were not violated by admission of the victim-sensitive interview, even though the interview was “testimonial” under Crawford.

IV. Detailed Analysis

A. Precedents Cited and Their Influence

1. Illinois Child-Hearsay and Confrontation Cases

People v. Bowen, 183 Ill. 2d 103 (1998)

Bowen explained that section 115‑10 was a legislative response to the difficulty of prosecuting child sexual assault cases. Children often cannot give full, coherent in‑court accounts due to age, trauma, or delay. Bowen also stressed that the statute’s requirement that the child actually “testify” (rather than merely be “available”) is designed to prevent a “Catch‑22” in which the State could choose not to call the child and force the defense either to call the child itself (risking jury hostility) or forgo cross-examination.

Butler embraces this structural protection: the State must call the child and place her under oath. But the court rejects any additional notion that the child must repeat the accusations in order to satisfy section 115‑10.
People v. Cookson, 215 Ill. 2d 194 (2005)

Cookson held that section 115‑10(b)(2)(A)’s requirement that the child testify “comports with the sixth amendment’s confrontation requirement.” Butler builds on that alignment and articulates that the statute’s “testifies” requirement and the constitutional “subject to cross-examination” standard are, in practice, the same.
People v. Kitch, 239 Ill. 2d 452 (2011)

In Kitch, the court upheld the use of child hearsay under section 115‑10, noting that the children’s in‑court testimony “provided enough detail to allow for cross-examination” and that they answered questions “forthright[ly].” In Butler, the court clarifies that any implication from Kitch that “detail” or non‑evasiveness is a constitutional requirement is incorrect. Under federal law, a witness’s forgetfulness or evasiveness does not negate confrontation so long as the defense had a fair chance to cross‑examine.
In re E.H., 224 Ill. 2d 172 (2006)

E.H. emphasized a two‑step framework: first, decide whether a hearsay statement is admissible under statutory rules (like section 115‑10); second, assess whether its admission violates the confrontation clause. Butler follows this sequencing: it first interprets section 115‑10’s “testifies” requirement, then separately analyzes the confrontation problem under Crawford and its progeny.
In re Brandon P., 2014 IL 116653

The preschool‑aged victim in Brandon P. “completely froze” when substantive questions began and could barely answer even preliminary questions. The State conceded, and the court agreed, that she was unavailable for section 115‑10 purposes and for confrontation analysis. Butler distinguishes Brandon P. as a case of genuine inability to testify: the child never reached the point of answering substantive questions about the allegations.
In re Rolandis G., 232 Ill. 2d 13 (2008)

In Rolandis G., a child witness answered some introductory questions and identified the respondent, but “resolutely refused to respond” to any substantive questions about the abuse. The State again conceded unavailability. The court thus held that admission of a testimonial videotaped interview violated confrontation rights (though the error was harmless). Butler distinguishes Rolandis G. on similar grounds: K.P. did not refuse to answer; she testified, denied or failed to recall the prior allegations, and answered cross‑examination questions.
People v. Flores, 128 Ill. 2d 66 (1989)

Flores, drawing on federal precedent, held that the confrontation clause is satisfied when a witness whose prior statement is offered is placed under oath, takes the stand, and responds to questions—even if he claims not to remember making the prior statement. Butler relies on this principle to hold that K.P.’s lack of recall does not defeat confrontation.

2. U.S. Supreme Court Confrontation Jurisprudence

Crawford v. Washington, 541 U.S. 36 (2004)

Crawford revolutionized confrontation doctrine by holding that “testimonial” statements of a witness who does not testify at trial are inadmissible unless the witness is unavailable and the defendant had a prior opportunity to cross-examine. However, Crawford also stated (in footnote 9) that:

“when the declarant appears for cross‑examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”

Butler embraces this point: because K.P. appeared and was subject to cross-examination, her prior testimonial interview could be used. Butler also rejects the defense’s attempt to read Crawford’s phrase that the clause does not bar a statement “so long as the declarant is present at trial to defend or explain it” as imposing a substantive requirement that the witness actually defend or explain the prior statement. In context, Butler holds, that phrase is simply synonymous with being subject to cross-examination.
California v. Green, 399 U.S. 149 (1970)

Green explained why confrontation is satisfied when a declarant testifies and is cross‑examined: the witness is under oath, subject to penalty of perjury, and observable by the jury, and must “affirm, deny or qualify” the prior statement. Butler quotes Green to support the idea that even denial or lack of recall allows the factfinder to decide which version, if any, is true.
Delaware v. Fensterer, 474 U.S. 15 (1985) (per curiam)

Fensterer held that the confrontation clause is not violated merely because an expert witness cannot recall the basis for his opinion. The key statement, heavily relied on in Butler, is:

“Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross‑examination, not cross‑examination that is effective in whatever way, and to whatever extent, the defense might wish.”

Butler uses this to reject the idea that K.P.’s poor memory or evasive answers made cross‑examination “meaningless” or constitutionally inadequate.
United States v. Owens, 484 U.S. 554 (1988)

Owens upheld admission of a prior identification by a victim who, due to severe head injury, remembered making the identification but could not recall the basis for it or the attack itself. The Court held that a witness is “subject to cross‑examination” when he is placed on the stand, under oath, and “responds willingly to questions,” even if he has “a faulty memory.” Butler directly adopts this definition: K.P. was subject to cross-examination despite her claimed memory loss.
Davis v. Alaska, 415 U.S. 308 (1974)

Davis underscored that the “main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” Butler invokes Davis to emphasize that the right is about opportunity, not outcome.
Smith v. Arizona, 602 U.S. 779 (2024)

Smith is cited for the general proposition that the confrontation clause “protects a defendant’s right of cross-examination by limiting the prosecution’s ability to introduce statements made by people not in the courtroom.” Butler situates its analysis within this modern framework but stresses that once the declarant is in the courtroom and testifying, the clause does not restrict use of their prior testimonial statements.

3. Lower Illinois Appellate Authority and Overruling of People v. Learn

People v. Learn, 396 Ill. App. 3d 891 (2d Dist. 2009)

Learn had held that a child’s presence to answer general questions, without testifying about the alleged offense or accusing the defendant, was insufficient to qualify as “testimony” under section 115‑10 and also insufficient to satisfy confrontation. The Second District read Crawford’s “defend or explain” language as requiring that the child actively defend or explain the prior accusations at trial.

Butler rejects Learn on two fronts:
- Factually: Learn involved a child who, essentially like the child in Rolandis G., became emotionally overwhelmed and would not answer substantive questions about the abuse.
- Legally: Learn misread Crawford and grafted an extra “accuse at trial” requirement onto section 115‑10 and the confrontation clause. Butler explicitly overrules Learn and notes that numerous Illinois appellate decisions had already criticized or distinguished it.
Other appellate decisions: Martin, Bryant, Dabney, Lara, Kennebrew, etc.

Butler aligns itself with a long line of appellate decisions holding that:
- A witness’s failure to remember past events does not amount to unavailability if the witness appears and answers questions (People v. Martin, 408 Ill. App. 3d 891).
- Confrontation is satisfied when the child is present, under oath, and answers questions—even if the only substantive evidence of certain counts comes from hearsay (People v. Bryant, 391 Ill. App. 3d 1072).
- A child need not testify to every element of the offense for their section 115‑10 statements to be admissible (People v. Lara, 2011 IL App (4th) 080983‑B).
- Defense counsel may tactically choose not to cross-examine about prior statements; that choice does not retroactively make the witness “unavailable” (People v. Dabney, 2017 IL App (3d) 140915).
Justice Schostok’s special concurrence in People v. Kennebrew, 2014 IL App (2d) 121169, is quoted approvingly in substance: cross‑examination is not limited to “defending or explaining” prior statements; denial of having made them or professed forgetfulness can itself be valuable impeachment.

B. The Court’s Legal Reasoning

1. Statutory Interpretation: What Does It Mean to “Testify” Under §115‑10(b)(2)(A)?

Section 115‑10(a) creates a hearsay exception for certain out‑of‑court statements by a child under 13 describing sexual or physical abuse. Subsection (b) adds two admissibility conditions:

The trial court must find, after a hearing, that the “time, content, and circumstances” of the statement provide sufficient safeguards of reliability; and
The child either:
- (A) “testifies at the proceeding”; or
- (B) is “unavailable as a witness” and the statement is corroborated.

In Butler, reliability under subsection (b)(1) was not at issue in the Supreme Court. The fight was over (b)(2)(A): Did K.P. “testif[y] at the proceeding”?

The court began with ordinary meaning. Citing Black’s Law Dictionary, it defined “testify” as “to give evidence as a witness.” It then carefully catalogued what K.P. actually did on the stand:

Identified herself, her age, and family members;
Identified Butler in court as her brother and described living with him;
Authenticated the still image from the interview, remembered speaking with Alstott, and recalled that she was nine at the time;
Explained that the interview related to Pierce’s abuse and her hospital visit;
Affirmed that she spoke in the interview about “something else that somebody else did” to her and that she “brought up” Butler’s name; and
On cross-examination, gave detailed testimony about Pierce’s beating and her physical condition during the interview.

Although K.P. repeatedly stated “I don’t know” or “I don’t remember” regarding the sexual acts and her prior descriptions, she nonetheless:

Took the stand under oath;
Answered questions on both direct and cross-examination; and
Provided evidence—particularly about Pierce’s abuse—which defense counsel used to support the theory that the prior statements were unreliable.

This, the court held, is sufficient to qualify as “testif[ying] at the proceeding.” Section 115‑10 does not demand that the child repeat the allegations or provide detailed accusatory testimony. It demands that the child be produced, sworn, and examined as a witness, giving some evidence from which the factfinder can evaluate credibility.

By contrast, cases like Brandon P., Rolandis G., and Learn (on its own facts) involved children who effectively never reached this point: they froze or refused to answer substantive questions. In such circumstances, the child may be legally “unavailable.”

2. Confrontation Clause Analysis

Having found the statutory requirement satisfied, the court turned to the constitutional question: Did admitting K.P.’s testimonial interview violate Butler’s confrontation rights?

No one disputed that the interview was “testimonial” within the meaning of Crawford. The interview was conducted by a forensic interviewer, observed by a detective and DCFS worker, and primarily aimed at gathering evidence of possible abuse for prosecution, not medical treatment.

Under Crawford, testimonial statements of a witness who does not testify at trial are barred unless the witness is unavailable and was previously subject to cross-examination. But Crawford also held that:

“when the declarant appears for cross‑examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”

The defense tried to use a different Crawford phrase to argue the opposite: that the clause “does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” Butler rejected the contention that this phrase creates a separate requirement that the witness actually defend or explain the prior statement. Instead, the phrase is shorthand for being subject to cross‑examination.

Relying heavily on Fensterer, Owens, and Flores, the court emphasized several points:

The confrontation clause is a procedural guarantee. It does not guarantee that the evidence will be reliable; it requires that reliability be tested “in the crucible of cross‑examination.”
The clause guarantees an opportunity for effective cross‑examination, not cross-examination that succeeds in whatever way the defense wishes.
Witness forgetfulness, confusion, or even evasion does not by itself violate confrontation. Indeed, causing a witness to admit memory problems or inconsistencies is often the very object of cross-examination.
A witness is “subject to cross-examination” when placed on the stand, under oath, and willing to answer questions, even if the answer to many questions is “I don’t remember.”

K.P. met this standard. She:

Appeared before the jury;
Testified under oath;
Answered both direct- and cross-examination questions; and
Gave testimony that the defense could, and did, use to challenge the reliability of the prior statement (e.g., describing Pierce’s beating and her pain during the interview).

The court also rejected the suggestion that cross‑examination was “hampered” or “meaningless” because K.P. denied or did not remember the prior statements. Defense counsel chose not to ask her about the substance of the prior interview; that strategic choice could not transform an available witness into an unavailable one, nor convert a fair opportunity for cross‑examination into a constitutional violation.

3. Distinguishing “Unavailability” Cases

Butler carefully cabined cases where children were deemed unavailable:

Brandon P.: a preschooler who “completely froze” and could not answer questions beyond preliminary inquiries. All participants (judge, defense, prosecution) agreed she was unable to testify.
Rolandis G.: the child answered only introductory, non‑substantive questions and “resolutely refused” to answer anything about the events, leading the State to concede unavailability.
Learn (on its facts): a child who, after minimal testimony, became too emotionally distressed to answer substantive questions about the alleged abuse.

In each, the witness failed even to engage with substantive questioning about the incident. By contrast, K.P. did engage: she acknowledged prior discussions of Butler, gave substantive evidence about Pierce’s abuse and her injuries, and willingly answered questions. Her claimed lack of memory and denials affected credibility and weight, not admissibility or constitutional adequacy.

C. Impact and Future Implications

1. For Child Sexual Assault Prosecutions

Butler is a powerful tool for prosecutors in child sexual abuse cases. It confirms that:

Early, carefully conducted forensic interviews may remain admissible at trial even if the child later recants, becomes reluctant, or claims not to remember.
The State’s obligations under section 115‑10 are:
- To secure a pretrial finding of reliability; and
- To call the child to testify, under oath, making them available for cross-examination.
There is no requirement that the child, at trial, repeat the allegations or provide detail sufficient, standing alone, to prove each element of the offense.

As a result, the risk that a reluctant or intimidated child witness will “sink” a prosecution by failing to reaffirm prior detailed statements is substantially reduced, provided the child does not totally shut down or refuse to answer questions.

2. For Defense Strategy and Cross‑Examination

From a defense perspective, Butler has several strategic consequences:

Pretrial focus shifts even more sharply to the section 115‑10 reliability hearing.
Once the trial judge finds the statements reliable and the child later gives any meaningful testimony at trial, it will be very difficult to exclude the prior recorded statement on confrontation grounds.
Tactical choices at trial will not create constitutional error.
If defense counsel decides not to question the child about prior inconsistencies or the substance of the hearsay—perhaps to avoid emotionally charged exchanges—the Supreme Court will not treat that as a denial of confrontation. The opportunity, not its use, is what matters.
Memory issues become fodder for impeachment, not exclusion.
Counsel must be prepared to exploit memory lapses, denials, or inconsistencies to attack the credibility of both the child and the prior statement, rather than relying on them as a basis to exclude the statement altogether.
Alternative constitutional theories may grow in importance.
With the confrontation argument narrowed, defense counsel may increasingly turn to due process or fundamental fairness arguments—especially where there is strong evidence of coercion, such as the severe beating in Butler—to argue that, reliability aside, the probative value of the hearsay is outweighed by its prejudicial effect.

3. For Trial Judges

Trial courts now have clearer guidance on classifying child witnesses as “available” or “unavailable”:

If the child appears, is sworn, and answers questions—even with “I don’t know” or “I don’t remember”—the witness is generally available for both section 115‑10 and confrontation purposes.
If the child is so young, frightened, traumatized, or distressed that they cannot answer substantive questions at all (as in Brandon P. and Rolandis G.), the child may be treated as unavailable, triggering the corroboration requirement of section 115‑10(b)(2)(B) and stricter confrontation scrutiny.

Judges must still:

Conduct rigorous reliability analyses at the 115‑10 hearing;
Monitor for improper attempts to influence the child’s testimony (such as signaling from family members, which occurred during K.P.’s testimony and drew judicial admonitions); and
Ensure that defense counsel has a genuine opportunity to cross-examine the child on all relevant topics, including prior statements and memory issues.

4. Doctrinal Realignment and Overruling of Learn

Butler’s explicit overruling of Learn has important doctrinal consequences:

It restores harmony between Illinois law and federal confrontation jurisprudence (Crawford, Fensterer, Owens).
It eliminates the unique and more stringent “testify and accuse” gloss that Learn had placed on section 115‑10.
It confirms that the statutory “testifies” requirement and the constitutional “subject to cross-examination” standard are functionally coextensive.

To the extent any lower-court opinions suggested that detailed, non‑evasive, accusatory testimony is a prerequisite to admitting prior testimonial statements, Butler rejects that approach. The measuring stick is procedural—was the defense afforded a fair opportunity to question?—not substantive.

5. Policy Tensions

Although Butler is doctrinally well‑anchored in United States Supreme Court precedent, it highlights a policy tension:

On one hand, the decision protects child victims by accommodating their developmental limits, trauma, and reluctance to publicly recount abuse—precisely the concerns that prompted the legislature to enact section 115‑10.
On the other hand, it increases the likelihood that juries will convict based primarily on out‑of‑court statements that are not meaningfully probed in live testimony, particularly where the child is hostile or has been influenced by family dynamics.

The court essentially answers this concern by re‑emphasizing that reliability determinations at the 115‑10 hearing and the adversarial process of cross-examination are the proper tools to safeguard against wrongful convictions—not a heightened confrontation rule requiring in‑court accusatory testimony.

V. Complex Concepts Simplified

1. Hearsay and the Child-Hearsay Exception (§115‑10)

Hearsay is an out‑of‑court statement offered in court to prove the truth of what it asserts (e.g., “He touched me” said outside court, offered to prove that he did). Normally, hearsay is inadmissible because the speaker cannot be cross-examined.

Section 115‑10 is a special hearsay rule in Illinois that allows certain statements by children under 13 describing sexual or physical abuse to be admitted even if made out of court, if:

The judge holds a pretrial hearing and finds that the timing, content, and circumstances of the statement make it reliable; and
The child either:
- Testifies at trial; or
- Is unavailable to testify, and there is other evidence corroborating the abuse.

In Butler, the reliability of the interview was found at the pretrial hearing. The dispute was about whether K.P. “testified” and whether she was “available” for confrontation purposes despite her claimed memory loss.

2. The Confrontation Clause

The Confrontation Clause in the U.S. and Illinois Constitutions gives a criminal defendant the right to “be confronted with the witnesses against” him. This means:

The prosecution generally cannot prove its case with affidavits, statements to police, or other ex parte materials by absent witnesses;
If a witness’s out‑of‑court statement is “testimonial” (e.g., a formal police interview), the witness must either:
- Testify at trial and be subject to cross-examination; or
- Be shown unavailable, with the defendant having had a prior opportunity to cross-examine.

In Butler, the court held that once K.P. took the stand under oath and answered questions, she was “subject to cross-examination,” so the confrontation clause placed “no constraints at all” on using her prior testimonial interview.

3. “Available” vs. “Unavailable” Witness

A witness is generally considered available if they:

Appear in court;
Are sworn to tell the truth; and
Answer the questions put to them (even if the answer is “I don’t remember”).

A witness may be deemed unavailable if they:

Are physically or mentally unable to testify;
Refuse to answer any substantive questions; or
Cannot be brought to court despite diligent efforts.

In the child‑witness context, “freezing,” crying uncontrollably, or refusing to speak about the events at issue can amount to unavailability (as in Brandon P. and Rolandis G.). In Butler, K.P. was not unavailable: she answered questions, albeit with denials and claimed lack of memory.

4. Prior Inconsistent Statements and Memory Lapses

A prior inconsistent statement occurs when a witness says one thing out of court and something different in court. Illinois law often allows such statements—if made under certain conditions—to be used not only to impeach credibility but also as substantive evidence.

A witness’s forgetfulness about a prior statement does not prevent the statement from being used or cross-examined. As the U.S. Supreme Court recognizes, getting a witness to admit that they do not remember or that they deny the prior statement can itself be an effective form of impeachment, and the confrontation clause is satisfied so long as the witness is present and answers questions.

VI. Conclusion

People v. Butler significantly clarifies Illinois law at the intersection of child-hearsay statutes and the confrontation clause. The decision establishes that:

Section 115‑10’s requirement that the child “testif[y] at the proceeding” is met when the child appears under oath and answers questions; there is no additional requirement that the child accuse the defendant at trial or recite the prior allegations.
A child witness who takes the stand, is sworn, and responds (even with “I don’t remember”) is “available for cross-examination” for both statutory and constitutional purposes.
Consequently, prior testimonial statements from properly conducted forensic interviews may be admitted under section 115‑10 so long as reliability is established and the child so testifies.
People v. Learn is overruled, and any suggestion that detailed, non‑evasive, in‑court accusations are necessary for confrontation is rejected.

The ruling firmly aligns Illinois with United States Supreme Court cases like Crawford, Fensterer, and Owens, emphasizing that confrontation is a procedural guarantee of the opportunity for cross-examination, not a substantive guarantee that witnesses will remember, repeat, or stand by their prior accusations. It will likely make it easier to secure convictions in child sexual assault cases where children are reluctant or recant, while placing heightened importance on the integrity of the initial forensic interview and the robustness of cross-examination at trial.

Note: This commentary is for educational and informational purposes and does not constitute legal advice.