Is a Jury Instruction to Consider the Victim's Age Allowed ?
In People v. Booker, 224 Ill. App. 3d 542, 585 N.E.2d 1274, 166 Ill. Dec. 252 (1992), counsel for the State and for the defendant agreed that the trial court should not tender an instruction based on section 115--10(c), and the trial court thus did not tender one.
It did, however, tender a general instruction on witness credibility, based on the existing version of the Illinois Pattern Jury Instructions. Booker, 224 Ill. App. 3d at 555, citing Illinois Pattern Jury Instructions, Criminal, No. 1.02 (2d ed. 1981).
On appeal, the defendant in Booker argued that the failure to tender the section 115--10(c) instruction constituted plain error, because, even with the general instruction, the jury was not "told to consider the victim's age and maturity and the circumstances under which the statements were made." Booker, 224 Ill. App. 3d at 556.
The court in Booker disagreed that the failure to tender the instruction amounted to plain error:
"The standard instruction given advised the jurors to consider the witnesses' ability and opportunity to observe.
This impliedly advised them to consider the victim's age.
In addition, the jury was told it could consider the witnesses' memory.
Although the specific instruction required by section 115--10(c) of the Code was not given, the error was harmless and not subject to the plain error rule because defendant was not denied any substantial right." Booker, 224 Ill. App. 3d at 556.