Rev. Stat. 1987, ch. 95 1/2, par. 11-401), one of the elements of the offense that must be shown by the State is that the accused had knowledge that the vehicle he was driving was involved in a collision. People v. Nunn (1979), 77 Ill.2d 243, 252, 396 N.E.2d 27; People v. Martinez (1983), 120 Ill. App.3d 305, 311, 458 N.E.2d 104; see also Ill. Rev. Stat. 1987, ch. 38, par. 4-3. • 4 Ordinarily, the failure to allege the requisite mental state fatally flaws a criminal prosecution.
Given that "[t]he actual pendency of civil litigation is relevant as tending to show the bias or interest of a witness," courts have held the existence of such suits "is thus a proper subject matter of cross-examination." People v. Martinez, 120 Ill.App.3d 305, 308 (1983); see also People v. Crosser, 117 Ill.App.3d 24, 29 (1983) ("Bias, in the form of hostility toward a party, may be shown by the fact that the witness has a lawsuit pending against that party"). ¶ 41 Here, prior to trial, the State filed a motion in limine seeking the court's permission to introduce evidence that defendant filed a civil rights lawsuit against Cook County and Deputies Mack and Matthews-McCallister in the event that defendant chose to testify.
( People v. Brouder (1988), 168 Ill. App.3d 938, 523 N.E.2d 100.) Cross-examination for purposes of impeaching a witness as to his interest, bias, or motive is a matter of right and is subject only to the trial court's discretion to preclude repetitive or unduly harassing questioning. ( People v. Martinez (1983), 120 Ill. App.3d 305, 458 N.E.2d 104; see also People v. Brouder, 168 Ill. App.3d 938, 523 N.E.2d 100.) Although the trial court has no discretion to prohibit such impeachment entirely, it can control the extent of the cross-examination, assuming a proper subject matter. ( People v. Martinez, 120 Ill. App.3d 305, 458 N.E.2d 104.) "[E]vidence showing bias must be direct and positive, not remote and uncertain."
See State v. Underwood (1979), 281 N.W.2d 337; State v. Ferguson (1983), 450 N.E.2d 265; Wooten v. State (1985), 464 So.2d 640. The minority view holds that precluding a defendant from cross-examining a witness about a contemplated civil action does not deny the defendant's right to impeach a witness by showing interest, motive or bias because potential litigation is speculative and uncertain. See People v. Martinez (1983), 458 N.E.2d 104 and People v. Bradford (1979), 397 N.E.2d 863. This is an issue of first impression in Montana and a careful review of case law from other jurisdictions has convinced us that the majority view is the correct approach.
The actual pendency of civil litigation is generally a proper subject matter for cross-examination, however, potential litigation, which is indefinite and questionable, has little probative value of bias. People v. Martinez, 120 Ill. App. 3d 305, 308 (1993). We find nothing to suggest that a claim filed with an insurance company equates to civil litigation.
¶ 100 We find no ineffective assistance of trial counsel. People. v. Martinez, 120 Ill. App. 3d 305 (1983), is controlling. In Martinez, defendant, Fidel Martinez, argued on appeal that the trial court erred by prohibiting him from cross-examining a witness as to whether he contemplated filing a civil action against defendant.
¶ 96 As the State notes, "[t]he actual pendency of civil litigation is relevant as tending to show the bias or interest of a witness, and thus is a proper subject matter of cross-examination." People v. Martinez, 120 Ill. App. 3d 305, 308, 458 N.E.2d 104, 108 (1983). However, where the defendant seeks to impeach based upon potential litigation, the bias "is so indefinite and questionable as to have little probative value."
Otherwise, a callous person might make immediate flight from the accident scene to avoid learning whether injuries were sustained and how severe any such injuries were. See People v. Martinez, 120 Ill.App.3d 305, 313, 75 Ill.Dec. 936, 458 N.E.2d 104, 112 (1983); State v. Wall, supra, 206 Kan. at 764, 482 P.2d at 44. Further, that a culpable mental state may be implied in a statute does not mandate that such a mental state be applied to all elements of the statute.
The prosecution was not required to show that McCracken knew that he had injured Cipich; rather, it was only required to prove that he knew that his car was involved in a collision. See People v. Nunn (1979), 77 Ill.2d 243, 252, 396 N.E.2d 27, 31; People v. Martinez (1983), 120 Ill. App.3d 305, 311, 458 N.E.2d 104, 110. • 5 In a bench trial, it is the trial court's province to determine the credibility and weight of the testimony, and to resolve the inconsistencies and conflicts therein.
( People v. Hunter (1984), 124 Ill. App.3d 516, 538, 464 N.E.2d 659.) Cross-examination may be used to show a witness' interest, bias, or motive and is subject only to the trial court's discretion to preclude repetitive or unduly harassing questioning. ( People v. Adams (1967), 36 Ill.2d 492, 497, 224 N.E.2d 252; People v. Martinez (1983), 120 Ill. App.3d 305, 308, 458 N.E.2d 104; People v. Phillips (1981), 95 Ill. App.3d 1013, 1020, 420 N.E.2d 837.) Moreover, evidence showing bias must be direct and positive, not remote and uncertain.