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1 | | AN ACT concerning civil law.
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2 | | Be it enacted by the People of the State of Illinois,
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3 | | represented in the General Assembly:
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4 | | Section 5. The Code of Civil Procedure is amended by |
5 | | changing Section 2-702 as follows: |
6 | | (735 ILCS 5/2-702) |
7 | | Sec. 2-702. Petition for a certificate of innocence that |
8 | | the petitioner was innocent of all offenses for which he or she |
9 | | was incarcerated. |
10 | | (a) The General Assembly finds and declares that innocent |
11 | | persons who have been wrongly convicted of crimes in Illinois |
12 | | and subsequently imprisoned have been frustrated in seeking |
13 | | legal redress due to a variety of substantive and technical |
14 | | obstacles in the law and that such persons should have an |
15 | | available avenue to obtain a finding of innocence so that they |
16 | | may obtain relief through a petition in the Court of Claims. |
17 | | The General Assembly further finds misleading the current |
18 | | legal nomenclature which compels an innocent person to seek a |
19 | | pardon for being wrongfully incarcerated. It is the intent of |
20 | | the General Assembly that the court, in exercising its |
21 | | discretion as permitted by law regarding the weight and |
22 | | admissibility of evidence submitted pursuant to this Section, |
23 | | shall, in the interest of justice, give due consideration to |
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1 | | difficulties of proof caused by the passage of time, the death |
2 | | or unavailability of witnesses, the destruction of evidence or |
3 | | other factors not caused by such persons or those acting on |
4 | | their behalf. |
5 | | (b) Any person convicted and subsequently imprisoned for |
6 | | one or more felonies by the State of Illinois which he or she |
7 | | did not commit may, under the conditions hereinafter provided, |
8 | | file a petition for certificate of innocence in the circuit |
9 | | court of the county in which the person was convicted. The |
10 | | petition shall request a certificate of innocence finding that |
11 | | the petitioner was innocent of all offenses for which he or she |
12 | | was incarcerated. |
13 | | (c) In order to present the claim for certificate of |
14 | | innocence of an unjust conviction and imprisonment, the |
15 | | petitioner must attach to his or her petition documentation |
16 | | demonstrating that: |
17 | | (1) he or she has been convicted of one or more |
18 | | felonies by the State of Illinois and subsequently |
19 | | sentenced to a term of imprisonment, and has served all or |
20 | | any part of the sentence; and |
21 | | (2) his or her judgment of conviction was reversed or |
22 | | vacated, and the indictment or information dismissed or, |
23 | | if a new trial was ordered, either he or she was found not |
24 | | guilty at the new trial or he or she was not retried and |
25 | | the indictment or information dismissed; or the statute, |
26 | | or application thereof, on which the indictment or |
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1 | | information was based violated the Constitution of the |
2 | | United States or the State of Illinois; and |
3 | | (3) his or her claim is not time barred by the |
4 | | provisions of subsection (i) of this Section. |
5 | | (d) The petition shall state facts in sufficient detail to |
6 | | permit the court to find that the petitioner is likely to |
7 | | succeed at trial in proving that the petitioner is innocent of |
8 | | the alleged offenses for which he or she was convicted charged |
9 | | in the indictment or information or his or her acts or |
10 | | omissions for which he or she was convicted charged in the |
11 | | indictment or information did not constitute a felony or |
12 | | misdemeanor against the State of Illinois, and the petitioner |
13 | | did not by his or her own conduct voluntarily cause or bring |
14 | | about his or her conviction. The petition shall be verified by |
15 | | the petitioner. |
16 | | (e) A copy of the petition shall be served on the Attorney |
17 | | General and the State's Attorney of the county where the |
18 | | conviction was had. The Attorney General and the State's |
19 | | Attorney of the county where the conviction was had shall have |
20 | | the right to intervene as parties. |
21 | | (f) In any hearing seeking a certificate of innocence, the |
22 | | court may take judicial notice of prior sworn testimony or |
23 | | evidence admitted in the criminal proceedings related to the |
24 | | convictions which resulted in the alleged wrongful |
25 | | incarceration, if the petitioner was either represented by |
26 | | counsel at such prior proceedings or the right to counsel was |
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1 | | knowingly waived. |
2 | | (g) In order to obtain a certificate of innocence the |
3 | | petitioner must prove by a preponderance of evidence that: |
4 | | (1) the petitioner was convicted of one or more |
5 | | felonies by the State of Illinois and subsequently |
6 | | sentenced to a term of imprisonment, and has served all or |
7 | | any part of the sentence; |
8 | | (2)(A) the judgment of conviction was reversed or |
9 | | vacated, and the indictment or information dismissed or, |
10 | | if a new trial was ordered, either the petitioner was |
11 | | found not guilty at the new trial or the petitioner was not |
12 | | retried and the indictment or information dismissed; or |
13 | | (B) the statute, or application thereof, on which the |
14 | | indictment or information was based violated the |
15 | | Constitution of the United States or the State of |
16 | | Illinois; |
17 | | (3) the petitioner is innocent of the alleged offenses |
18 | | for which he or she was convicted charged in the |
19 | | indictment or information or his or her acts or omissions |
20 | | for which he or she was convicted charged in the |
21 | | indictment or information did not constitute a felony or |
22 | | misdemeanor against the State; and |
23 | | (4) the petitioner did not by his or her own conduct
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24 | | voluntarily cause or bring about his or her conviction. |
25 | | (h) If the court finds that the petitioner is entitled to a
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26 | | judgment, it shall enter a certificate of innocence finding |
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1 | | that
the petitioner was innocent of all offenses for which he |
2 | | or she was incarcerated. Upon entry of the certificate of |
3 | | innocence or pardon from the Governor stating that such pardon |
4 | | was issued on the ground of innocence of the crime for which he |
5 | | or she was imprisoned, (1) the clerk of the court shall |
6 | | transmit a copy of the certificate of innocence to the clerk of |
7 | | the Court of Claims, together with the claimant's current |
8 | | address; and (2) the court shall enter an order expunging the |
9 | | record of arrest from the
official records of the
arresting |
10 | | authority and order that the records of the clerk of the |
11 | | circuit
court and the Illinois State Police be sealed until |
12 | | further order of the court upon good cause shown
or as |
13 | | otherwise provided
herein, and the name of the defendant |
14 | | obliterated from the official index
requested to be kept by |
15 | | the
circuit court clerk under Section 16 of the Clerks of |
16 | | Courts Act in connection
with the arrest and
conviction for |
17 | | the offense but the order shall not affect any index issued by
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18 | | the circuit court clerk before the entry of the order. The |
19 | | court shall enter the expungement order regardless of whether |
20 | | the petitioner has prior criminal convictions. |
21 | | All records sealed by the Illinois State Police may be
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22 | | disseminated by the Department only as required by law or to |
23 | | the arresting
authority, the State's Attorney, the court upon |
24 | | a later arrest for the same or
similar offense, or for the |
25 | | purpose of sentencing for any subsequent felony.
Upon |
26 | | conviction for any subsequent offense, the Department of |
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1 | | Corrections shall
have access to all sealed records of the |
2 | | Department
pertaining to that individual. |
3 | | Upon entry of the order of expungement, the clerk of the |
4 | | circuit court shall
promptly mail a copy of the order to the |
5 | | person whose records were expunged and
sealed. |
6 | | (i) Any person seeking a certificate of innocence under |
7 | | this
Section based on the dismissal of an indictment or |
8 | | information
or acquittal that occurred before the effective |
9 | | date of this
amendatory Act of the 95th General Assembly shall |
10 | | file his or
her petition within 2 years after the effective |
11 | | date of this
amendatory Act of the 95th General Assembly. Any |
12 | | person seeking
a certificate of innocence under this Section |
13 | | based on the
dismissal of an indictment or information or |
14 | | acquittal that
occurred on or after the effective date of this |
15 | | amendatory Act
of the 95th General Assembly shall file his or |
16 | | her petition
within 2 years after the dismissal. |
17 | | (j) The decision to grant or deny a certificate of |
18 | | innocence shall be binding only with respect to claims filed |
19 | | in the Court of Claims and shall not have a res judicata effect |
20 | | on any other proceedings. |
21 | | (k) The changes to this Section made by this amendatory |
22 | | Act of the 103rd General Assembly apply to petitions filed on |
23 | | and after September 22, 2008.
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24 | | (Source: P.A. 102-538, eff. 8-20-21.)
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