Sen. Don Harmon

Filed: 3/9/2005

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 72

2     AMENDMENT NO. ______. Amend Senate Bill 72 by replacing
3 everything after the enacting clause with the following:
 
4     "Section 5. The Juvenile Court Act of 1987 is amended by
5 changing Section 5-401.5 as follows:
 
6     (705 ILCS 405/5-401.5)
7     (This Section may contain text from a Public Act with a
8 delayed effective date)
9     Sec. 5-401.5. When statements by minor may be used.
10     (a) In this Section, "custodial interrogation" means any
11 interrogation (i) during which a reasonable person in the
12 subject's position would consider himself or herself to be in
13 custody and (ii) during which a question is asked that is
14 reasonably likely to elicit an incriminating response.
15     In this Section, "electronic recording" includes motion
16 picture, audiotape, videotape, or digital recording.
17     In this Section, "place of detention" means a building or a
18 police station that is a place of operation for a municipal
19 police department or county sheriff department or other law
20 enforcement agency at which persons are or may be held in
21 detention in connection with criminal charges against those
22 persons or allegations that those persons are delinquent
23 minors.
24     (b) An oral, written, or sign language statement of a minor

 

 

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1 who, at the time of the commission of the offense was under the
2 age of 17 years, made as a result of a custodial interrogation
3 conducted at a police station or other place of detention on or
4 after the effective date of this amendatory Act of the 93rd
5 General Assembly shall be presumed to be inadmissible as
6 evidence against the minor in any criminal proceeding or
7 juvenile court proceeding, for an act that if committed by an
8 adult would be brought under Section 9-1, 9-1.2, 9-2, 9-2.1,
9 9-3, 9-3.2, or 9-3.3, of the Criminal Code of 1961 or under
10 clause (d)(1)(F) of Section 11-501 of the Illinois Vehicle Code
11 unless:
12         (1) an electronic recording is made of the custodial
13     interrogation; and
14         (2) the recording is substantially accurate and not
15     intentionally altered.
16     (c) Every electronic recording required under this Section
17 must be preserved until such time as the minor's adjudication
18 for any offense relating to the statement is final and all
19 direct and habeas corpus appeals are exhausted, or the
20 prosecution of such offenses is barred by law.
21     (d) If the court finds, by a preponderance of the evidence,
22 that the minor was subjected to a custodial interrogation in
23 violation of this Section, then any statements made by the
24 minor during or following that non-recorded custodial
25 interrogation, even if otherwise in compliance with this
26 Section, are presumed to be inadmissible in any criminal
27 proceeding or juvenile court proceeding against the minor
28 except for the purposes of impeachment.
29     (e) Nothing in this Section precludes the admission (i) of
30 a statement made by the minor in open court in any criminal
31 proceeding or juvenile court proceeding, before a grand jury,
32 or at a preliminary hearing, (ii) of a statement made during a
33 custodial interrogation that was not recorded as required by
34 this Section because electronic recording was not feasible,

 

 

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1 (iii) of a voluntary statement, whether or not the result of a
2 custodial interrogation, that has a bearing on the credibility
3 of the accused as a witness, (iv) of a spontaneous statement
4 that is not made in response to a question, (v) of a statement
5 made after questioning that is routinely asked during the
6 processing of the arrest of the suspect, (vi) of a statement
7 made during a custodial interrogation by a suspect who
8 requests, prior to making the statement, to respond to the
9 interrogator's questions only if an electronic recording is not
10 made of the statement, provided that an electronic recording is
11 made of the statement of agreeing to respond to the
12 interrogator's question, only if a recording is not made of the
13 statement, (vii) of a statement made during a custodial
14 interrogation that is conducted out-of-state, (viii) of a
15 statement given at a time when the interrogators are unaware
16 that a death has in fact occurred, or (ix) of any other
17 statement that may be admissible under law. The State shall
18 bear the burden of proving, by a preponderance of the evidence,
19 that one of the exceptions described in this subsection (e) is
20 applicable. Nothing in this Section precludes the admission of
21 a statement, otherwise inadmissible under this Section, that is
22 used only for impeachment and not as substantive evidence.
23     (f) The presumption of inadmissibility of a statement made
24 by a suspect at a custodial interrogation at a police station
25 or other place of detention may be overcome by a preponderance
26 of the evidence that the statement was voluntarily given and is
27 reliable, based on the totality of the circumstances.
28     (g) Any electronic recording of any statement made by a
29 minor during a custodial interrogation that is compiled by any
30 law enforcement agency as required by this Section for the
31 purposes of fulfilling the requirements of this Section shall
32 be confidential and exempt from public inspection and copying,
33 as provided under Section 7 of the Freedom of Information Act,
34 and the information shall not be transmitted to anyone except

 

 

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1 as needed to comply with this Section.
2 (Source: P.A. 93-206, eff. 7-18-05; 93-517, eff. 8-6-05.)
 
3     Section 10. The Code of Criminal Procedure of 1963 is
4 amended by changing Section 103-2.1 as follows:
 
5     (725 ILCS 5/103-2.1)
6     (This Section may contain text from a Public Act with a
7 delayed effective date)
8     Sec. 103-2.1. When statements by accused may be used.
9     (a) In this Section, "custodial interrogation" means any
10 interrogation during which (i) a reasonable person in the
11 subject's position would consider himself or herself to be in
12 custody and (ii) during which a question is asked that is
13 reasonably likely to elicit an incriminating response.
14     In this Section, "place of detention" means a building or a
15 police station that is a place of operation for a municipal
16 police department or county sheriff department or other law
17 enforcement agency, not a courthouse, that is owned or operated
18 by a law enforcement agency at which persons are or may be held
19 in detention in connection with criminal charges against those
20 persons.
21     In this Section, "electronic recording" includes motion
22 picture, audiotape, or videotape, or digital recording.
23     (b) An oral, written, or sign language statement of an
24 accused made as a result of a custodial interrogation at a
25 police station or other place of detention shall be presumed to
26 be inadmissible as evidence against the accused in any criminal
27 proceeding brought under Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3,
28 9-3.2, or 9-3.3 of the Criminal Code of 1961 or under clause
29 (d)(1)(F) of Section 11-501 of the Illinois Vehicle Code
30 unless:
31         (1) an electronic recording is made of the custodial
32     interrogation; and

 

 

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1         (2) the recording is substantially accurate and not
2     intentionally altered.
3     (c) Every electronic recording required under this Section
4 must be preserved until such time as the defendant's conviction
5 for any offense relating to the statement is final and all
6 direct and habeas corpus appeals are exhausted, or the
7 prosecution of such offenses is barred by law.
8     (d) If the court finds, by a preponderance of the evidence,
9 that the defendant was subjected to a custodial interrogation
10 in violation of this Section, then any statements made by the
11 defendant during or following that non-recorded custodial
12 interrogation, even if otherwise in compliance with this
13 Section, are presumed to be inadmissible in any criminal
14 proceeding against the defendant except for the purposes of
15 impeachment.
16     (e) Nothing in this Section precludes the admission (i) of
17 a statement made by the accused in open court at his or her
18 trial, before a grand jury, or at a preliminary hearing, (ii)
19 of a statement made during a custodial interrogation that was
20 not recorded as required by this Section, because electronic
21 recording was not feasible, (iii) of a voluntary statement,
22 whether or not the result of a custodial interrogation, that
23 has a bearing on the credibility of the accused as a witness,
24 (iv) of a spontaneous statement that is not made in response to
25 a question, (v) of a statement made after questioning that is
26 routinely asked during the processing of the arrest of the
27 suspect, (vi) of a statement made during a custodial
28 interrogation by a suspect who requests, prior to making the
29 statement, to respond to the interrogator's questions only if
30 an electronic recording is not made of the statement, provided
31 that an electronic recording is made of the statement of
32 agreeing to respond to the interrogator's question, only if a
33 recording is not made of the statement, (vii) of a statement
34 made during a custodial interrogation that is conducted

 

 

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1 out-of-state, (viii) of a statement given at a time when the
2 interrogators are unaware that a death has in fact occurred, or
3 (ix) of any other statement that may be admissible under law.
4 The State shall bear the burden of proving, by a preponderance
5 of the evidence, that one of the exceptions described in this
6 subsection (e) is applicable. Nothing in this Section precludes
7 the admission of a statement, otherwise inadmissible under this
8 Section, that is used only for impeachment and not as
9 substantive evidence.
10     (f) The presumption of inadmissibility of a statement made
11 by a suspect at a custodial interrogation at a police station
12 or other place of detention may be overcome by a preponderance
13 of the evidence that the statement was voluntarily given and is
14 reliable, based on the totality of the circumstances.
15     (g) Any electronic recording of any statement made by an
16 accused during a custodial interrogation that is compiled by
17 any law enforcement agency as required by this Section for the
18 purposes of fulfilling the requirements of this Section shall
19 be confidential and exempt from public inspection and copying,
20 as provided under Section 7 of the Freedom of Information Act,
21 and the information shall not be transmitted to anyone except
22 as needed to comply with this Section.
23 (Source: P.A. 93-206, eff. 7-18-05; 93-517, eff. 8-6-05.)
 
24     Section 99. Effective date. This Act takes effect upon
25 becoming law.".