97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB3778

 

Introduced 2/10/2012, by Sen. William R. Haine

 

SYNOPSIS AS INTRODUCED:
 
See Index

    Amends the Code of Criminal Procedure of 1963. Adds the State's Attorney's Investigative Subpoenas Article to the Code. Provides that at any time prior to the commencement of a prosecution and upon written application by the State's Attorney, the circuit court shall cause the clerk of the court to issue subpoenas ad testificandum or duces tecum directed to the sheriff or coroner of any county in the State for the purpose of obtaining the testimony of any person or any document or material relevant to a criminal matter being investigated by the State's Attorney. Establishes procedures under which the State's Attorney may apply for the issuance of such subpoenas. Provides that the State's Attorney shall promptly provide a complete transcript or electronic recording of all testimony taken pursuant to a subpoena issued under this Article to the court that issued the subpoena. Provides for disclosure of the existence of the subpoena issued or materials obtained pursuant to the Article to an attorney representing a person or other entity subpoenaed. Provides that the Attorney General, in cooperation with the Illinois State's Attorney Association, shall annually provide a course of training to the State's Attorneys, in the legal, ethical, and practical aspects of the provisions of the Article relating to investigation and prosecutorial functions. Effective immediately.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

SB3778LRB097 17712 RLC 62926 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Code of Criminal Procedure of 1963 is
5amended by adding Article 108C as follows:
 
6    (725 ILCS 5/Art. 108C heading new)
7
ARTICLE 108C. STATE'S ATTORNEY'S INVESTIGATIVE SUBPOENAS

 
8    (725 ILCS 5/108C-1 new)
9    Sec. 108C-1. State's Attorney's investigative subpoenas.
10At any time prior to the commencement of a prosecution and upon
11written application by the State's Attorney as provided in
12Section 108C-5, the circuit court shall cause the clerk of the
13court to issue subpoenas ad testificandum or duces tecum
14directed to the sheriff or coroner of any county in this State
15for the purpose of obtaining the testimony of any person or any
16document or material relevant to a criminal matter being
17investigated by the State's Attorney. For the purposes of this
18Article 108C, a prosecution is commenced upon the filing of a
19complaint or information with the court or the return of a bill
20of indictment.
 
21    (725 ILCS 5/108C-5 new)

 

 

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1    Sec. 108C-5. Application by the State's Attorney. The
2State's Attorney's application shall set forth the nature of
3the matter he or she is investigating and the relevancy of the
4testimony, documents, or materials he or she is seeking to the
5investigation and certify that the testimony, documents, or
6materials sought will be used solely in the exercise of the
7State's Attorney's duty to investigate. In counties where a
8grand jury is presently convened, impaneled, sworn, and
9sitting, such application shall also include a showing of cause
10by the State's Attorney as to why the court should authorize
11the subpoena.
 
12    (725 ILCS 5/108C-10 new)
13    Sec. 108C-10. Return of subpoenaed materials. Materials
14subpoenaed pursuant to this Article shall be returnable to the
15circuit court for the purpose of an in camera inspection prior
16to the delivery of the materials to the State's Attorney,
17unless the court specifically finds that no issues of
18relevance, privilege, or materiality precludes their return
19directly to the State's Attorney. Rulings on relevance,
20materiality, and privilege shall be governed by the rules
21applicable to proceedings before the grand jury and not by the
22rules of evidence applicable at trial.
 
23    (725 ILCS 5/108C-15 new)
24    Sec. 108C-15. Sworn testimony.

 

 

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1    (a) Testimony taken pursuant to this Article shall be under
2oath and take place at a time and location convenient to the
3State's Attorney as directed by the court. The State's Attorney
4shall swear all witnesses. The State's Attorney shall provide
5for a court reporter to attend the session who shall make a
6complete transcript of all proceedings unless the court
7authorizes testimony to be recorded electronically. Such
8electronic recordings shall include a complete audio and video
9record of the entire interview. Before any testimony is given
10by such a person subpoenaed under this Article against whom the
11State's Attorney is considering criminal charges, the State's
12Attorney shall inform that person that he or she has the right
13to refuse to answer any question that will tend to incriminate
14him or her, that anything he or she says may be used against
15him or her in a court of law, that he or she has the right to be
16accompanied and advised of his or her rights by counsel, and
17that he or she will have counsel appointed for him or her if he
18or she cannot afford one. If a person is accompanied by
19counsel, such counsel shall advise him or her of his or her
20rights during the proceedings but may not participate in any
21way. Except for the State's Attorney's copy, transcripts or
22recordings of such proceedings shall be sealed and in the event
23a prosecution is commenced, such transcripts or recordings
24shall be disclosed to the accused as provided by law.
25Preservation of transcripts and recordings of testimony
26obtained pursuant to this Section shall be preserved in

 

 

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1accordance with the record keeping practices applicable to
2grand juries.
3    (b) Only the State's Attorney, his or her reporter, the
4individual providing testimony and his or her attorney, and any
5other person authorized by the court or by law may attend the
6session.
7    (c) All subpoenas testificandum issued pursuant to this
8Article shall on their face advise the responding party that he
9or she has the right to be represented by an attorney, that if
10the person is a target of the investigation, he or she has the
11right to have an attorney present during all sessions in which
12he or she is to provide testimony pursuant to the subpoena, and
13that if he or she cannot afford an attorney, the court will
14appoint an attorney to act on his or her behalf.
15    (d) The State's Attorney shall promptly provide a complete
16transcript or electronic recording of all testimony taken
17pursuant to a subpoena issued under this Article to the court
18that issued the subpoena.
 
19    (725 ILCS 5/108C-20 new)
20    Sec. 108C-20. Secrecy of subpoenas.
21    (a) No person, except as provided in this Section, may
22disclose the existence of a subpoena issued or materials
23obtained pursuant to this Article. Disclosure may be made to:
24        (1) a State's Attorney for use in such State's
25    Attorney's duty; and

 

 

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1        (2) an attorney representing a person or other entity
2    subpoenaed; and
3        (3) such government personnel as are deemed necessary
4    by the State's Attorney in the performance of such State's
5    Attorney's duty to investigate criminal conduct and
6    enforce State criminal law.
7    (b) Any person to whom matters are disclosed under this
8Section shall not use the subpoenaed material for any purpose
9other than assisting the State's Attorney in the performance of
10such State's Attorney's duty to investigate criminal conduct
11and enforce the law. The State's Attorney shall promptly
12provide the court with the names of the persons to whom such
13disclosure has been made.
14    (c) Disclosure otherwise prohibited by this Section may
15also be made when the court directs such in the interest of
16justice.
17    (d) Any person who discloses, other than to his or her
18attorney, matters occurring before the issuing court, other
19than in accordance with the provisions of this Section, shall
20be punished as a contempt of court, subject to proceedings in
21accordance to law.
22    (e) Any investigative subpoena, documents, or other
23materials, and transcripts or electronic recordings of any
24testimony made by an individual pursuant to a subpoena obtained
25pursuant to this Article, shall be confidential and exempt from
26public inspection and copying, as provided under Section 7 of

 

 

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1the Freedom of Information Act, and the information shall not
2be transmitted to anyone except as needed to comply with this
3Article.
 
4    (725 ILCS 5/108C-25 new)
5    Sec. 108C-25. Record of proceedings. Any proceeding
6related to the issuance or enforceability of a subpoena issued
7pursuant to this Article, or to the disclosure of information
8obtained from such subpoena, shall take place in camera and in
9the presence of the State's Attorney, and at the party's
10request, the party subpoenaed and his or her counsel, and a
11court reporter who shall transcribe the proceedings. Except for
12the State's Attorney's copy, such transcripts shall be sealed
13and in the event a prosecution is commenced, the transcript
14shall be disclosed to the accused as provided by law.
 
15    (725 ILCS 5/108C-30 new)
16    Sec. 108C-30. Right to counsel. Any person appearing
17before an issuing court in response to a subpoena issued under
18this Article shall have the right to be accompanied by counsel.
 
19    (725 ILCS 5/108C-35 new)
20    Sec. 108C-35. Duties of others. The clerk of the court
21shall keep records of subpoenas issued pursuant to this Article
22as may be prescribed by the Rules of the Supreme Court.
 

 

 

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1    (725 ILCS 5/108C-40 new)
2    Sec. 108C-40. Destroyed documents or materials. When
3documents or materials that are the subject of a subpoena
4issued pursuant to this Article have been destroyed or
5withheld, in addition to criminal prosecution, any person
6responsible for such conduct shall be punished as a contempt of
7court subject to proceedings in accordance with law.
 
8    (725 ILCS 5/108C-45 new)
9    Sec. 108C-45. Person defined. As used in this Article
10"person" means an individual, public or private corporation,
11government or any subdivision of government, partnership, or
12unincorporated association.
 
13    (725 ILCS 5/108C-50 new)
14    Sec. 108C-50. Training sessions. The Attorney General, in
15cooperation with the Illinois State's Attorney Association,
16shall annually provide a course of training to the State's
17Attorneys, in the legal, ethical, and practical aspects of the
18provisions of this Article relating to investigation and
19prosecutorial functions.
 
20    Section 99. Effective date. This Act takes effect upon
21becoming law.

 

 

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1 INDEX
2 Statutes amended in order of appearance
3    725 ILCS 5/Art. 108C
4    heading new
5    725 ILCS 5/108C-1 new
6    725 ILCS 5/108C-5 new
7    725 ILCS 5/108C-10 new
8    725 ILCS 5/108C-15 new
9    725 ILCS 5/108C-20 new
10    725 ILCS 5/108C-25 new
11    725 ILCS 5/108C-30 new
12    725 ILCS 5/108C-35 new
13    725 ILCS 5/108C-40 new
14    725 ILCS 5/108C-45 new
15    725 ILCS 5/108C-50 new