Rep. Scott Drury

Filed: 4/9/2014

 

 


 

 


 
09800HB0802ham002LRB098 03640 MRW 58502 a

1
AMENDMENT TO HOUSE BILL 802

2    AMENDMENT NO. ______. Amend House Bill 802 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Criminal Code of 2012 is amended by
5changing Section 14-3 as follows:
 
6    (720 ILCS 5/14-3)
7    Sec. 14-3. Exemptions. The following activities shall be
8exempt from the provisions of this Article:
9    (a) Listening to radio, wireless and television
10communications of any sort where the same are publicly made;
11    (b) Hearing conversation when heard by employees of any
12common carrier by wire incidental to the normal course of their
13employment in the operation, maintenance or repair of the
14equipment of such common carrier by wire so long as no
15information obtained thereby is used or divulged by the hearer;
16    (c) Any broadcast by radio, television or otherwise whether

 

 

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1it be a broadcast or recorded for the purpose of later
2broadcasts of any function where the public is in attendance
3and the conversations are overheard incidental to the main
4purpose for which such broadcasts are then being made;
5    (d) Recording or listening with the aid of any device to
6any emergency communication made in the normal course of
7operations by any federal, state or local law enforcement
8agency or institutions dealing in emergency services,
9including, but not limited to, hospitals, clinics, ambulance
10services, fire fighting agencies, any public utility,
11emergency repair facility, civilian defense establishment or
12military installation;
13    (e) Recording the proceedings of any meeting required to be
14open by the Open Meetings Act, as amended;
15    (f) Recording or listening with the aid of any device to
16incoming telephone calls of phone lines publicly listed or
17advertised as consumer "hotlines" by manufacturers or
18retailers of food and drug products. Such recordings must be
19destroyed, erased or turned over to local law enforcement
20authorities within 24 hours from the time of such recording and
21shall not be otherwise disseminated. Failure on the part of the
22individual or business operating any such recording or
23listening device to comply with the requirements of this
24subsection shall eliminate any civil or criminal immunity
25conferred upon that individual or business by the operation of
26this Section;

 

 

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1    (g) With prior notification to the State's Attorney of the
2county in which it is to occur, recording or listening with the
3aid of any device to any conversation where a law enforcement
4officer, or any person acting at the direction of law
5enforcement, is a party to the conversation and has consented
6to it being intercepted or recorded under circumstances where
7the use of the device is necessary for the protection of the
8law enforcement officer or any person acting at the direction
9of law enforcement, in the course of an investigation of a
10forcible felony, a felony offense of involuntary servitude,
11involuntary sexual servitude of a minor, or trafficking in
12persons under Section 10-9 of this Code, an offense involving
13prostitution, solicitation of a sexual act, or pandering, a
14felony violation of the Illinois Controlled Substances Act, a
15felony violation of the Cannabis Control Act, a felony
16violation of the Methamphetamine Control and Community
17Protection Act, any "streetgang related" or "gang-related"
18felony as those terms are defined in the Illinois Streetgang
19Terrorism Omnibus Prevention Act, or any felony offense
20involving any weapon listed in paragraphs (1) through (11) of
21subsection (a) of Section 24-1 of this Code. Any recording or
22evidence derived as the result of this exemption shall be
23inadmissible in any proceeding, criminal, civil or
24administrative, except (i) where a party to the conversation
25suffers great bodily injury or is killed during such
26conversation, or (ii) when used as direct impeachment of a

 

 

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1witness concerning matters contained in the interception or
2recording. The Director of the Department of State Police shall
3issue regulations as are necessary concerning the use of
4devices, retention of tape recordings, and reports regarding
5their use;
6    (g-5) With approval of the State's Attorney of the county
7in which it is to occur, recording or listening with the aid of
8any device to any conversation where a law enforcement officer,
9or any person acting at the direction of law enforcement, is a
10party to the conversation and has consented to it being
11intercepted or recorded in the course of an investigation of
12any offense defined in Article 29D of this Code. In all such
13cases, an application for an order approving the previous or
14continuing use of an eavesdropping device must be made within
1548 hours of the commencement of such use. In the absence of
16such an order, or upon its denial, any continuing use shall
17immediately terminate. The Director of State Police shall issue
18rules as are necessary concerning the use of devices, retention
19of tape recordings, and reports regarding their use.
20    Any recording or evidence obtained or derived in the course
21of an investigation of any offense defined in Article 29D of
22this Code shall, upon motion of the State's Attorney or
23Attorney General prosecuting any violation of Article 29D, be
24reviewed in camera with notice to all parties present by the
25court presiding over the criminal case, and, if ruled by the
26court to be relevant and otherwise admissible, it shall be

 

 

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1admissible at the trial of the criminal case.
2    This subsection (g-5) is inoperative on and after January
31, 2005. No conversations recorded or monitored pursuant to
4this subsection (g-5) shall be inadmissible in a court of law
5by virtue of the repeal of this subsection (g-5) on January 1,
62005;
7    (g-6) With approval of the State's Attorney of the county
8in which it is to occur, recording or listening with the aid of
9any device to any conversation where a law enforcement officer,
10or any person acting at the direction of law enforcement, is a
11party to the conversation and has consented to it being
12intercepted or recorded in the course of an investigation of
13involuntary servitude, involuntary sexual servitude of a
14minor, trafficking in persons, child pornography, aggravated
15child pornography, indecent solicitation of a child, child
16abduction, luring of a minor, sexual exploitation of a child,
17predatory criminal sexual assault of a child, aggravated
18criminal sexual abuse in which the victim of the offense was at
19the time of the commission of the offense under 18 years of
20age, criminal sexual abuse by force or threat of force in which
21the victim of the offense was at the time of the commission of
22the offense under 18 years of age, or aggravated criminal
23sexual assault in which the victim of the offense was at the
24time of the commission of the offense under 18 years of age. In
25all such cases, an application for an order approving the
26previous or continuing use of an eavesdropping device must be

 

 

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1made within 48 hours of the commencement of such use. In the
2absence of such an order, or upon its denial, any continuing
3use shall immediately terminate. The Director of State Police
4shall issue rules as are necessary concerning the use of
5devices, retention of recordings, and reports regarding their
6use. Any recording or evidence obtained or derived in the
7course of an investigation of involuntary servitude,
8involuntary sexual servitude of a minor, trafficking in
9persons, child pornography, aggravated child pornography,
10indecent solicitation of a child, child abduction, luring of a
11minor, sexual exploitation of a child, predatory criminal
12sexual assault of a child, aggravated criminal sexual abuse in
13which the victim of the offense was at the time of the
14commission of the offense under 18 years of age, criminal
15sexual abuse by force or threat of force in which the victim of
16the offense was at the time of the commission of the offense
17under 18 years of age, or aggravated criminal sexual assault in
18which the victim of the offense was at the time of the
19commission of the offense under 18 years of age shall, upon
20motion of the State's Attorney or Attorney General prosecuting
21any case involving involuntary servitude, involuntary sexual
22servitude of a minor, trafficking in persons, child
23pornography, aggravated child pornography, indecent
24solicitation of a child, child abduction, luring of a minor,
25sexual exploitation of a child, predatory criminal sexual
26assault of a child, aggravated criminal sexual abuse in which

 

 

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1the victim of the offense was at the time of the commission of
2the offense under 18 years of age, criminal sexual abuse by
3force or threat of force in which the victim of the offense was
4at the time of the commission of the offense under 18 years of
5age, or aggravated criminal sexual assault in which the victim
6of the offense was at the time of the commission of the offense
7under 18 years of age, be reviewed in camera with notice to all
8parties present by the court presiding over the criminal case,
9and, if ruled by the court to be relevant and otherwise
10admissible, it shall be admissible at the trial of the criminal
11case. Absent such a ruling, any such recording or evidence
12shall not be admissible at the trial of the criminal case;
13    (h) Recordings made simultaneously with the use of an
14in-car video camera recording of an oral conversation between a
15uniformed peace officer, who has identified his or her office,
16and a person in the presence of the peace officer whenever (i)
17an officer assigned a patrol vehicle is conducting an
18enforcement stop; or (ii) patrol vehicle emergency lights are
19activated or would otherwise be activated if not for the need
20to conceal the presence of law enforcement.
21    For the purposes of this subsection (h), "enforcement stop"
22means an action by a law enforcement officer in relation to
23enforcement and investigation duties, including but not
24limited to, traffic stops, pedestrian stops, abandoned vehicle
25contacts, motorist assists, commercial motor vehicle stops,
26roadside safety checks, requests for identification, or

 

 

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1responses to requests for emergency assistance;
2    (h-5) Recordings of utterances made by a person while in
3the presence of a uniformed peace officer and while an occupant
4of a police vehicle including, but not limited to, (i)
5recordings made simultaneously with the use of an in-car video
6camera and (ii) recordings made in the presence of the peace
7officer utilizing video or audio systems, or both, authorized
8by the law enforcement agency;
9    (h-10) Recordings made simultaneously with a video camera
10recording during the use of a taser or similar weapon or device
11by a peace officer if the weapon or device is equipped with
12such camera;
13    (h-15) Recordings made under subsection (h), (h-5), or
14(h-10) shall be retained by the law enforcement agency that
15employs the peace officer who made the recordings for a storage
16period of 90 days, unless the recordings are made as a part of
17an arrest or the recordings are deemed evidence in any
18criminal, civil, or administrative proceeding and then the
19recordings must only be destroyed upon a final disposition and
20an order from the court. Under no circumstances shall any
21recording be altered or erased prior to the expiration of the
22designated storage period. Upon completion of the storage
23period, the recording medium may be erased and reissued for
24operational use;
25    (i) Recording of a conversation made by or at the request
26of a person, not a law enforcement officer or agent of a law

 

 

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1enforcement officer, who is a party to the conversation, under
2reasonable suspicion that another party to the conversation is
3committing, is about to commit, or has committed a criminal
4offense against the person or a member of his or her immediate
5household, and there is reason to believe that evidence of the
6criminal offense may be obtained by the recording;
7    (j) The use of a telephone monitoring device by either (1)
8a corporation or other business entity engaged in marketing or
9opinion research or (2) a corporation or other business entity
10engaged in telephone solicitation, as defined in this
11subsection, to record or listen to oral telephone solicitation
12conversations or marketing or opinion research conversations
13by an employee of the corporation or other business entity
14when:
15        (i) the monitoring is used for the purpose of service
16    quality control of marketing or opinion research or
17    telephone solicitation, the education or training of
18    employees or contractors engaged in marketing or opinion
19    research or telephone solicitation, or internal research
20    related to marketing or opinion research or telephone
21    solicitation; and
22        (ii) the monitoring is used with the consent of at
23    least one person who is an active party to the marketing or
24    opinion research conversation or telephone solicitation
25    conversation being monitored.
26    No communication or conversation or any part, portion, or

 

 

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1aspect of the communication or conversation made, acquired, or
2obtained, directly or indirectly, under this exemption (j), may
3be, directly or indirectly, furnished to any law enforcement
4officer, agency, or official for any purpose or used in any
5inquiry or investigation, or used, directly or indirectly, in
6any administrative, judicial, or other proceeding, or divulged
7to any third party.
8    When recording or listening authorized by this subsection
9(j) on telephone lines used for marketing or opinion research
10or telephone solicitation purposes results in recording or
11listening to a conversation that does not relate to marketing
12or opinion research or telephone solicitation; the person
13recording or listening shall, immediately upon determining
14that the conversation does not relate to marketing or opinion
15research or telephone solicitation, terminate the recording or
16listening and destroy any such recording as soon as is
17practicable.
18    Business entities that use a telephone monitoring or
19telephone recording system pursuant to this exemption (j) shall
20provide current and prospective employees with notice that the
21monitoring or recordings may occur during the course of their
22employment. The notice shall include prominent signage
23notification within the workplace.
24    Business entities that use a telephone monitoring or
25telephone recording system pursuant to this exemption (j) shall
26provide their employees or agents with access to personal-only

 

 

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1telephone lines which may be pay telephones, that are not
2subject to telephone monitoring or telephone recording.
3    For the purposes of this subsection (j), "telephone
4solicitation" means a communication through the use of a
5telephone by live operators:
6        (i) soliciting the sale of goods or services;
7        (ii) receiving orders for the sale of goods or
8    services;
9        (iii) assisting in the use of goods or services; or
10        (iv) engaging in the solicitation, administration, or
11    collection of bank or retail credit accounts.
12    For the purposes of this subsection (j), "marketing or
13opinion research" means a marketing or opinion research
14interview conducted by a live telephone interviewer engaged by
15a corporation or other business entity whose principal business
16is the design, conduct, and analysis of polls and surveys
17measuring the opinions, attitudes, and responses of
18respondents toward products and services, or social or
19political issues, or both;
20    (k) Electronic recordings, including but not limited to, a
21motion picture, videotape, digital, or other visual or audio
22recording, made of a custodial interrogation of an individual
23at a police station or other place of detention by a law
24enforcement officer under Section 5-401.5 of the Juvenile Court
25Act of 1987 or Section 103-2.1 of the Code of Criminal
26Procedure of 1963;

 

 

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1    (l) Recording the interview or statement of any person when
2the person knows that the interview is being conducted by a law
3enforcement officer or prosecutor and the interview takes place
4at a police station that is currently participating in the
5Custodial Interview Pilot Program established under the
6Illinois Criminal Justice Information Act;
7    (m) An electronic recording, including but not limited to,
8a motion picture, videotape, digital, or other visual or audio
9recording, made of the interior of a school bus while the
10school bus is being used in the transportation of students to
11and from school and school-sponsored activities, when the
12school board has adopted a policy authorizing such recording,
13notice of such recording policy is included in student
14handbooks and other documents including the policies of the
15school, notice of the policy regarding recording is provided to
16parents of students, and notice of such recording is clearly
17posted on the door of and inside the school bus.
18    Recordings made pursuant to this subsection (m) shall be
19confidential records and may only be used by school officials
20(or their designees) and law enforcement personnel for
21investigations, school disciplinary actions and hearings,
22proceedings under the Juvenile Court Act of 1987, and criminal
23prosecutions, related to incidents occurring in or around the
24school bus;
25    (n) Recording or listening to an audio transmission from a
26microphone placed by a person under the authority of a law

 

 

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1enforcement agency inside a bait car surveillance vehicle while
2simultaneously capturing a photographic or video image;
3    (o) The use of an eavesdropping camera or audio device
4during an ongoing hostage or barricade situation by a law
5enforcement officer or individual acting on behalf of a law
6enforcement officer when the use of such device is necessary to
7protect the safety of the general public, hostages, or law
8enforcement officers or anyone acting on their behalf;
9    (p) Recording or listening with the aid of any device to
10incoming telephone calls of phone lines publicly listed or
11advertised as the "CPS Violence Prevention Hotline", but only
12where the notice of recording is given at the beginning of each
13call as required by Section 34-21.8 of the School Code. The
14recordings may be retained only by the Chicago Police
15Department or other law enforcement authorities, and shall not
16be otherwise retained or disseminated; and
17    (q)(1) With prior request to and verbal approval of the
18State's Attorney of the county in which the conversation is
19anticipated to occur, recording or listening with the aid of an
20eavesdropping device to a conversation in which a law
21enforcement officer, or any person acting at the direction of a
22law enforcement officer, is a party to the conversation and has
23consented to the conversation being intercepted or recorded in
24the course of an investigation of a drug offense. The State's
25Attorney may grant this verbal approval only after determining
26that reasonable cause exists to believe that a drug offense

 

 

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1will be committed by a specified individual or individuals
2within a designated period of time.
3    (2) Request for approval. To invoke the exception contained
4in this subsection (q), a law enforcement officer shall make a
5written or verbal request for approval to the appropriate
6State's Attorney. This request for approval shall include
7whatever information is deemed necessary by the State's
8Attorney but shall include, at a minimum, the following
9information about each specified individual whom the law
10enforcement officer believes will commit a drug offense:
11        (A) his or her full or partial name, nickname or alias;
12        (B) a physical description; or
13        (C) failing either (A) or (B) of this paragraph (2),
14    any other supporting information known to the law
15    enforcement officer at the time of the request that gives
16    rise to reasonable cause to believe the individual will
17    commit a drug offense.
18    (3) Limitations on verbal approval. Each verbal approval by
19the State's Attorney under this subsection (q) shall be limited
20to:
21        (A) a recording or interception conducted by a
22    specified law enforcement officer or person acting at the
23    direction of a law enforcement officer;
24        (B) recording or intercepting conversations with the
25    individuals specified in the request for approval,
26    provided that the verbal approval shall be deemed to

 

 

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1    include the recording or intercepting of conversations
2    with other individuals, unknown to the law enforcement
3    officer at the time of the request for approval, who are
4    acting in conjunction with or as co-conspirators with the
5    individuals specified in the request for approval in the
6    commission of a drug offense;
7        (C) a reasonable period of time but in no event longer
8    than 24 consecutive hours.
9    (4) Admissibility of evidence. No part of the contents of
10any wire, electronic, or oral communication that has been
11recorded or intercepted as a result of this exception may be
12received in evidence in any trial, hearing, or other proceeding
13in or before any court, grand jury, department, officer,
14agency, regulatory body, legislative committee, or other
15authority of this State, or a political subdivision of the
16State, other than in a prosecution of:
17        (A) a drug offense;
18        (B) a forcible felony committed directly in the course
19    of the investigation of a drug offense for which verbal
20    approval was given to record or intercept a conversation
21    under this subsection (q); or
22        (C) any other forcible felony committed while the
23    recording or interception was approved in accordance with
24    this Section (q), but for this specific category of
25    prosecutions, only if the law enforcement officer or person
26    acting at the direction of a law enforcement officer who

 

 

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1    has consented to the conversation being intercepted or
2    recorded suffers great bodily injury or is killed during
3    the commission of the charged forcible felony.
4    (5) Compliance with the provisions of this subsection is a
5prerequisite to the admissibility in evidence of any part of
6the contents of any wire, electronic or oral communication that
7has been intercepted as a result of this exception, but nothing
8in this subsection shall be deemed to prevent a court from
9otherwise excluding the evidence on any other ground, nor shall
10anything in this subsection be deemed to prevent a court from
11independently reviewing the admissibility of the evidence for
12compliance with the Fourth Amendment to the U.S. Constitution
13or with Article I, Section 6 of the Illinois Constitution.
14    (6) Use of recordings or intercepts unrelated to drug
15offenses. Whenever any wire, electronic, or oral communication
16has been recorded or intercepted as a result of this exception
17that is not related to a drug offense or a forcible felony
18committed in the course of a drug offense, no part of the
19contents of the communication and evidence derived from the
20communication may be received in evidence in any trial,
21hearing, or other proceeding in or before any court, grand
22jury, department, officer, agency, regulatory body,
23legislative committee, or other authority of this State, or a
24political subdivision of the State, nor may it be publicly
25disclosed in any way.
26    (7) Definitions. For the purposes of this subsection (q)

 

 

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1only:
2        "Drug offense" includes and is limited to a felony
3    violation of one of the following: (A) the Illinois
4    Controlled Substances Act, (B) the Cannabis Control Act,
5    and (C) the Methamphetamine Control and Community
6    Protection Act.
7        "Forcible felony" includes and is limited to those
8    offenses contained in Section 2-8 of the Criminal Code of
9    1961 as of the effective date of this amendatory Act of the
10    97th General Assembly, and only as those offenses have been
11    defined by law or judicial interpretation as of that date.
12        "State's Attorney" includes and is limited to the
13    State's Attorney or an assistant State's Attorney
14    designated by the State's Attorney to provide verbal
15    approval to record or intercept conversations under this
16    subsection (q).
17    (8) Sunset. This subsection (q) is inoperative on and after
18January 1, 2015. No conversations intercepted pursuant to this
19subsection (q), while operative, shall be inadmissible in a
20court of law by virtue of the inoperability of this subsection
21(q) on January 1, 2015; and .
22    (r) Electronic recordings, including but not limited to,
23motion picture, videotape, digital, or other visual or audio
24recording, made of a lineup under Section 107A-2 of the Code of
25Criminal Procedure of 1963.
26(Source: P.A. 97-333, eff. 8-12-11; 97-846, eff. 1-1-13;

 

 

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197-897, eff. 1-1-13; 98-463, eff. 8-16-13.)
 
2    Section 10. The Code of Criminal Procedure of 1963 is
3amended by adding Sections 107A-0.1 and 107A-2 as follows:
 
4    (725 ILCS 5/107A-0.1 new)
5    Sec. 107A-0.1. Definitions.
6    For the purposes of this Article:
7        "Eyewitness" means a person whose identification by
8    sight of another person may be relevant in a criminal
9    proceeding.
10        "Filler" means a person or a photograph of a person who
11    is not suspected of an offense and is included in a lineup.
12        "Independent administrator" means a lineup
13    administrator who is not participating in the
14    investigation of the criminal offense and is unaware of
15    which person in the lineup is the suspected perpetrator.
16        "Lineup" includes a photo lineup or live lineup.
17        "Lineup administrator" means the person who conducts a
18    lineup.
19        "Live lineup" means a procedure in which a group of
20    persons is displayed to an eyewitness for the purpose of
21    determining if the eyewitness is able to identify the
22    perpetrator of a crime, but does not include a showup.
23        "Photo lineup" means a procedure in which photographs
24    are displayed to an eyewitness for the purpose of

 

 

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1    determining if the eyewitness is able to identify the
2    perpetrator of a crime.
3        "Sequential lineup" means a live or photo lineup in
4    which each person or photograph is presented to an
5    eyewitness separately, in a previously determined order,
6    and removed from the eyewitness's view before the next
7    person or photograph is presented, in order to determine if
8    the eyewitness is able to identify the perpetrator of a
9    crime.
10        "Showup" means a procedure in which a suspected
11    perpetrator is presented to the eyewitness at, or near, a
12    crime scene for the purpose of obtaining an immediate
13    identification.
14        "Simultaneous lineup" means a live or photo lineup in
15    which a group of persons or array of photographs is
16    presented simultaneously to an eyewitness for the purpose
17    of determining if the eyewitness is able to identify the
18    perpetrator of a crime.
 
19    (725 ILCS 5/107A-2 new)
20    Sec. 107A-2. Lineup procedure.
21    (a) All lineups shall be conducted using one of the
22following methods:
23        (1) An independent administrator.
24        (2) An automated computer program or other device that
25    can automatically display a photo lineup to an eyewitness

 

 

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1    in a manner that prevents the lineup administrator from
2    seeing which photograph or photographs the eyewitness is
3    viewing until after the lineup is completed. The automated
4    computer program may present the photographs to the
5    eyewitness simultaneously or sequentially, consistent with
6    the law enforcement agency guidelines required under
7    subsection (b) of this Section.
8        (3) A procedure in which photographs are placed in
9    folders, randomly numbered, and shuffled and then
10    presented to an eyewitness such that the lineup
11    administrator cannot see or know which photograph or
12    photographs are being presented to the eyewitness until
13    after the procedure is completed. The photographs may be
14    presented to the eyewitness simultaneously or
15    sequentially, consistent with the law enforcement agency
16    guidelines required under subsection (b) of this Section.
17        (4) Any other procedure that prevents the lineup
18    administrator from knowing the identity of the suspected
19    perpetrator or seeing or knowing the photographs being
20    presented to the eyewitness until after the procedure is
21    completed.
22    (b) Each law enforcement agency shall adopt written
23guidelines setting forth when, if at all, simultaneous lineups
24shall be conducted and when, if at all, sequential lineups
25shall be conducted. This subsection does not establish a
26preference for whether a law enforcement agency should conduct

 

 

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1simultaneous lineups or sequential lineups. Whether and when to
2conduct simultaneous lineups or sequential lineups is at the
3discretion of each law enforcement agency. If, after the
4effective date of this amendatory Act of the 98th General
5Assembly, a method of conducting a lineup different from a
6simultaneous or sequential lineup is determined by the Illinois
7Supreme Court to be sufficiently established to have gained
8general acceptance as a reliable method for eyewitness
9identifications and provides more accurate results than
10simultaneous or sequential lineups, a law enforcement agency
11may adopt written guidelines setting forth when, if at all,
12this different method of conducting lineups shall be used and,
13when feasible, the provisions of subsection (d) of this Section
14shall apply to the use of these methods.
15    (c) On and after the effective date of this amendatory Act
16of the 98th General Assembly, there is no preference as to
17whether a law enforcement agency conducts a live lineup or a
18photo lineup and to the extent that the common law directs
19otherwise, this direction is abrogated.
20    (d) If a lineup administrator conducts a sequential lineup,
21the following shall apply:
22        (1) Solely at the eyewitness's request, the lineup
23    administrator may present a person or photograph to the
24    eyewitness an additional time but only after the eyewitness
25    has first viewed each person or photograph one time.
26        (2) If the eyewitness identifies a person as a

 

 

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1    perpetrator, the lineup administrator shall continue to
2    sequentially present the remaining persons or photographs
3    to the eyewitness until the eyewitness has viewed each
4    person or photograph.
5    (e) Before a lineup is conducted:
6        (1) The eyewitness shall be instructed that:
7            (A) if recording the lineup is practical, an audio
8        and video recording of the lineup will be made for the
9        purpose of accurately documenting all statements made
10        by the eyewitness, unless the eyewitness refuses to the
11        recording of the lineup, and that if a recording is
12        made it will be of the persons in the lineup and the
13        eyewitness;
14            (B) the perpetrator may or may not be presented in
15        the lineup;
16            (C) if an independent administrator is conducting
17        the lineup, the independent administrator does not
18        know the suspected perpetrator's identity;
19            (D) the eyewitness should not feel compelled to
20        make an identification;
21            (E) it is as important to exclude innocent persons
22        as it is to identify a perpetrator; and
23            (F) the investigation will continue whether or not
24        an identification is made.
25        (2) The eyewitness shall acknowledge in writing the
26    receipt of the instructions required under this subsection

 

 

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1    and, if applicable, the refusal to be recorded. If the
2    eyewitness refuses to sign the acknowledgement, the lineup
3    administrator shall note the refusal of the eyewitness to
4    sign the acknowledgement and shall also sign the
5    acknowledgement.
6    (f) In conducting a lineup:
7        (1) When practicable, the lineup administrator shall
8    separate all eyewitnesses in order to prevent the
9    eyewitnesses from conferring with one another before and
10    during the lineup procedure. If separating the
11    eyewitnesses is not practicable, the lineup administrator
12    shall ensure that all eyewitnesses are monitored and that
13    they do not confer with one another before and during the
14    lineup.
15        (2) Each eyewitness shall perform the identification
16    procedures without any other eyewitness present. Each
17    eyewitness shall be given instructions regarding the
18    identification procedures without other eyewitnesses
19    present.
20        (3) The lineup shall be composed to ensure that the
21    suspected perpetrator does not unduly stand out from the
22    fillers. In addition:
23            (A) Only one suspected perpetrator shall be
24        included in a lineup.
25            (B) If the eyewitness has provided a description of
26        the perpetrator, all fillers selected shall resemble,

 

 

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1        as much as practicable, the eyewitness's description
2        of the perpetrator in his or her significant features.
3            (C) At least 5 fillers shall be included in a photo
4        lineup, in addition to the suspected perpetrator.
5            (D) When practicable, at least 5 fillers shall be
6        included in a live lineup, in addition to the suspected
7        perpetrator, but in no event shall there be less than 3
8        fillers in addition to the suspected perpetrator.
9            (E) If the eyewitness has previously viewed a photo
10        lineup or live lineup in connection with the
11        identification of another person suspected of
12        involvement in the offense, the fillers in the lineup
13        in which the current suspected perpetrator
14        participates shall be different from the fillers used
15        in the prior lineups.
16        (4) If there are multiple eyewitnesses, subject to the
17    requirements in subsection (a) of this Section and to the
18    extent possible, the suspected perpetrator shall be placed
19    in a different position in the lineup or photo array for
20    each eyewitness.
21        (5) Nothing shall be communicated to the eyewitness
22    regarding the suspected perpetrator's position in the
23    lineup or regarding anything that may influence the
24    eyewitness's identification.
25        (6) No writings or information concerning any previous
26    arrest, indictment, or conviction of the suspected

 

 

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1    perpetrator shall be visible or made known to the
2    eyewitness.
3        (7) If a photo lineup, the photograph of the suspected
4    perpetrator shall be contemporary and, to the extent
5    practicable, shall resemble the suspected perpetrator's
6    appearance at the time of the offense.
7        (8) If a live lineup, any identifying actions, such as
8    speech, gestures, or other movements, shall be performed by
9    all lineup participants.
10        (9) If a live lineup, all lineup participants must be
11    out of view of the eyewitness prior to the lineup.
12        (10) If an identification is made, the lineup
13    administrator shall obtain and document a statement from
14    the eyewitness at the time of the identification and in the
15    eyewitness's own words as to the eyewitness's certainty of
16    the identification. Based on the eyewitness's statement,
17    the lineup administrator shall set forth his or her
18    determination as to whether the identification is positive
19    or tentative. If the eyewitness identifies a person as the
20    perpetrator, the eyewitness shall not be provided any
21    information concerning the person before the eyewitness's
22    statement is made. When practicable, an audio or video
23    recording of the statement shall be made.
24        (11) If the eyewitness identifies a person as the
25    perpetrator, the eyewitness shall not be provided any
26    information concerning the person before the lineup

 

 

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1    administrator obtains the eyewitness's statement about his
2    or her confidence in the selection.
3        (12) Unless otherwise allowed under subsection (a) of
4    this Section, there shall not be anyone present during a
5    lineup who knows the suspected perpetrator's identity,
6    except the eyewitness and suspected perpetrator's counsel
7    if required by law.
8    (g) The lineup administrator shall make an official report
9of all lineups, which shall include all of the following
10information:
11        (1) All identification and non-identification results
12    obtained during the lineup, signed by the eyewitness,
13    including the eyewitness's confidence statement as
14    required under paragraph (10) of subsection (f) of this
15    Section. If the eyewitness refuses to sign, the lineup
16    administrator shall note the refusal of the eyewitness to
17    sign the results and shall also sign the notation.
18        (2) The names of all persons who viewed the lineup.
19        (3) The names of all law enforcement officers and
20    counsel present during the lineup.
21        (4) The date, time, and location of the lineup.
22        (5) The words used by the eyewitness in an
23    identification, including words that describe the
24    eyewitness's certainty of identification.
25        (6) Whether it was a photo lineup or live lineup and
26    how many persons or photographs were presented in the

 

 

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1    lineup.
2        (7) The sources of all persons or photographs used as
3    fillers in the lineup.
4        (8) In a photo lineup, the actual photographs shown to
5    the eyewitness.
6        (9) In a live lineup, a photograph or other visual
7    recording of the lineup that includes all persons who
8    participated in the lineup.
9        (10) If applicable, the eyewitness's refusal to be
10    recorded.
11        (11) If applicable, the reason for any
12    impracticability in strict compliance with this Section.
13    (h) Unless it is not practical or the eyewitness refuses, a
14video record of all lineup procedures shall be made.
15        (1) If a video record is not practical or the
16    eyewitness refuses to allow a video record to be made:
17            (A) the reasons or the refusal shall be documented
18        in the official report required under subsection (g) of
19        this Section;
20            (B) an audio record shall be made, if practical;
21        and
22            (C) if a live lineup, the lineup shall be
23        photographed.
24        (2) If an audio record is not practical, the reasons
25    shall be documented in the official report required under
26    subsection (g) of this Section.

 

 

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1    (i) The photographs, recordings, and the official report of
2the lineup required by this Section shall be disclosed to
3counsel for the accused as provided by the Illinois Supreme
4Court Rules regarding discovery. All photographs of suspected
5perpetrators shown to an eyewitness during a lineup shall be
6disclosed to counsel for the accused as provided by the
7Illinois Supreme Court Rules regarding discovery.
8    (j) All of the following shall be available as consequences
9of compliance or noncompliance with the requirements of this
10Section:
11        (1) Failure to comply with any of the requirements of
12    this Section shall be a factor to be considered by the
13    court in adjudicating a motion to suppress an eyewitness
14    identification or any other motion to bar an eyewitness
15    identification. These motions shall be in writing and state
16    facts showing how the identification procedure was
17    improper. This paragraph (1) makes no change to existing
18    applicable common law or statutory standards or burdens of
19    proof.
20        (2) When warranted by the evidence presented at trial,
21    the jury shall be instructed that it may consider all the
22    facts and circumstances including compliance or
23    noncompliance with this Section to assist in its weighing
24    of the identification testimony of an eyewitness.
 
25    (725 ILCS 5/107A-5 rep.)

 

 

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1    (725 ILCS 5/107A-10 rep.)
2    Section 15. The Code of Criminal Procedure of 1963 is
3amended by repealing Sections 107A-5 and 107A-10.".