Full Text of SB2776 97th General Assembly
SB2776sam001 97TH GENERAL ASSEMBLY | Sen. Kwame Raoul Filed: 3/26/2012
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| 1 | | AMENDMENT TO SENATE BILL 2776
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 2776 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 | | Sec. 5-401.5. When statements by minor may be used.
| 8 | | (a) In this Section, "custodial interrogation" means any | 9 | | interrogation
(i) during which a reasonable person in the | 10 | | subject's position
would consider himself or herself to be in | 11 | | custody and (ii) during which
a
question is asked that is | 12 | | reasonably likely to elicit an incriminating
response.
| 13 | | In this Section, "electronic recording" includes motion | 14 | | picture,
audiotape, videotape, or digital recording.
| 15 | | In this Section, "place of detention" means a building
or a | 16 | | police station that is a place of operation for a municipal |
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| 1 | | police
department or county sheriff department or other law | 2 | | enforcement agency
at which persons are or may be held in | 3 | | detention in
connection with criminal charges against those | 4 | | persons or allegations that
those
persons are delinquent | 5 | | minors.
| 6 | | (b) An oral, written, or sign language statement of a minor | 7 | | who, at the time
of the
commission of the offense was under the | 8 | | age of 17
years, made as a
result of a custodial interrogation | 9 | | conducted at a police station or other
place of detention on or | 10 | | after
the effective date of
this amendatory Act of the 93rd | 11 | | General Assembly shall be presumed to be
inadmissible as | 12 | | evidence against the
minor in
any criminal proceeding or | 13 | | juvenile court proceeding,
for an act that if committed by an | 14 | | adult could be charged as a Class 1 felony, Class X felony, or | 15 | | first degree murder under the Criminal Code of 1961 would be
| 16 | | brought under Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, or | 17 | | 9-3.3,
of the Criminal Code of 1961
or under clause (d)(1)(F) | 18 | | of Section 11-501 of the Illinois Vehicle Code
unless:
| 19 | | (1) an electronic recording
is made of the custodial | 20 | | interrogation; and
| 21 | | (2) the recording is substantially accurate and not | 22 | | intentionally altered.
| 23 | | (c) Every electronic recording required under this Section
| 24 | | must be preserved
until such time as the
minor's adjudication
| 25 | | for any
offense relating to the statement is final and all | 26 | | direct and habeas corpus
appeals are
exhausted,
or the |
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| 1 | | prosecution of such offenses is barred by law.
| 2 | | (d) If the court finds, by a preponderance of the evidence, | 3 | | that the
minor
was
subjected to a custodial interrogation in | 4 | | violation of this Section,
then any statements made
by the
| 5 | | minor during or following that non-recorded custodial | 6 | | interrogation, even
if
otherwise in compliance with this | 7 | | Section, are presumed to be inadmissible in
any criminal
| 8 | | proceeding or juvenile court proceeding against the minor | 9 | | except for the
purposes of impeachment.
| 10 | | (e) Nothing in this Section precludes the admission (i) of | 11 | | a statement made
by the
minor in open court in any criminal | 12 | | proceeding or juvenile court proceeding,
before a grand jury, | 13 | | or
at a
preliminary hearing,
(ii) of a
statement made during a
| 14 | | custodial interrogation that was not recorded as required by
| 15 | | this
Section because electronic recording was not feasible, | 16 | | (iii) of a
voluntary
statement,
whether or not the result of a | 17 | | custodial interrogation, that has a bearing on
the
credibility | 18 | | of the accused as a witness, (iv)
of a spontaneous statement
| 19 | | that is not made in response to a question,
(v) of a statement | 20 | | made after questioning that is routinely
asked during the | 21 | | processing of the arrest of the suspect, (vi) of a statement
| 22 | | made during a custodial interrogation by a suspect who | 23 | | requests, prior to
making
the statement, to respond to the
| 24 | | interrogator's questions only if
an electronic recording is not | 25 | | made of the statement, provided that an
electronic
recording is | 26 | | made of the statement of agreeing to respond to
the |
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| 1 | | interrogator's question, only if a recording is not made of the | 2 | | statement,
(vii)
of a statement made
during a custodial
| 3 | | interrogation that is conducted out-of-state,
(viii)
(blank) | 4 | | of a
statement given at a time when the interrogators are | 5 | | unaware that a death
has in fact occurred , or (ix) of any
other | 6 | | statement that may be admissible under law. The State shall | 7 | | bear the
burden of proving, by a preponderance of the evidence, | 8 | | that one of the
exceptions described in this subsection (e) is | 9 | | applicable. Nothing in this
Section precludes the admission of | 10 | | a statement, otherwise inadmissible under
this Section, that is | 11 | | used only for impeachment and not as substantive
evidence.
| 12 | | (f) The presumption of inadmissibility of a statement made | 13 | | by a suspect at
a custodial interrogation at a police station | 14 | | or other place of detention may
be overcome by a preponderance | 15 | | of the evidence
that
the statement was voluntarily given and is | 16 | | reliable, based on the totality of
the
circumstances.
| 17 | | (g) Any electronic recording of any statement made by a | 18 | | minor during a
custodial interrogation that is compiled by any | 19 | | law enforcement agency as
required by this Section for the | 20 | | purposes of fulfilling the requirements of
this
Section shall | 21 | | be confidential and exempt from public inspection and copying, | 22 | | as
provided under Section 7 of the Freedom of Information Act, | 23 | | and the information
shall not be transmitted to anyone except | 24 | | as needed to comply with this
Section.
| 25 | | (h) A statement, admission, confession, or incriminating | 26 | | information made by or obtained from a minor related to the |
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| 1 | | instant offense, as part of any behavioral health screening, | 2 | | assessment, evaluation, or treatment, whether or not | 3 | | court-ordered, shall not be admissible as evidence against the | 4 | | minor on the issue of guilt only in the instant juvenile court | 5 | | proceeding. The provisions of this subsection (h) are in | 6 | | addition to and do not override any existing statutory and | 7 | | constitutional prohibition on the admission into evidence in | 8 | | delinquency proceedings of information obtained during | 9 | | screening, assessment, or treatment. | 10 | | (Source: P.A. 96-1251, eff. 1-1-11.)
| 11 | | Section 10. The Code of Criminal Procedure of 1963 is | 12 | | amended by changing Section 103-2.1 as follows:
| 13 | | (725 ILCS 5/103-2.1)
| 14 | | Sec. 103-2.1. When statements by accused may be used.
| 15 | | (a) In this Section, "custodial interrogation" means any | 16 | | interrogation
during which (i) a reasonable person in the | 17 | | subject's position would consider
himself or herself to be in | 18 | | custody and (ii) during which
a question is asked that is | 19 | | reasonably likely to elicit an incriminating
response.
| 20 | | In this Section, "place of detention" means a building or a | 21 | | police station
that is a place of operation for a municipal | 22 | | police department or county
sheriff department or other law | 23 | | enforcement agency, not a courthouse, that
is owned or operated | 24 | | by a
law enforcement agency at which persons are or may be held |
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| 1 | | in detention in
connection with criminal charges against those | 2 | | persons.
| 3 | | In this Section, "electronic recording" includes motion | 4 | | picture,
audiotape, or videotape, or digital recording.
| 5 | | (b) An oral, written, or sign language statement of an | 6 | | accused made as a
result of a
custodial
interrogation at a | 7 | | police station or other place of detention shall be presumed
to | 8 | | be inadmissible as
evidence against the
accused in any
criminal
| 9 | | proceeding in which the accused is charged with the commission | 10 | | of an offense that is a Class 1 felony, Class X felony, or | 11 | | first degree murder under the Criminal Code of 1961 brought | 12 | | under Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, or 9-3.3
of | 13 | | the Criminal Code of 1961 or under clause (d)(1)(F) of Section | 14 | | 11-501 of the Illinois Vehicle Code
unless:
| 15 | | (1) an electronic recording
is made of the custodial | 16 | | interrogation; and
| 17 | | (2) the recording is substantially accurate and not | 18 | | intentionally altered.
| 19 | | (c) Every electronic recording required under this Section
| 20 | | must be preserved
until such time as the
defendant's conviction
| 21 | | for any
offense relating to the statement is final and all | 22 | | direct and habeas corpus
appeals are
exhausted,
or the | 23 | | prosecution of such offenses is barred by law.
| 24 | | (d) If the court finds, by a preponderance of the evidence, | 25 | | that the
defendant
was
subjected to a custodial interrogation | 26 | | in violation of this Section, then any
statements made
by the
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| 1 | | defendant during or following that non-recorded custodial | 2 | | interrogation, even
if
otherwise in compliance with this | 3 | | Section, are presumed to be inadmissible in
any criminal
| 4 | | proceeding against the defendant except for the purposes of | 5 | | impeachment.
| 6 | | (e) Nothing in this Section precludes the admission (i) of | 7 | | a statement made
by the
accused in open court at his or her | 8 | | trial, before a grand jury, or at
a preliminary hearing, (ii)
| 9 | | of a
statement made during a
custodial interrogation that was | 10 | | not recorded as required by
this
Section, because electronic | 11 | | recording was not feasible, (iii) of a
voluntary
statement,
| 12 | | whether or not the result of a custodial interrogation, that | 13 | | has a bearing on
the
credibility of the accused as a witness,
| 14 | | (iv) of a spontaneous statement that is
not made in response to | 15 | | a question,
(v) of a statement made after questioning that is | 16 | | routinely
asked during the processing of the arrest of the | 17 | | suspect, (vi) of a statement
made
during a custodial | 18 | | interrogation by a suspect who requests, prior to making the
| 19 | | statement, to respond to the
interrogator's questions only if
| 20 | | an electronic recording is not made of the statement, provided | 21 | | that an
electronic
recording is made of the statement of | 22 | | agreeing to respond to
the interrogator's question, only if a | 23 | | recording is not made of the statement,
(vii) of a
statement | 24 | | made
during a custodial
interrogation that is conducted | 25 | | out-of-state, (viii)
(blank) of a statement
given at a time | 26 | | when the interrogators are unaware that a death has in fact
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| 1 | | occurred , or (ix) of any other
statement that may be
admissible | 2 | | under law. The State shall bear the burden of proving, by a
| 3 | | preponderance of the evidence, that one of the exceptions | 4 | | described in this
subsection (e) is
applicable.
Nothing in
this | 5 | | Section precludes the admission of a statement, otherwise | 6 | | inadmissible
under
this Section, that is used only for | 7 | | impeachment and not as substantive
evidence.
| 8 | | (f) The presumption of inadmissibility of a statement made | 9 | | by a suspect at
a custodial interrogation at a police station | 10 | | or other place of detention may
be overcome by a preponderance | 11 | | of the evidence
that
the statement was voluntarily given and is | 12 | | reliable, based on the totality of
the
circumstances.
| 13 | | (g) Any electronic recording of any statement made by an | 14 | | accused during a
custodial interrogation that is compiled by | 15 | | any law enforcement agency as
required by this Section for the | 16 | | purposes of fulfilling the requirements of
this
Section shall | 17 | | be confidential and exempt from public inspection and copying, | 18 | | as
provided under Section 7 of the Freedom of Information Act, | 19 | | and the information
shall not be transmitted to anyone except | 20 | | as needed to comply with this
Section.
| 21 | | (Source: P.A. 93-206, eff. 7-18-05; 93-517, eff. 8-6-05; | 22 | | 94-117, eff. 7-5-05.)".
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