SB2370 EngrossedLRB099 18370 SLF 44404 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 Counties Code is amended by changing Section
53-4006 as follows:
 
6    (55 ILCS 5/3-4006)  (from Ch. 34, par. 3-4006)
7    Sec. 3-4006. Duties of public defender. The Public
8Defender, as directed by the court, shall act as attorney,
9without fee, before any court within any county for all persons
10who are held in custody or who are charged with the commission
11of any criminal offense, and who the court finds are unable to
12employ counsel.
13    The Public Defender shall be the attorney, without fee,
14when so appointed by the court under Section 1-20 of the
15Juvenile Court Act or Section 1-5 of the Juvenile Court Act of
161987 or by any court under Section 5(b) of the Parental Notice
17of Abortion Act of 1983 for any party who the court finds is
18financially unable to employ counsel.
19    In cases subject to Section 5-170 of the Juvenile Court Act
20of 1987 involving a minor who was under 15 years of age at the
21time of the commission of the offense, that occurs in a county
22with a full-time public defender office, a public defender,
23without fee or appointment, may represent and have access to a

 

 

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1minor during a custodial interrogation. In cases subject to
2Section 5-170 of the Juvenile Court Act of 1987 involving a
3minor who was under 15 years of age at the time of the
4commission of the offense, that occurs in a county without a
5full-time public defender, the law enforcement agency
6conducting the custodial interrogation shall ensure that the
7minor is able to consult with an attorney who is under contract
8with the county to provide public defender services.
9Representation by the public defender shall terminate at the
10first court appearance if the court determines that the minor
11is not indigent.
12    Every court shall, with the consent of the defendant and
13where the court finds that the rights of the defendant would be
14prejudiced by the appointment of the public defender, appoint
15counsel other than the public defender, except as otherwise
16provided in Section 113-3 of the "Code of Criminal Procedure of
171963". That counsel shall be compensated as is provided by law.
18He shall also, in the case of the conviction of any such
19person, prosecute any proceeding in review which in his
20judgment the interests of justice require.
21(Source: P.A. 86-962.)
 
22    Section 10. The Juvenile Court Act of 1987 is amended by
23changing Sections 5-170 and 5-401.5 as follows:
 
24    (705 ILCS 405/5-170)

 

 

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1    Sec. 5-170. Representation by counsel.
2    (a) In a proceeding under this Article, a minor who was
3under 15 13 years of age at the time of the commission of an act
4that if committed by an adult would be a violation of Section
59-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, 9-3.3, 11-1.20, 11-1.30,
611-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 12-14.1, 12-15, or
712-16 of the Criminal Code of 1961 or the Criminal Code of 2012
8must be represented by counsel throughout during the entire
9custodial interrogation of the minor.
10    (b) In a judicial proceeding under this Article, a minor
11may not waive the right to the assistance of counsel in his or
12her defense.
13(Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
 
14    (705 ILCS 405/5-401.5)
15    Sec. 5-401.5. When statements by minor may be used.
16    (a) In this Section, "custodial interrogation" means any
17interrogation (i) during which a reasonable person in the
18subject's position would consider himself or herself to be in
19custody and (ii) during which a question is asked that is
20reasonably likely to elicit an incriminating response.
21    In this Section, "electronic recording" includes motion
22picture, audiotape, videotape, or digital recording.
23    In this Section, "place of detention" means a building or a
24police station that is a place of operation for a municipal
25police department or county sheriff department or other law

 

 

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1enforcement agency at which persons are or may be held in
2detention in connection with criminal charges against those
3persons or allegations that those persons are delinquent
4minors.
5    (a-5) An oral, written, or sign language statement of a
6minor, who at the time of the commission of the offense was
7under 18 years of age, is presumed to be inadmissible when the
8statement is obtained from the minor while the minor is subject
9to custodial interrogation by a law enforcement officer,
10State's Attorney, juvenile officer, or other public official or
11employee prior to the officer, State's Attorney, public
12official, or employee:
13        (1) continuously reads to the minor, in its entirety
14    and without stopping for purposes of a response from the
15    minor or verifying comprehension, the following statement:
16    "You have the right to remain silent. That means you do not
17    have to say anything. Anything you do say can be used
18    against you in court. You have the right to get help from a
19    lawyer. If you cannot pay for a lawyer, the court will get
20    you one for free. You can ask for a lawyer at any time. You
21    have the right to stop this interview at any time."; and
22        (2) after reading the statement required by paragraph
23    (1) of this subsection (a-5), the public official or
24    employee shall ask the minor the following questions and
25    wait for the minor's response to each question:
26            (A) "Do you want to have a lawyer?"

 

 

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1            (B) "Do you want to talk to me?"
2    (b) An oral, written, or sign language statement of a minor
3who, at the time of the commission of the offense was under the
4age of 18 years, made as a result of a custodial interrogation
5conducted at a police station or other place of detention on or
6after the effective date of this amendatory Act of the 99th
793rd General Assembly shall be presumed to be inadmissible as
8evidence against the minor in any criminal proceeding or
9juvenile court proceeding, for an act that if committed by an
10adult would be a misdemeanor offense under Article 11 of the
11Criminal Code of 2012 or any felony offense brought under
12Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, or 9-3.3, of the
13Criminal Code of 1961 or the Criminal Code of 2012, or under
14clause (d)(1)(F) of Section 11-501 of the Illinois Vehicle Code
15unless:
16        (1) an electronic recording is made of the custodial
17    interrogation; and
18        (2) the recording is substantially accurate and not
19    intentionally altered.
20    (b-5) (Blank). Under the following circumstances, an oral,
21written, or sign language statement of a minor who, at the time
22of the commission of the offense was under the age of 17 years,
23made as a result of a custodial interrogation conducted at a
24police station or other place of detention shall be presumed to
25be inadmissible as evidence against the minor, unless an
26electronic recording is made of the custodial interrogation and

 

 

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1the recording is substantially accurate and not intentionally
2altered:
3        (1) in any criminal proceeding or juvenile court
4    proceeding, for an act that if committed by an adult would
5    be brought under Section 11-1.40 or 20-1.1 of the Criminal
6    Code of 1961 or the Criminal Code of 2012, if the custodial
7    interrogation was conducted on or after June 1, 2014;
8        (2) in any criminal proceeding or juvenile court
9    proceeding, for an act that if committed by an adult would
10    be brought under Section 10-2, 18-4, or 19-6 of the
11    Criminal Code of 1961 or the Criminal Code of 2012, if the
12    custodial interrogation was conducted on or after June 1,
13    2015; and
14        (3) in any criminal proceeding or juvenile court
15    proceeding, for an act that if committed by an adult would
16    be brought under Section 11-1.30 or 18-2 or subsection (e)
17    of Section 12-3.05 of the Criminal Code of 1961 or the
18    Criminal Code of 2012, if the custodial interrogation was
19    conducted on or after June 1, 2016.
20    (b-10) If, during the course of an electronically recorded
21custodial interrogation conducted under this Section of a minor
22who, at the time of the commission of the offense was under the
23age of 18 17 years, the minor makes a statement that creates a
24reasonable suspicion to believe the minor has committed an act
25that if committed by an adult would be an offense other than an
26offense required to be recorded under subsection (b) or (b-5),

 

 

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1the interrogators may, without the minor's consent, continue to
2record the interrogation as it relates to the other offense
3notwithstanding any provision of law to the contrary. Any oral,
4written, or sign language statement of a minor made as a result
5of an interrogation under this subsection shall be presumed to
6be inadmissible as evidence against the minor in any criminal
7proceeding or juvenile court proceeding, unless the recording
8is substantially accurate and not intentionally altered.
9    (c) Every electronic recording made under this Section must
10be preserved until such time as the minor's adjudication for
11any offense relating to the statement is final and all direct
12and habeas corpus appeals are exhausted, or the prosecution of
13such offenses is barred by law.
14    (d) If the court finds, by a preponderance of the evidence,
15that the minor was subjected to a custodial interrogation in
16violation of this Section, then any statements made by the
17minor during or following that non-recorded custodial
18interrogation, even if otherwise in compliance with this
19Section, are presumed to be inadmissible in any criminal
20proceeding or juvenile court proceeding against the minor
21except for the purposes of impeachment.
22    (e) Nothing in this Section precludes the admission (i) of
23a statement made by the minor in open court in any criminal
24proceeding or juvenile court proceeding, before a grand jury,
25or at a preliminary hearing, (ii) of a statement made during a
26custodial interrogation that was not recorded as required by

 

 

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1this Section because electronic recording was not feasible,
2(iii) of a voluntary statement, whether or not the result of a
3custodial interrogation, that has a bearing on the credibility
4of the accused as a witness, (iv) of a spontaneous statement
5that is not made in response to a question, (v) of a statement
6made after questioning that is routinely asked during the
7processing of the arrest of the suspect, (vi) of a statement
8made during a custodial interrogation by a suspect who
9requests, prior to making the statement, to respond to the
10interrogator's questions only if an electronic recording is not
11made of the statement, provided that an electronic recording is
12made of the statement of agreeing to respond to the
13interrogator's question, only if a recording is not made of the
14statement, (vii) of a statement made during a custodial
15interrogation that is conducted out-of-state, (viii) of a
16statement given in violation of subsection (b) at a time when
17the interrogators are unaware that a death has in fact
18occurred, (ix) (blank) of a statement given in violation of
19subsection (b-5) at a time when the interrogators are unaware
20of facts and circumstances that would create probable cause to
21believe that the minor committed an act that if committed by an
22adult would be an offense required to be recorded under
23subsection (b-5), or (x) of any other statement that may be
24admissible under law. The State shall bear the burden of
25proving, by a preponderance of the evidence, that one of the
26exceptions described in this subsection (e) is applicable.

 

 

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1Nothing in this Section precludes the admission of a statement,
2otherwise inadmissible under this Section, that is used only
3for impeachment and not as substantive evidence.
4    (f) The presumption of inadmissibility of a statement made
5by a suspect at a custodial interrogation at a police station
6or other place of detention may be overcome by a preponderance
7of the evidence that the statement was voluntarily given and is
8reliable, based on the totality of the circumstances.
9    (g) Any electronic recording of any statement made by a
10minor during a custodial interrogation that is compiled by any
11law enforcement agency as required by this Section for the
12purposes of fulfilling the requirements of this Section shall
13be confidential and exempt from public inspection and copying,
14as provided under Section 7 of the Freedom of Information Act,
15and the information shall not be transmitted to anyone except
16as needed to comply with this Section.
17    (h) A statement, admission, confession, or incriminating
18information made by or obtained from a minor related to the
19instant offense, as part of any behavioral health screening,
20assessment, evaluation, or treatment, whether or not
21court-ordered, shall not be admissible as evidence against the
22minor on the issue of guilt only in the instant juvenile court
23proceeding. The provisions of this subsection (h) are in
24addition to and do not override any existing statutory and
25constitutional prohibition on the admission into evidence in
26delinquency proceedings of information obtained during

 

 

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1screening, assessment, or treatment.
2    (i) The changes made to this Section by Public Act 98-61
3apply to statements of a minor made on or after January 1, 2014
4(the effective date of Public Act 98-61).
5(Source: P.A. 97-1150, eff. 1-25-13; 98-61, eff. 1-1-14;
698-547, eff. 1-1-14; 98-756, eff. 7-16-14.)
 
7    Section 15. The Code of Criminal Procedure of 1963 is
8amended by changing Section 103-2.1 as follows:
 
9    (725 ILCS 5/103-2.1)
10    Sec. 103-2.1. When statements by accused may be used.
11    (a) In this Section, "custodial interrogation" means any
12interrogation during which (i) a reasonable person in the
13subject's position would consider himself or herself to be in
14custody and (ii) during which a question is asked that is
15reasonably likely to elicit an incriminating response.
16    In this Section, "place of detention" means a building or a
17police station that is a place of operation for a municipal
18police department or county sheriff department or other law
19enforcement agency, not a courthouse, that is owned or operated
20by a law enforcement agency at which persons are or may be held
21in detention in connection with criminal charges against those
22persons.
23    In this Section, "electronic recording" includes motion
24picture, audiotape, or videotape, or digital recording.

 

 

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1    (a-5) An oral, written, or sign language statement of a
2minor, who at the time of the commission of the offense was
3under 18 years of age, is presumed to be inadmissible when the
4statement is obtained from the minor while the minor is subject
5to custodial interrogation by a law enforcement officer,
6State's Attorney, juvenile officer, or other public official or
7employee prior to the officer, State's Attorney, public
8official, or employee:
9        (1) continuously reads to the minor, in its entirety
10    and without stopping for purposes of a response from the
11    minor or verifying comprehension, the following statement:
12    "You have the right to remain silent. That means you do not
13    have to say anything. Anything you do say can be used
14    against you in court. You have the right to get help from a
15    lawyer. If you cannot pay for a lawyer, the court will get
16    you one for free. You can ask for a lawyer at any time. You
17    have the right to stop this interview at any time."; and
18        (2) after reading the statement required by paragraph
19    (1) of this subsection (a-5), the public official or
20    employee shall ask the minor the following questions and
21    wait for the minor's response to each question:
22            (A) "Do you want to have a lawyer?"
23            (B) "Do you want to talk to me?"
24    (a-10) An oral, written, or sign language statement of a
25minor, who at the time of the commission of the offense was
26under 18 years of age, made as a result of a custodial

 

 

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1interrogation conducted at a police station or other place of
2detention on or after the effective date of this amendatory Act
3of the 99th General Assembly shall be presumed to be
4inadmissible as evidence in a criminal proceeding or a juvenile
5court proceeding for an act that if committed by an adult would
6be a misdemeanor offense under Article 11 of the Criminal Code
7of 2012 or a felony offense under the Criminal Code of 2012
8unless:
9        (1) an electronic recording is made of the custodial
10    interrogation; and
11        (2) the recording is substantially accurate and not
12    intentionally altered.
13    (b) An oral, written, or sign language statement of an
14accused made as a result of a custodial interrogation conducted
15at a police station or other place of detention shall be
16presumed to be inadmissible as evidence against the accused in
17any criminal proceeding brought under Section 9-1, 9-1.2, 9-2,
189-2.1, 9-3, 9-3.2, or 9-3.3 of the Criminal Code of 1961 or the
19Criminal Code of 2012 or under clause (d)(1)(F) of Section
2011-501 of the Illinois Vehicle Code unless:
21        (1) an electronic recording is made of the custodial
22    interrogation; and
23        (2) the recording is substantially accurate and not
24    intentionally altered.
25    (b-5) Under the following circumstances, an oral, written,
26or sign language statement of an accused made as a result of a

 

 

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1custodial interrogation conducted at a police station or other
2place of detention shall be presumed to be inadmissible as
3evidence against the accused, unless an electronic recording is
4made of the custodial interrogation and the recording is
5substantially accurate and not intentionally altered:
6        (1) in any criminal proceeding brought under Section
7    11-1.40 or 20-1.1 of the Criminal Code of 1961 or the
8    Criminal Code of 2012, if the custodial interrogation was
9    conducted on or after June 1, 2014;
10        (2) in any criminal proceeding brought under Section
11    10-2, 18-4, or 19-6 of the Criminal Code of 1961 or the
12    Criminal Code of 2012, if the custodial interrogation was
13    conducted on or after June 1, 2015; and
14        (3) in any criminal proceeding brought under Section
15    11-1.30 or 18-2 or subsection (e) of Section 12-3.05 of the
16    Criminal Code of 1961 or the Criminal Code of 2012, if the
17    custodial interrogation was conducted on or after June 1,
18    2016.
19    (b-10) If, during the course of an electronically recorded
20custodial interrogation conducted under this Section, the
21accused makes a statement that creates a reasonable suspicion
22to believe the accused has committed an offense other than an
23offense required to be recorded under subsection (b) or (b-5),
24the interrogators may, without the accused's consent, continue
25to record the interrogation as it relates to the other offense
26notwithstanding any provision of law to the contrary. Any oral,

 

 

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1written, or sign language statement of an accused made as a
2result of an interrogation under this subsection shall be
3presumed to be inadmissible as evidence against the accused in
4any criminal proceeding, unless the recording is substantially
5accurate and not intentionally altered.
6    (c) Every electronic recording made under this Section must
7be preserved until such time as the defendant's conviction for
8any offense relating to the statement is final and all direct
9and habeas corpus appeals are exhausted, or the prosecution of
10such offenses is barred by law.
11    (d) If the court finds, by a preponderance of the evidence,
12that the defendant was subjected to a custodial interrogation
13in violation of this Section, then any statements made by the
14defendant during or following that non-recorded custodial
15interrogation, even if otherwise in compliance with this
16Section, are presumed to be inadmissible in any criminal
17proceeding against the defendant except for the purposes of
18impeachment.
19    (e) Nothing in this Section precludes the admission (i) of
20a statement made by the accused in open court at his or her
21trial, before a grand jury, or at a preliminary hearing, (ii)
22of a statement made during a custodial interrogation that was
23not recorded as required by this Section, because electronic
24recording was not feasible, (iii) of a voluntary statement,
25whether or not the result of a custodial interrogation, that
26has a bearing on the credibility of the accused as a witness,

 

 

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1(iv) of a spontaneous statement that is not made in response to
2a question, (v) of a statement made after questioning that is
3routinely asked during the processing of the arrest of the
4suspect, (vi) of a statement made during a custodial
5interrogation by a suspect who requests, prior to making the
6statement, to respond to the interrogator's questions only if
7an electronic recording is not made of the statement, provided
8that an electronic recording is made of the statement of
9agreeing to respond to the interrogator's question, only if a
10recording is not made of the statement, (vii) of a statement
11made during a custodial interrogation that is conducted
12out-of-state, (viii) of a statement given in violation of
13subsection (b) at a time when the interrogators are unaware
14that a death has in fact occurred, (ix) of a statement given in
15violation of subsection (b-5) at a time when the interrogators
16are unaware of facts and circumstances that would create
17probable cause to believe that the accused committed an offense
18required to be recorded under subsection (b-5), or (x) of any
19other statement that may be admissible under law. The State
20shall bear the burden of proving, by a preponderance of the
21evidence, that one of the exceptions described in this
22subsection (e) is applicable. Nothing in this Section precludes
23the admission of a statement, otherwise inadmissible under this
24Section, that is used only for impeachment and not as
25substantive evidence.
26    (f) The presumption of inadmissibility of a statement made

 

 

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1by a suspect at a custodial interrogation at a police station
2or other place of detention may be overcome by a preponderance
3of the evidence that the statement was voluntarily given and is
4reliable, based on the totality of the circumstances.
5    (g) Any electronic recording of any statement made by an
6accused during a custodial interrogation that is compiled by
7any law enforcement agency as required by this Section for the
8purposes of fulfilling the requirements of this Section shall
9be confidential and exempt from public inspection and copying,
10as provided under Section 7 of the Freedom of Information Act,
11and the information shall not be transmitted to anyone except
12as needed to comply with this Section.
13(Source: P.A. 97-1150, eff. 1-25-13; 98-547, eff. 1-1-14.)