Sen. Patricia Van Pelt

Filed: 4/1/2016

 

 


 

 


 
09900SB2370sam002LRB099 18370 SLF 46983 a

1
AMENDMENT TO SENATE BILL 2370

2    AMENDMENT NO. ______. Amend Senate Bill 2370 by replacing
3everything after the enacting clause with the following:
 
4    "Section 1. The Counties Code is amended by changing
5Section 3-4006 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

 

 

09900SB2370sam002- 2 -LRB099 18370 SLF 46983 a

1of Abortion Act of 1983 for any party who the court finds is
2financially unable to employ counsel.
3    In a homicide case involving a minor who was at least 13
4years of age but not older than 17 years of age at the time of
5commission of the offense, that occurs in a county with a
6full-time public defender office, a public defender, without
7fee or appointment, may represent and have access to a minor
8during a custodial interrogation. In a homicide case involving
9a minor who was at least 13 years of age but not older than 17
10years of age at the time of commission of the offense, that
11occurs in a county that does not have a full-time public
12defender, the law enforcement agency conducting the custodial
13interrogation shall ensure that the minor is able to consult
14with an attorney who is under contract with the county to
15provide public defender services. Representation by the public
16defender shall terminate at the first court appearance if the
17court determines that the minor is not indigent.
18    Every court shall, with the consent of the defendant and
19where the court finds that the rights of the defendant would be
20prejudiced by the appointment of the public defender, appoint
21counsel other than the public defender, except as otherwise
22provided in Section 113-3 of the "Code of Criminal Procedure of
231963". That counsel shall be compensated as is provided by law.
24He shall also, in the case of the conviction of any such
25person, prosecute any proceeding in review which in his
26judgment the interests of justice require.

 

 

09900SB2370sam002- 3 -LRB099 18370 SLF 46983 a

1(Source: P.A. 86-962.)
 
2    Section 5. The Juvenile Court Act of 1987 is amended by
3changing Sections 5-170 and 5-401.5 as follows:
 
4    (705 ILCS 405/5-170)
5    Sec. 5-170. Representation by counsel.
6    (a) In a proceeding under this Article, a minor who was
7under 13 years of age at the time of the commission of an act
8that if committed by an adult would be a violation of Section
99-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, 9-3.3, 11-1.20, 11-1.30,
1011-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 12-14.1, 12-15, or
1112-16 of the Criminal Code of 1961 or the Criminal Code of 2012
12must be represented by counsel throughout during the entire
13custodial interrogation of the minor.
14    (a-5) In a proceeding under this Article, a minor who was
15at least 13 years of age but not older than 17 years of age at
16the time of the commission of an act that if committed by an
17adult would be a violation of Section 9-1, 9-1.2, 9-2, 9-2.1,
189-3, 9-3.2, or 9-3.3 of the Criminal Code of 2012 must be
19represented by counsel throughout the entire custodial
20interrogation of the minor.
21    (b) In a judicial proceeding under this Article, a minor
22may not waive the right to the assistance of counsel in his or
23her defense.
24(Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
 

 

 

09900SB2370sam002- 4 -LRB099 18370 SLF 46983 a

1    (705 ILCS 405/5-401.5)
2    Sec. 5-401.5. When statements by minor may be used.
3    (a) In this Section, "custodial interrogation" means any
4interrogation (i) during which a reasonable person in the
5subject's position would consider himself or herself to be in
6custody and (ii) during which a question is asked that is
7reasonably likely to elicit an incriminating response.
8    In this Section, "electronic recording" includes motion
9picture, audiotape, videotape, or digital recording.
10    In this Section, "place of detention" means a building or a
11police station that is a place of operation for a municipal
12police department or county sheriff department or other law
13enforcement agency at which persons are or may be held in
14detention in connection with criminal charges against those
15persons or allegations that those persons are delinquent
16minors.
17    (b) An oral, written, or sign language statement of a minor
18who, at the time of the commission of the offense was under the
19age of 18 years, made as a result of a custodial interrogation
20conducted at a police station or other place of detention on or
21after the effective date of this amendatory Act of the 93rd
22General Assembly shall be presumed to be inadmissible as
23evidence against the minor in any criminal proceeding or
24juvenile court proceeding, for an act that if committed by an
25adult would be brought under Section 9-1, 9-1.2, 9-2, 9-2.1,

 

 

09900SB2370sam002- 5 -LRB099 18370 SLF 46983 a

19-3, 9-3.2, or 9-3.3, of the Criminal Code of 1961 or the
2Criminal Code of 2012, or under clause (d)(1)(F) of Section
311-501 of the Illinois Vehicle Code unless:
4        (1) an electronic recording is made of the custodial
5    interrogation; and
6        (2) the recording is substantially accurate and not
7    intentionally altered.
8    (b-5) Under the following circumstances, an oral, written,
9or sign language statement of a minor who, at the time of the
10commission of the offense was under the age of 17 years, made
11as a result of a custodial interrogation conducted at a police
12station or other place of detention shall be presumed to be
13inadmissible as evidence against the minor, unless an
14electronic recording is made of the custodial interrogation and
15the recording is substantially accurate and not intentionally
16altered:
17        (1) in any criminal proceeding or juvenile court
18    proceeding, for an act that if committed by an adult would
19    be brought under Section 11-1.40 or 20-1.1 of the Criminal
20    Code of 1961 or the Criminal Code of 2012, if the custodial
21    interrogation was conducted on or after June 1, 2014;
22        (2) in any criminal proceeding or juvenile court
23    proceeding, for an act that if committed by an adult would
24    be brought under Section 10-2, 18-4, or 19-6 of the
25    Criminal Code of 1961 or the Criminal Code of 2012, if the
26    custodial interrogation was conducted on or after June 1,

 

 

09900SB2370sam002- 6 -LRB099 18370 SLF 46983 a

1    2015; and
2        (3) in any criminal proceeding or juvenile court
3    proceeding, for an act that if committed by an adult would
4    be brought under Section 11-1.30 or 18-2 or subsection (e)
5    of Section 12-3.05 of the Criminal Code of 1961 or the
6    Criminal Code of 2012, if the custodial interrogation was
7    conducted on or after June 1, 2016.
8    (b-10) If, during the course of an electronically recorded
9custodial interrogation conducted under this Section of a minor
10who, at the time of the commission of the offense was under the
11age of 17 years, the minor makes a statement that creates a
12reasonable suspicion to believe the minor has committed an act
13that if committed by an adult would be an offense other than an
14offense required to be recorded under subsection (b) or (b-5),
15the interrogators may, without the minor's consent, continue to
16record the interrogation as it relates to the other offense
17notwithstanding any provision of law to the contrary. Any oral,
18written, or sign language statement of a minor made as a result
19of an interrogation under this subsection shall be presumed to
20be inadmissible as evidence against the minor in any criminal
21proceeding or juvenile court proceeding, unless the recording
22is substantially accurate and not intentionally altered.
23    (c) Every electronic recording made under this Section must
24be preserved until such time as the minor's adjudication for
25any offense relating to the statement is final and all direct
26and habeas corpus appeals are exhausted, or the prosecution of

 

 

09900SB2370sam002- 7 -LRB099 18370 SLF 46983 a

1such offenses is barred by law.
2    (d) If the court finds, by a preponderance of the evidence,
3that the minor was subjected to a custodial interrogation in
4violation of this Section, then any statements made by the
5minor during or following that non-recorded custodial
6interrogation, even if otherwise in compliance with this
7Section, are presumed to be inadmissible in any criminal
8proceeding or juvenile court proceeding against the minor
9except for the purposes of impeachment.
10    (d-5) An oral, written, or sign language statement of a
11minor made without counsel present throughout the entire
12custodial interrogation of the minor in violation of
13subsections (a) or (a-5) of Section 5-170 of this Act shall be
14inadmissible as evidence against the minor in any juvenile
15court proceeding or criminal proceeding.
16    (e) Nothing in this Section precludes the admission (i) of
17a statement made by the minor in open court in any criminal
18proceeding or juvenile court proceeding, before a grand jury,
19or at a preliminary hearing, (ii) of a statement made during a
20custodial interrogation that was not recorded as required by
21this Section because electronic recording was not feasible,
22(iii) of a voluntary statement, whether or not the result of a
23custodial interrogation, that has a bearing on the credibility
24of the accused as a witness, (iv) of a spontaneous statement
25that is not made in response to a question, (v) of a statement
26made after questioning that is routinely asked during the

 

 

09900SB2370sam002- 8 -LRB099 18370 SLF 46983 a

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

 

 

09900SB2370sam002- 9 -LRB099 18370 SLF 46983 a

1of the evidence that the statement was voluntarily given and is
2reliable, based on the totality of the circumstances.
3    (g) Any electronic recording of any statement made by a
4minor during a custodial interrogation that is compiled by any
5law enforcement agency as required by this Section for the
6purposes of fulfilling the requirements of this Section shall
7be confidential and exempt from public inspection and copying,
8as provided under Section 7 of the Freedom of Information Act,
9and the information shall not be transmitted to anyone except
10as needed to comply with this Section.
11    (h) A statement, admission, confession, or incriminating
12information made by or obtained from a minor related to the
13instant offense, as part of any behavioral health screening,
14assessment, evaluation, or treatment, whether or not
15court-ordered, shall not be admissible as evidence against the
16minor on the issue of guilt only in the instant juvenile court
17proceeding. The provisions of this subsection (h) are in
18addition to and do not override any existing statutory and
19constitutional prohibition on the admission into evidence in
20delinquency proceedings of information obtained during
21screening, assessment, or treatment.
22    (i) The changes made to this Section by Public Act 98-61
23apply to statements of a minor made on or after January 1, 2014
24(the effective date of Public Act 98-61).
25(Source: P.A. 97-1150, eff. 1-25-13; 98-61, eff. 1-1-14;
2698-547, eff. 1-1-14; 98-756, eff. 7-16-14.)
 

 

 

09900SB2370sam002- 10 -LRB099 18370 SLF 46983 a

1    Section 10. The Code of Criminal Procedure of 1963 is
2amended by changing Section 103-2.1 as follows:
 
3    (725 ILCS 5/103-2.1)
4    Sec. 103-2.1. When statements by accused may be used.
5    (a) In this Section, "custodial interrogation" means any
6interrogation during which (i) a reasonable person in the
7subject's position would consider himself or herself to be in
8custody and (ii) during which a question is asked that is
9reasonably likely to elicit an incriminating response.
10    In this Section, "place of detention" means a building or a
11police station that is a place of operation for a municipal
12police department or county sheriff department or other law
13enforcement agency, not a courthouse, that is owned or operated
14by a law enforcement agency at which persons are or may be held
15in detention in connection with criminal charges against those
16persons.
17    In this Section, "electronic recording" includes motion
18picture, audiotape, or videotape, or digital recording.
19    (b) An oral, written, or sign language statement of an
20accused made as a result of a custodial interrogation conducted
21at a police station or other place of detention shall be
22presumed to be inadmissible as evidence against the accused in
23any criminal proceeding brought under Section 9-1, 9-1.2, 9-2,
249-2.1, 9-3, 9-3.2, or 9-3.3 of the Criminal Code of 1961 or the

 

 

09900SB2370sam002- 11 -LRB099 18370 SLF 46983 a

1Criminal Code of 2012 or under clause (d)(1)(F) of Section
211-501 of the Illinois Vehicle Code unless:
3        (1) an electronic recording is made of the custodial
4    interrogation; and
5        (2) the recording is substantially accurate and not
6    intentionally altered.
7    (b-5) Under the following circumstances, an oral, written,
8or sign language statement of an accused made as a result of a
9custodial interrogation conducted at a police station or other
10place of detention shall be presumed to be inadmissible as
11evidence against the accused, unless an electronic recording is
12made of the custodial interrogation and the recording is
13substantially accurate and not intentionally altered:
14        (1) in any criminal proceeding brought under Section
15    11-1.40 or 20-1.1 of the Criminal Code of 1961 or the
16    Criminal Code of 2012, if the custodial interrogation was
17    conducted on or after June 1, 2014;
18        (2) in any criminal proceeding brought under Section
19    10-2, 18-4, or 19-6 of the Criminal Code of 1961 or the
20    Criminal Code of 2012, if the custodial interrogation was
21    conducted on or after June 1, 2015; and
22        (3) in any criminal proceeding brought under Section
23    11-1.30 or 18-2 or subsection (e) of Section 12-3.05 of the
24    Criminal Code of 1961 or the Criminal Code of 2012, if the
25    custodial interrogation was conducted on or after June 1,
26    2016.

 

 

09900SB2370sam002- 12 -LRB099 18370 SLF 46983 a

1    (b-10) If, during the course of an electronically recorded
2custodial interrogation conducted under this Section, the
3accused makes a statement that creates a reasonable suspicion
4to believe the accused has committed an offense other than an
5offense required to be recorded under subsection (b) or (b-5),
6the interrogators may, without the accused's consent, continue
7to record the interrogation as it relates to the other offense
8notwithstanding any provision of law to the contrary. Any oral,
9written, or sign language statement of an accused made as a
10result of an interrogation under this subsection shall be
11presumed to be inadmissible as evidence against the accused in
12any criminal proceeding, unless the recording is substantially
13accurate and not intentionally altered.
14    (b-15) An oral, written, or sign language statement of a
15minor made without counsel present throughout the entire
16custodial interrogation of the minor in violation of
17subsections (a) or (a-5) of Section 5-170 of the Juvenile Court
18Act of 1987 shall be inadmissible as evidence against the minor
19in a criminal proceeding brought under the Criminal Code of
202012.
21    (c) Every electronic recording made under this Section must
22be preserved until such time as the defendant's conviction for
23any offense relating to the statement is final and all direct
24and habeas corpus appeals are exhausted, or the prosecution of
25such offenses is barred by law.
26    (d) If the court finds, by a preponderance of the evidence,

 

 

09900SB2370sam002- 13 -LRB099 18370 SLF 46983 a

1that the defendant was subjected to a custodial interrogation
2in violation of this Section, then any statements made by the
3defendant during or following that non-recorded custodial
4interrogation, even if otherwise in compliance with this
5Section, are presumed to be inadmissible in any criminal
6proceeding against the defendant except for the purposes of
7impeachment.
8    (e) Nothing in this Section precludes the admission (i) of
9a statement made by the accused in open court at his or her
10trial, before a grand jury, or at a preliminary hearing, (ii)
11of a statement made during a custodial interrogation that was
12not recorded as required by this Section, because electronic
13recording was not feasible, (iii) of a voluntary statement,
14whether or not the result of a custodial interrogation, that
15has a bearing on the credibility of the accused as a witness,
16(iv) of a spontaneous statement that is not made in response to
17a question, (v) of a statement made after questioning that is
18routinely asked during the processing of the arrest of the
19suspect, (vi) of a statement made during a custodial
20interrogation by a suspect who requests, prior to making the
21statement, to respond to the interrogator's questions only if
22an electronic recording is not made of the statement, provided
23that an electronic recording is made of the statement of
24agreeing to respond to the interrogator's question, only if a
25recording is not made of the statement, (vii) of a statement
26made during a custodial interrogation that is conducted

 

 

09900SB2370sam002- 14 -LRB099 18370 SLF 46983 a

1out-of-state, (viii) of a statement given in violation of
2subsection (b) at a time when the interrogators are unaware
3that a death has in fact occurred, (ix) of a statement given in
4violation of subsection (b-5) at a time when the interrogators
5are unaware of facts and circumstances that would create
6probable cause to believe that the accused committed an offense
7required to be recorded under subsection (b-5), or (x) of any
8other statement that may be admissible under law. The State
9shall bear the burden of proving, by a preponderance of the
10evidence, that one of the exceptions described in this
11subsection (e) is applicable. Nothing in this Section precludes
12the admission of a statement, otherwise inadmissible under this
13Section, that is used only for impeachment and not as
14substantive evidence.
15    (f) The presumption of inadmissibility of a statement made
16by a suspect at a custodial interrogation at a police station
17or other place of detention may be overcome by a preponderance
18of the evidence that the statement was voluntarily given and is
19reliable, based on the totality of the circumstances.
20    (g) Any electronic recording of any statement made by an
21accused during a custodial interrogation that is compiled by
22any law enforcement agency as required by this Section for the
23purposes of fulfilling the requirements of this Section shall
24be confidential and exempt from public inspection and copying,
25as provided under Section 7 of the Freedom of Information Act,
26and the information shall not be transmitted to anyone except

 

 

09900SB2370sam002- 15 -LRB099 18370 SLF 46983 a

1as needed to comply with this Section.
2(Source: P.A. 97-1150, eff. 1-25-13; 98-547, eff. 1-1-14.)".