Sen. Patricia Van Pelt

Filed: 5/4/2016

 

 


 

 


 
09900SB2370sam003LRB099 18370 SLF 48119 a

1
AMENDMENT TO SENATE BILL 2370

2    AMENDMENT NO. ______. Amend Senate Bill 2370, AS AMENDED,
3by replacing everything after the enacting clause with the
4following:
 
5    "Section 5. The Counties Code is amended by changing
6Section 3-4006 as follows:
 
7    (55 ILCS 5/3-4006)  (from Ch. 34, par. 3-4006)
8    Sec. 3-4006. Duties of public defender. The Public
9Defender, as directed by the court, shall act as attorney,
10without fee, before any court within any county for all persons
11who are held in custody or who are charged with the commission
12of any criminal offense, and who the court finds are unable to
13employ counsel.
14    The Public Defender shall be the attorney, without fee,
15when so appointed by the court under Section 1-20 of the
16Juvenile Court Act or Section 1-5 of the Juvenile Court Act of

 

 

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11987 or by any court under Section 5(b) of the Parental Notice
2of Abortion Act of 1983 for any party who the court finds is
3financially unable to employ counsel.
4    In cases subject to Section 5-170 of the Juvenile Court Act
5of 1987 involving a minor who was under 15 years of age at the
6time of the commission of the offense, that occurs in a county
7with a full-time public defender office, a public defender,
8without fee or appointment, may represent and have access to a
9minor during a custodial interrogation. In cases subject to
10Section 5-170 of the Juvenile Court Act of 1987 involving a
11minor who was under 15 years of age at the time of the
12commission of the offense, that occurs in a county without a
13full-time public defender, the law enforcement agency
14conducting the custodial interrogation shall ensure that the
15minor is able to consult with an attorney who is under contract
16with the county to provide public defender services.
17Representation by the public defender shall terminate at the
18first court appearance if the court determines that the minor
19is not indigent.
20    Every court shall, with the consent of the defendant and
21where the court finds that the rights of the defendant would be
22prejudiced by the appointment of the public defender, appoint
23counsel other than the public defender, except as otherwise
24provided in Section 113-3 of the "Code of Criminal Procedure of
251963". That counsel shall be compensated as is provided by law.
26He shall also, in the case of the conviction of any such

 

 

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1person, prosecute any proceeding in review which in his
2judgment the interests of justice require.
3(Source: P.A. 86-962.)
 
4    Section 10. The Juvenile Court Act of 1987 is amended by
5changing Sections 5-170 and 5-401.5 as follows:
 
6    (705 ILCS 405/5-170)
7    Sec. 5-170. Representation by counsel.
8    (a) In a proceeding under this Article, a minor who was
9under 15 13 years of age at the time of the commission of an act
10that if committed by an adult would be a violation of Section
119-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, 9-3.3, 11-1.20, 11-1.30,
1211-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 12-14.1, 12-15, or
1312-16 of the Criminal Code of 1961 or the Criminal Code of 2012
14must be represented by counsel throughout during the entire
15custodial interrogation of the minor.
16    (b) In a judicial proceeding under this Article, a minor
17may not waive the right to the assistance of counsel in his or
18her defense.
19(Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
 
20    (705 ILCS 405/5-401.5)
21    Sec. 5-401.5. When statements by minor may be used.
22    (a) In this Section, "custodial interrogation" means any
23interrogation (i) during which a reasonable person in the

 

 

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1subject's position would consider himself or herself to be in
2custody and (ii) during which a question is asked that is
3reasonably likely to elicit an incriminating response.
4    In this Section, "electronic recording" includes motion
5picture, audiotape, videotape, or digital recording.
6    In this Section, "place of detention" means a building or a
7police station that is a place of operation for a municipal
8police department or county sheriff department or other law
9enforcement agency at which persons are or may be held in
10detention in connection with criminal charges against those
11persons or allegations that those persons are delinquent
12minors.
13    (a-5) An oral, written, or sign language statement of a
14minor, who at the time of the commission of the offense was
15under 18 years of age, is presumed to be involuntarily made
16when the statement is obtained from the minor while the minor
17is subject to custodial interrogation by a law enforcement
18officer, State's Attorney, juvenile officer, or other public
19official or employee prior to the officer, State's Attorney,
20public official, or employee:
21        (1) continuously reads to the minor, in its entirety
22    and without stopping for purposes of a response from the
23    minor or verifying comprehension, the following statement:
24    "You have the right to remain silent. That means you do not
25    have to say anything. Anything you do say can be used
26    against you in court. You have the right to get help from a

 

 

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1    lawyer. If you cannot pay for a lawyer, the court will get
2    you one for free. You can ask for a lawyer at any time. You
3    have the right to stop this interview at any time."; and
4        (2) after reading the statement required by paragraph
5    (1) of this subsection (a-5), the public official or
6    employee shall ask the minor the following questions and
7    wait for the minor's response to each question:
8            (A) "Do you want to have a lawyer?"
9            (B) "Do you want to talk to me?"
10    (b) An oral, written, or sign language statement of a minor
11who, at the time of the commission of the offense was under the
12age of 18 years, made as a result of a custodial interrogation
13conducted at a police station or other place of detention on or
14after the effective date of this amendatory Act of the 99th
1593rd General Assembly shall be presumed to be inadmissible as
16evidence against the minor in any criminal proceeding or
17juvenile court proceeding, for an act that if committed by an
18adult would be a misdemeanor offense under Article 11 of the
19Criminal Code of 2012 or any felony offense brought under
20Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, or 9-3.3, of the
21Criminal Code of 1961 or the Criminal Code of 2012, or under
22clause (d)(1)(F) of Section 11-501 of the Illinois Vehicle Code
23unless:
24        (1) an electronic recording is made of the custodial
25    interrogation; and
26        (2) the recording is substantially accurate and not

 

 

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1    intentionally altered.
2    (b-5) (Blank). Under the following circumstances, an oral,
3written, or sign language statement of a minor who, at the time
4of the commission of the offense was under the age of 17 years,
5made as a result of a custodial interrogation conducted at a
6police station or other place of detention shall be presumed to
7be inadmissible as evidence against the minor, unless an
8electronic recording is made of the custodial interrogation and
9the recording is substantially accurate and not intentionally
10altered:
11        (1) in any criminal proceeding or juvenile court
12    proceeding, for an act that if committed by an adult would
13    be brought under Section 11-1.40 or 20-1.1 of the Criminal
14    Code of 1961 or the Criminal Code of 2012, if the custodial
15    interrogation was conducted on or after June 1, 2014;
16        (2) in any criminal proceeding or juvenile court
17    proceeding, for an act that if committed by an adult would
18    be brought under Section 10-2, 18-4, or 19-6 of the
19    Criminal Code of 1961 or the Criminal Code of 2012, if the
20    custodial interrogation was conducted on or after June 1,
21    2015; and
22        (3) in any criminal proceeding or juvenile court
23    proceeding, for an act that if committed by an adult would
24    be brought under Section 11-1.30 or 18-2 or subsection (e)
25    of Section 12-3.05 of the Criminal Code of 1961 or the
26    Criminal Code of 2012, if the custodial interrogation was

 

 

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

 

 

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

 

 

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

 

 

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1instant offense, as part of any behavioral health screening,
2assessment, evaluation, or treatment, whether or not
3court-ordered, shall not be admissible as evidence against the
4minor on the issue of guilt only in the instant juvenile court
5proceeding. The provisions of this subsection (h) are in
6addition to and do not override any existing statutory and
7constitutional prohibition on the admission into evidence in
8delinquency proceedings of information obtained during
9screening, assessment, or treatment.
10    (i) The changes made to this Section by Public Act 98-61
11apply to statements of a minor made on or after January 1, 2014
12(the effective date of Public Act 98-61).
13(Source: P.A. 97-1150, eff. 1-25-13; 98-61, eff. 1-1-14;
1498-547, eff. 1-1-14; 98-756, eff. 7-16-14.)
 
15    Section 15. The Code of Criminal Procedure of 1963 is
16amended by changing Section 103-2.1 as follows:
 
17    (725 ILCS 5/103-2.1)
18    Sec. 103-2.1. When statements by accused may be used.
19    (a) In this Section, "custodial interrogation" means any
20interrogation during which (i) a reasonable person in the
21subject's position would consider himself or herself to be in
22custody and (ii) during which a question is asked that is
23reasonably likely to elicit an incriminating response.
24    In this Section, "place of detention" means a building or a

 

 

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1police station that is a place of operation for a municipal
2police department or county sheriff department or other law
3enforcement agency, not a courthouse, that is owned or operated
4by a law enforcement agency at which persons are or may be held
5in detention in connection with criminal charges against those
6persons.
7    In this Section, "electronic recording" includes motion
8picture, audiotape, or videotape, or digital recording.
9    (a-5) An oral, written, or sign language statement of a
10minor, who at the time of the commission of the offense was
11under 18 years of age, is presumed to be involuntarily made
12when the statement is obtained from the minor while the minor
13is subject to custodial interrogation by a law enforcement
14officer, State's Attorney, juvenile officer, or other public
15official or employee prior to the officer, State's Attorney,
16public official, or employee:
17        (1) continuously reads to the minor, in its entirety
18    and without stopping for purposes of a response from the
19    minor or verifying comprehension, the following statement:
20    "You have the right to remain silent. That means you do not
21    have to say anything. Anything you do say can be used
22    against you in court. You have the right to get help from a
23    lawyer. If you cannot pay for a lawyer, the court will get
24    you one for free. You can ask for a lawyer at any time. You
25    have the right to stop this interview at any time."; and
26        (2) after reading the statement required by paragraph

 

 

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1    (1) of this subsection (a-5), the public official or
2    employee shall ask the minor the following questions and
3    wait for the minor's response to each question:
4            (A) "Do you want to have a lawyer?"
5            (B) "Do you want to talk to me?"
6    (a-10) An oral, written, or sign language statement of a
7minor, who at the time of the commission of the offense was
8under 18 years of age, made as a result of a custodial
9interrogation conducted at a police station or other place of
10detention on or after the effective date of this amendatory Act
11of the 99th General Assembly shall be presumed to be
12inadmissible as evidence in a criminal proceeding or a juvenile
13court proceeding for an act that if committed by an adult would
14be a misdemeanor offense under Article 11 of the Criminal Code
15of 2012 or a felony offense under the Criminal Code of 2012
16unless:
17        (1) an electronic recording is made of the custodial
18    interrogation; and
19        (2) the recording is substantially accurate and not
20    intentionally altered.
21    (b) An oral, written, or sign language statement of an
22accused made as a result of a custodial interrogation conducted
23at a police station or other place of detention shall be
24presumed to be inadmissible as evidence against the accused in
25any criminal proceeding brought under Section 9-1, 9-1.2, 9-2,
269-2.1, 9-3, 9-3.2, or 9-3.3 of the Criminal Code of 1961 or the

 

 

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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.

 

 

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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    (c) Every electronic recording made under this Section must
15be preserved until such time as the defendant's conviction for
16any offense relating to the statement is final and all direct
17and habeas corpus appeals are exhausted, or the prosecution of
18such offenses is barred by law.
19    (d) If the court finds, by a preponderance of the evidence,
20that the defendant was subjected to a custodial interrogation
21in violation of this Section, then any statements made by the
22defendant during or following that non-recorded custodial
23interrogation, even if otherwise in compliance with this
24Section, are presumed to be inadmissible in any criminal
25proceeding against the defendant except for the purposes of
26impeachment.

 

 

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1    (e) Nothing in this Section precludes the admission (i) of
2a statement made by the accused in open court at his or her
3trial, before a grand jury, or at a preliminary hearing, (ii)
4of a statement made during a custodial interrogation that was
5not recorded as required by this Section, because electronic
6recording was not feasible, (iii) of a voluntary statement,
7whether or not the result of a custodial interrogation, that
8has a bearing on the credibility of the accused as a witness,
9(iv) of a spontaneous statement that is not made in response to
10a question, (v) of a statement made after questioning that is
11routinely asked during the processing of the arrest of the
12suspect, (vi) of a statement made during a custodial
13interrogation by a suspect who requests, prior to making the
14statement, to respond to the interrogator's questions only if
15an electronic recording is not made of the statement, provided
16that an electronic recording is made of the statement of
17agreeing to respond to the interrogator's question, only if a
18recording is not made of the statement, (vii) of a statement
19made during a custodial interrogation that is conducted
20out-of-state, (viii) of a statement given in violation of
21subsection (b) at a time when the interrogators are unaware
22that a death has in fact occurred, (ix) of a statement given in
23violation of subsection (b-5) at a time when the interrogators
24are unaware of facts and circumstances that would create
25probable cause to believe that the accused committed an offense
26required to be recorded under subsection (b-5), or (x) of any

 

 

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1other statement that may be admissible under law. The State
2shall bear the burden of proving, by a preponderance of the
3evidence, that one of the exceptions described in this
4subsection (e) is applicable. Nothing in this Section precludes
5the admission of a statement, otherwise inadmissible under this
6Section, that is used only for impeachment and not as
7substantive evidence.
8    (f) The presumption of inadmissibility of a statement made
9by a suspect at a custodial interrogation at a police station
10or other place of detention may be overcome by a preponderance
11of the evidence that the statement was voluntarily given and is
12reliable, based on the totality of the circumstances.
13    (g) Any electronic recording of any statement made by an
14accused during a custodial interrogation that is compiled by
15any law enforcement agency as required by this Section for the
16purposes of fulfilling the requirements of this Section shall
17be confidential and exempt from public inspection and copying,
18as provided under Section 7 of the Freedom of Information Act,
19and the information shall not be transmitted to anyone except
20as needed to comply with this Section.
21(Source: P.A. 97-1150, eff. 1-25-13; 98-547, eff. 1-1-14.)".