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91_HB4697
LRB9112862RCpkA
1 AN ACT in relation to interrogations.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Juvenile Court Act of 1987 is amended by
5 adding Section 5-401.5 as follows:
6 (705 ILCS 405/5-401.5 new)
7 Sec. 5-401.5. When statements by minor may be used.
8 (a) In this Section, a "written statement of a minor"
9 means a statement signed by the minor or a statement made by
10 the minor in his or her own handwriting or, if the minor is
11 unable to write, a statement bearing his or her mark, when
12 the mark has been witnessed by a person other than a peace
13 officer.
14 (b) No oral, written, or sign language statement of a
15 minor who, at the time of the commission of the offense, was
16 under the age of 17 years made as a result of a custodial
17 interrogation shall be admissible as evidence against the
18 minor in any proceeding under this Act in which the minor is
19 alleged to be delinquent for an act that if committed by an
20 adult would be a non-probationable felony unless:
21 (1) the minor is represented by an attorney who is
22 present at all times during the custodial interrogation;
23 (2) an electronic video and audio recording is made
24 of the custodial interrogation;
25 (3) prior to the custodial interrogation but during
26 the recording, the minor is given the following warnings:
27 i. that the minor has the right to remain
28 silent and not make any statement at all, and that
29 any statement he or she makes may be used against
30 him or her at his or her trial;
31 ii. that any statement he or she makes may be
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1 used as evidence against him or her in court;
2 iii. that he or she has the right to have an
3 attorney present to advise him or her prior to and
4 during any questioning;
5 iv. that if he or she is unable to employ an
6 attorney, he or she has the right to have an
7 attorney appointed to advise him or her prior to and
8 during any questioning; and
9 v. that he or she has the right to terminate
10 the interrogation at any time.
11 (4) prior to the statement but during the recording,
12 the minor knowingly, intelligently, and voluntarily
13 waives any rights described in paragraph (3);
14 (5) the recording device was capable of making an
15 accurate recording, the operator was competent, and the
16 recording is accurate and has not been altered;
17 (6) all voices on the recording are identified;
18 (7) not later than the 20th day before the date of
19 the proceeding, the attorney representing the minor is
20 provided with a true, complete, and accurate copy of all
21 recordings of the minor made under this Section.
22 (c) In addition to the requirements of subsection (b) of
23 this Section, no written statement made by a minor as a
24 result of a custodial interrogation is admissible as evidence
25 against him or her in any proceeding under this Act unless it
26 is shown on the face of the statement that:
27 (1) the minor, prior to making the statement,
28 received from the person to whom the statement is made a
29 warning that:
30 (A) he or she has the right to remain silent
31 and not make any statement at all and that any
32 statement he or she makes may be used against him or
33 her in any proceeding under this Act;
34 (B) any statement he or she makes may be used
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1 as evidence against him or her in court;
2 (C) he or she has the right to have an
3 attorney present to advise him or her prior to and
4 during any questioning;
5 (D) if he or she is unable to employ an
6 attorney, he or she has the right to have an
7 attorney appointed to advise the minor prior to and
8 during any questioning; and
9 (E) he or she has the right to terminate the
10 interrogation at any time.
11 (2) the minor, prior to and during the making of
12 the statement, knowingly, intelligently, and voluntarily
13 waived the rights set out in the warning prescribed by
14 item (1) of this subsection (c).
15 (d) Every electronic video and audio recording of any
16 statement made by a minor during a custodial interrogation
17 must be preserved until such time as the minor's adjudication
18 for any offense relating to the statement is final and all
19 direct and habeas corpus appeals are exhausted, or the
20 prosecution of such offenses is barred by law.
21 (e) If the minor is a deaf person, the minor's statements
22 under subsection (b) of this Section are not admissible
23 against the minor unless the warnings in subsection (b) are
24 interpreted to the deaf person by an interpreter who is
25 qualified and sworn as provided by Illinois law.
26 (f) If the minor can prove, by a preponderance of the
27 evidence, that he or she was subjected to a custodial
28 interrogation prior to the custodial interrogation that was
29 the subject of the electronic video and audio recording, and
30 if that prior custodial interrogation was not recorded as
31 required by this Section, then any statements made by the
32 minor during or following that non-recorded custodial
33 interrogation, even if otherwise in compliance with this
34 Section, are inadmissible in any criminal proceeding against
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1 the minor except for the purposes of impeachment.
2 (g) In all cases where a question is raised as to the
3 voluntariness of a statement of a minor, the court must make
4 an independent finding in the absence of the jury as to
5 whether the statement was made under voluntary conditions.
6 If the statement has been found to have been voluntarily made
7 and held admissible as a matter of law and fact by the court
8 in a hearing in the absence of the jury, the court must enter
9 an order stating its conclusion as to whether or not the
10 statement was voluntarily made, along with the specific
11 finding of facts upon which the conclusion was based, which
12 order shall be filed among the papers of the cause. The
13 order may not be exhibited to the jury nor the finding of the
14 order made known to the jury in any manner. Upon the finding
15 by the judge as a matter of law and fact that the statement
16 was voluntarily made, evidence pertaining to the matter may
17 be submitted to the jury and it shall be instructed that
18 unless a jury believes beyond a reasonable doubt that the
19 statement was voluntarily made, the jury may not consider the
20 statement for any purpose nor any evidence obtained as a
21 result of the statement. In any case in which a motion to
22 suppress the statement has been filed and evidence has been
23 submitted to the court on this issue, the court within its
24 discretion may reconsider the evidence in its finding that
25 the statement was voluntarily made and the same evidence
26 submitted to the court at the hearing on the motion to
27 suppress shall be made a part of the record the same as if it
28 were being presented at the time of trial. However, the
29 State or the minor shall be entitled to present any new
30 evidence on the issue of the voluntariness of the statement
31 prior to the court's final ruling and order stating its
32 findings.
33 (h) Nothing in this Section precludes the admission (i)
34 of a statement made by the minor in open court in any
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1 proceeding under this Act, before a grand jury, or at a
2 preliminary hearing, (ii) of a statement that is the res
3 gestae of the arrest or of the offense, (iii) of a statement
4 that does not stem from custodial interrogation, (iv) of a
5 statement made during a custodial interrogation that was not
6 electronically recorded as required by this Section, provided
7 that a court finds by clear and convincing evidence that
8 electronic recording of the minor's statements was not
9 feasible, (v) of a voluntary statement, whether or not the
10 result of custodial interrogation, that has a bearing on the
11 credibility of the accused as a witness, or (vi) of any other
12 statement that may be admissible under law. The State shall
13 bear the burden of proving, by a preponderance of the
14 evidence, that one of the exceptions described in this
15 subsection (h) is applicable, except that the State shall
16 bear the burden of proving by clear and convincing evidence
17 that the exception in subsection (iv) is applicable. Nothing
18 in this Section precludes the admission of a statement,
19 otherwise inadmissible under this Section, that is used only
20 for impeachment and not as substantive evidence.
21 Section 10. The Criminal Code of 1961 is amended by
22 changing Section 14-3 as follows:
23 (720 ILCS 5/14-3) (from Ch. 38, par. 14-3)
24 Sec. 14-3. Exemptions. The following activities shall
25 be exempt from the provisions of this Article:
26 (a) Listening to radio, wireless and television
27 communications of any sort where the same are publicly made;
28 (b) Hearing conversation when heard by employees of any
29 common carrier by wire incidental to the normal course of
30 their employment in the operation, maintenance or repair of
31 the equipment of such common carrier by wire so long as no
32 information obtained thereby is used or divulged by the
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1 hearer;
2 (c) Any broadcast by radio, television or otherwise
3 whether it be a broadcast or recorded for the purpose of
4 later broadcasts of any function where the public is in
5 attendance and the conversations are overheard incidental to
6 the main purpose for which such broadcasts are then being
7 made;
8 (d) Recording or listening with the aid of any device to
9 any emergency communication made in the normal course of
10 operations by any federal, state or local law enforcement
11 agency or institutions dealing in emergency services,
12 including, but not limited to, hospitals, clinics, ambulance
13 services, fire fighting agencies, any public utility,
14 emergency repair facility, civilian defense establishment or
15 military installation;
16 (e) Recording the proceedings of any meeting required to
17 be open by the Open Meetings Act, as amended;
18 (f) Recording or listening with the aid of any device to
19 incoming telephone calls of phone lines publicly listed or
20 advertised as consumer "hotlines" by manufacturers or
21 retailers of food and drug products. Such recordings must be
22 destroyed, erased or turned over to local law enforcement
23 authorities within 24 hours from the time of such recording
24 and shall not be otherwise disseminated. Failure on the part
25 of the individual or business operating any such recording or
26 listening device to comply with the requirements of this
27 subsection shall eliminate any civil or criminal immunity
28 conferred upon that individual or business by the operation
29 of this Section;
30 (g) With prior notification to the State's Attorney of
31 the county in which it is to occur, recording or listening
32 with the aid of any device to any conversation where a law
33 enforcement officer, or any person acting at the direction of
34 law enforcement, is a party to the conversation and has
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1 consented to it being intercepted or recorded under
2 circumstances where the use of the device is necessary for
3 the protection of the law enforcement officer or any person
4 acting at the direction of law enforcement, in the course of
5 an investigation of a forcible felony, a felony violation of
6 the Illinois Controlled Substances Act, a felony violation of
7 the Cannabis Control Act, or any "streetgang related" or
8 "gang-related" felony as those terms are defined in the
9 Illinois Streetgang Terrorism Omnibus Prevention Act. Any
10 recording or evidence derived as the result of this exemption
11 shall be inadmissible in any proceeding, criminal, civil or
12 administrative, except (i) where a party to the conversation
13 suffers great bodily injury or is killed during such
14 conversation, or (ii) when used as direct impeachment of a
15 witness concerning matters contained in the interception or
16 recording. The Director of the Department of State Police
17 shall issue regulations as are necessary concerning the use
18 of devices, retention of tape recordings, and reports
19 regarding their use;
20 (h) Recordings made simultaneously with a video
21 recording of an oral conversation between a peace officer,
22 who has identified his or her office, and a person stopped
23 for an investigation of an offense under the Illinois Vehicle
24 Code;
25 (i) Recording of a conversation made by or at the
26 request of a person, not a law enforcement officer or agent
27 of a law enforcement officer, who is a party to the
28 conversation, under reasonable suspicion that another party
29 to the conversation is committing, is about to commit, or has
30 committed a criminal offense against the person or a member
31 of his or her immediate household, and there is reason to
32 believe that evidence of the criminal offense may be obtained
33 by the recording; and
34 (j) The use of a telephone monitoring device by either
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1 (1) a corporation or other business entity engaged in
2 marketing or opinion research or (2) a corporation or other
3 business entity engaged in telephone solicitation, as defined
4 in this subsection, to record or listen to oral telephone
5 solicitation conversations or marketing or opinion research
6 conversations by an employee of the corporation or other
7 business entity when:
8 (i) the monitoring is used for the purpose of
9 service quality control of marketing or opinion research
10 or telephone solicitation, the education or training of
11 employees or contractors engaged in marketing or opinion
12 research or telephone solicitation, or internal research
13 related to marketing or opinion research or telephone
14 solicitation; and
15 (ii) the monitoring is used with the consent of at
16 least one person who is an active party to the marketing
17 or opinion research conversation or telephone
18 solicitation conversation being monitored.
19 No communication or conversation or any part, portion, or
20 aspect of the communication or conversation made, acquired,
21 or obtained, directly or indirectly, under this exemption
22 (j), may be, directly or indirectly, furnished to any law
23 enforcement officer, agency, or official for any purpose or
24 used in any inquiry or investigation, or used, directly or
25 indirectly, in any administrative, judicial, or other
26 proceeding, or divulged to any third party.
27 When recording or listening authorized by this subsection
28 (j) on telephone lines used for marketing or opinion research
29 or telephone solicitation purposes results in recording or
30 listening to a conversation that does not relate to marketing
31 or opinion research or telephone solicitation; the person
32 recording or listening shall, immediately upon determining
33 that the conversation does not relate to marketing or opinion
34 research or telephone solicitation, terminate the recording
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1 or listening and destroy any such recording as soon as is
2 practicable.
3 Business entities that use a telephone monitoring or
4 telephone recording system pursuant to this exemption (j)
5 shall provide current and prospective employees with notice
6 that the monitoring or recordings may occur during the course
7 of their employment. The notice shall include prominent
8 signage notification within the workplace.
9 Business entities that use a telephone monitoring or
10 telephone recording system pursuant to this exemption (j)
11 shall provide their employees or agents with access to
12 personal-only telephone lines which may be pay telephones,
13 that are not subject to telephone monitoring or telephone
14 recording.
15 For the purposes of this subsection (j), "telephone
16 solicitation" means a communication through the use of a
17 telephone by live operators:
18 (i) soliciting the sale of goods or services;
19 (ii) receiving orders for the sale of goods or
20 services;
21 (iii) assisting in the use of goods or services; or
22 (iv) engaging in the solicitation, administration,
23 or collection of bank or retail credit accounts.
24 For the purposes of this subsection (j), "marketing or
25 opinion research" means a marketing or opinion research
26 interview conducted by a live telephone interviewer engaged
27 by a corporation or other business entity whose principal
28 business is the design, conduct, and analysis of polls and
29 surveys measuring the opinions, attitudes, and responses of
30 respondents toward products and services, or social or
31 political issues, or both.
32 (k) Electronic recordings, including but not limited to,
33 motion picture, videotape, or other visual and audio
34 recording, made of a custodial interrogation of an individual
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1 by a law enforcement officer under Section 5-401.5 of the
2 Juvenile Court Act of 1987 or Section 103-2.1 of the Code of
3 Criminal Procedure of 1963.
4 (Source: P.A. 91-357, eff. 7-29-99.)
5 Section 15. The Code of Criminal Procedure of 1963 is
6 amended by adding Section 103-2.1 as follows:
7 (725 ILCS 5/103-2.1 new)
8 Sec. 103-2.1. When statements by accused may be used.
9 (a) In this Section, a "written statement of an accused"
10 means a statement signed by the accused or a statement made
11 by the accused in his or her own handwriting or, if the
12 accused is unable to write, a statement bearing his or her
13 mark, when the mark has been witnessed by a person other than
14 a peace officer.
15 (b) No oral, written, or sign language statement of an
16 accused made as a result of a custodial interrogation shall
17 be admissible as evidence against the accused in any criminal
18 proceeding brought under Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3,
19 9-3.2, 9-3.3, 12-13, 12-14, 12-14.1, 12-15, or 12-16 of the
20 Criminal Code of 1961, unless:
21 (1) an electronic video and audio recording is made
22 of the custodial interrogation;
23 (2) prior to the custodial interrogation but during
24 the recording the accused is given the following
25 warnings:
26 (i) that the accused has the right to remain
27 silent and not make any statement at all, and that
28 any statement the accused makes may be used against
29 the accused at his or her trial;
30 (ii) that any statement the accused makes may
31 be used as evidence against the accused in court;
32 (iii) that the accused has the right to have an
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1 attorney present to advise him or her prior to and
2 during any questioning;
3 (iv) that if the accused is unable to employ an
4 attorney, he or she has the right to have an
5 attorney appointed to advise him or her prior to and
6 during any questioning; and
7 (v) that he or she has the right to terminate
8 the interrogation at any time.
9 (3) prior to the statement but during the recording,
10 the accused knowingly, intelligently, and voluntarily
11 waives the rights described in paragraph (2);
12 (4) the recording device was capable of making an
13 accurate recording, the operator was competent, and the
14 recording is accurate and has not been altered;
15 (5) all voices on the recording are identified;
16 (6) not later than the 20th day before the date of
17 the proceeding, the attorney representing the defendant
18 is provided with a true, complete, and accurate copy of
19 all recordings of the defendant made under this Section.
20 (c) In addition to the requirements of subsection (b) of
21 this Section, no written statement made by an accused as a
22 result of a custodial interrogation is admissible as evidence
23 against his or her in any criminal proceeding unless it is
24 shown on the face of the statement that:
25 (1) the accused, prior to making the statement,
26 received from the person to whom the statement is made a
27 warning that:
28 (A) he or she has the right to remain silent
29 and not make any statement at all and that any
30 statement he or she makes may be used against him or
31 her at his or her trial;
32 (B) any statement he or she makes may be used
33 as evidence against him or her in court;
34 (C) He or she has the right to have an
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1 attorney present to advise him or her prior to and
2 during any questioning;
3 (D) if he or she is unable to employ an
4 attorney, he or she has the right to have an
5 attorney appointed to advise him or her prior to and
6 during any questioning; and
7 (E) he or she has the right to terminate the
8 interrogation at any time.
9 (2) the accused, prior to and during the making of
10 the statement, knowingly, intelligently, and voluntarily
11 waived the rights set out in the warning prescribed by
12 item (1) of this subsection (c).
13 (d) Every electronic video and audio recording of any
14 statement made by an accused during a custodial interrogation
15 must be preserved until such time as the defendant's
16 conviction for any offense relating to the statement is final
17 and all direct and habeas corpus appeals are exhausted, or
18 the prosecution of such offenses is barred by law.
19 (e) If the accused is a deaf person, the accused's
20 statements under subsection (b) of this Section are not
21 admissible against the accused unless the warnings in
22 subsection (b) are interpreted to the deaf person by an
23 interpreter who is qualified and sworn as provided by
24 Illinois law.
25 (f) If the defendant can prove, by a preponderance of the
26 evidence, that he or she was subjected to a custodial
27 interrogation prior to the custodial interrogation that was
28 the subject of the electronic video and audio recording, and
29 if that prior custodial interrogation was not recorded as
30 required by this Section, then any statements made by the
31 defendant during or following that non-recorded custodial
32 interrogation, even if otherwise in compliance with this
33 Section, are inadmissible in any criminal proceeding against
34 the defendant except for the purposes of impeachment.
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1 (g) In all cases where a question is raised as to the
2 voluntariness of a statement of an accused, the court must
3 make an independent finding in the absence of the jury as to
4 whether the statement was made under voluntary conditions.
5 If the statement has been found to have been voluntarily made
6 and held admissible as a matter of law and fact by the court
7 in a hearing in the absence of the jury, the court must enter
8 an order stating its conclusion as to whether or not the
9 statement was voluntarily made, along with the specific
10 finding of facts upon which the conclusion was based, which
11 order shall be filed among the papers of the cause. The
12 order shall not be exhibited to the jury nor the finding of
13 the order made known to the jury in any manner. Upon the
14 finding by the judge as a matter of law and fact that the
15 statement was voluntarily made, evidence pertaining to the
16 matter may be submitted to the jury and it shall be
17 instructed that unless a jury believes beyond a reasonable
18 doubt that the statement was voluntarily made, the jury may
19 not consider the statement for any purpose nor any evidence
20 obtained as a result of the statement. In any case where a
21 motion to suppress the statement has been filed and evidence
22 has been submitted to the court on this issue, the court
23 within its discretion may reconsider the evidence in its
24 finding that the statement was voluntarily made and the same
25 evidence submitted to the court at the hearing on the motion
26 to suppress shall be made a part of the record the same as if
27 it were being presented at the time of trial. However, the
28 State or the defendant shall be entitled to present any new
29 evidence on the issue of the voluntariness of the statement
30 prior to the court's final ruling and order stating its
31 findings.
32 (h) Nothing in this Section precludes the admission (i)
33 of a statement made by the accused in open court at his or
34 her trial, before a grand jury, or at a preliminary hearing,
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1 (ii) of a statement that is the res gestae of the arrest or
2 of the offense, (iii) of a statement that does not stem from
3 custodial interrogation, (iv) of a statement made during a
4 custodial interrogation that was not electronically recorded
5 as required by this Section, provided that a court finds by
6 clear and convincing evidence that electronic recording of
7 the accused's statements was not feasible, (v) of a voluntary
8 statement, whether or not the result of custodial
9 interrogation, that has a bearing on the credibility of the
10 accused as a witness, or (vi) of any other statement that may
11 be admissible under law. The State shall bear the burden of
12 proving, by a preponderance of the evidence, that one of the
13 exceptions described in this subsection (h) is applicable,
14 except that the State shall bear the burden of proving by
15 clear and convincing evidence that the exception in clause
16 (iv) is applicable. Nothing in this Section precludes the
17 admission of a statement, otherwise inadmissible under this
18 Section, that is used only for impeachment and not as
19 substantive evidence.