Public Act 93-0517

SB15 Enrolled                        LRB093 03273 RLC 03290 b

    AN ACT in relation to interrogations.

    Be it enacted by the People of  the  State  of  Illinois,
represented in the General Assembly:

    Section 5.  The Illinois Criminal Justice Information Act
is amended by adding Section 7.5 as follows:

    (20 ILCS 3930/7.5 new)
    Sec. 7.5.  Grants for electronic recording equipment.
    (a)  The  Authority,  from  appropriations made to it for
that purpose, shall make  grants  to  local  law  enforcement
agencies   for   the  purpose  of  purchasing  equipment  for
electronic recording of interrogations.
    (b)  The Authority shall promulgate  rules  to  implement
this Section.

    Section  10.  The Illinois Police Training Act is amended
by adding Section 10.3 as follows:

    (50 ILCS 705/10.3 new)
    Sec.  10.3.  Training  of  police  officers  to   conduct
electronic  interrogations.    From appropriations made to it
for that purpose, the Board shall initiate,  administer,  and
conduct  training  programs  for  permanent  police officers,
part-time police officers, and recruits on  the  methods  and
technical  aspects  of  conducting  electronic  recordings of
interrogations.

    Section 15.  The Juvenile Court Act of 1987 is amended by
adding Section 5-401.5 as follows:

    (705 ILCS 405/5-401.5 new)
    Sec. 5-401.5.  When statements by minor may be used.
    (a)  In this Section, "custodial interrogation" means any
interrogation (i) during which a  reasonable  person  in  the
subject's position would consider himself or herself to be in
custody  and  (ii)  during  which a question is asked that is
reasonably likely to elicit an incriminating response.
    In this Section, "electronic recording"  includes  motion
picture, audiotape, videotape, or digital recording.
    In this Section, "place of detention" means a building or
a police station that is a place of operation for a municipal
police  department  or county sheriff department or other law
enforcement agency at which persons are or  may  be  held  in
detention  in  connection with criminal charges against those
persons or allegations  that  those  persons  are  delinquent
minors.
    (b)  An  oral,  written,  or sign language statement of a
minor who, at the time of the commission of the  offense  was
under  the  age  of 17 years, made as a result of a custodial
interrogation conducted at a police station or other place of
detention on or after the effective date of  this  amendatory
Act  of  the  93rd  General  Assembly shall be presumed to be
inadmissible as evidence against the minor  in  any  criminal
proceeding  or  juvenile court proceeding, for an act that if
committed by an adult would be  brought  under  Section  9-1,
9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, or 9-3.3, of the Criminal Code
of 1961 unless:
         (1)  an   electronic   recording   is  made  of  the
    custodial interrogation; and
         (2) the recording is substantially accurate and  not
    intentionally altered.
    (c)   Every  electronic  recording  required  under  this
Section must be preserved until  such  time  as  the  minor's
adjudication  for  any  offense  relating to the statement is
final and all direct and habeas corpus appeals are exhausted,
or the prosecution of such offenses is barred by law.
    (d) If  the  court  finds,  by  a  preponderance  of  the
evidence,  that  the  minor  was  subjected  to  a  custodial
interrogation   in   violation  of  this  Section,  then  any
statements  made  by  the  minor  during  or  following  that
non-recorded custodial interrogation, even  if  otherwise  in
compliance with this Section, are presumed to be inadmissible
in  any  criminal  proceeding  or  juvenile  court proceeding
against the minor except for the purposes of impeachment.
    (e) Nothing in this Section precludes the  admission  (i)
of  a  statement  made  by  the  minor  in  open court in any
criminal proceeding or juvenile court  proceeding,  before  a
grand  jury, or at a preliminary hearing, (ii) of a statement
made during a custodial interrogation that was  not  recorded
as  required by this Section because electronic recording was
not feasible, (iii) of a voluntary statement, whether or  not
the  result  of a custodial interrogation, that has a bearing
on the credibility of the accused as a  witness,  (iv)  of  a
spontaneous  statement    that  is  not made in response to a
question, (v) of a statement made after questioning  that  is
routinely  asked  during  the processing of the arrest of the
suspect,  (vi)  of  a  statement  made  during  a   custodial
interrogation  by a suspect who requests, prior to making the
statement, to respond to the interrogator's questions only if
an  electronic  recording  is  not  made  of  the  statement,
provided  that  an  electronic  recording  is  made  of   the
statement  of  agreeing  to  respond  to  the  interrogator's
question,  only  if a recording is not made of the statement,
(vii) of a statement made during  a  custodial  interrogation
that  is  conducted out-of-state, (viii) of a statement given
at a time when the interrogators are unaware that a death has
in fact occurred, or (ix) of any other statement that may  be
admissible  under  law.   The  State shall bear the burden of
proving, by a preponderance of the evidence, that one of  the
exceptions  described  in  this subsection (e) is applicable.
Nothing  in  this  Section  precludes  the  admission  of   a
statement, otherwise inadmissible under this Section, that is
used only for impeachment and not as substantive evidence.
    (f)  The  presumption  of  inadmissibility of a statement
made by a suspect at a custodial interrogation  at  a  police
station  or  other  place  of  detention may be overcome by a
preponderance  of  the  evidence  that  the   statement   was
voluntarily  given  and is reliable, based on the totality of
the circumstances.
    (g)  Any electronic recording of any statement made by  a
minor  during  a  custodial interrogation that is compiled by
any law enforcement agency as required by  this  Section  for
the  purposes  of fulfilling the requirements of this Section
shall be confidential and exempt from public  inspection  and
copying,  as  provided  under  Section  7  of  the Freedom of
Information Act, and the information shall not be transmitted
to anyone except as needed to comply with this Section.

    Section 20.  The Criminal Code  of  1961  is  amended  by
changing Section 14-3 as follows:

    (720 ILCS 5/14-3) (from Ch. 38, par. 14-3)
    Sec.  14-3.   Exemptions.  The following activities shall
be exempt from the provisions of this Article:
    (a)  Listening  to   radio,   wireless   and   television
communications of any sort where the same are publicly made;
    (b)  Hearing  conversation when heard by employees of any
common carrier by wire incidental to  the  normal  course  of
their  employment  in the operation, maintenance or repair of
the equipment of such common carrier by wire so  long  as  no
information  obtained  thereby  is  used  or  divulged by the
hearer;
    (c)  Any broadcast  by  radio,  television  or  otherwise
whether  it  be  a  broadcast  or recorded for the purpose of
later broadcasts of any  function  where  the  public  is  in
attendance  and the conversations are overheard incidental to
the main purpose for which such  broadcasts  are  then  being
made;
    (d)  Recording or listening with the aid of any device to
any  emergency  communication  made  in  the normal course of
operations by any federal, state  or  local  law  enforcement
agency   or   institutions  dealing  in  emergency  services,
including, but not limited to, hospitals, clinics,  ambulance
services,   fire   fighting  agencies,  any  public  utility,
emergency repair facility, civilian defense establishment  or
military installation;
    (e)  Recording the proceedings of any meeting required to
be open by the Open Meetings Act, as amended;
    (f)  Recording or listening with the aid of any device to
incoming  telephone  calls  of phone lines publicly listed or
advertised  as  consumer  "hotlines"  by   manufacturers   or
retailers of food and drug products.  Such recordings must be
destroyed,  erased  or  turned  over to local law enforcement
authorities within 24 hours from the time of  such  recording
and shall not be otherwise disseminated.  Failure on the part
of the individual or business operating any such recording or
listening  device  to  comply  with  the requirements of this
subsection shall eliminate any  civil  or  criminal  immunity
conferred  upon  that individual or business by the operation
of this Section;
    (g)  With prior notification to the State's  Attorney  of
the  county  in  which it is to occur, recording or listening
with the aid of any device to any conversation  where  a  law
enforcement officer, or any person acting at the direction of
law  enforcement,  is  a  party  to  the conversation and has
consented  to  it  being  intercepted   or   recorded   under
circumstances  where  the  use of the device is necessary for
the protection of the law enforcement officer or  any  person
acting  at the direction of law enforcement, in the course of
an investigation of a forcible felony, a felony violation  of
the Illinois Controlled Substances Act, a felony violation of
the  Cannabis  Control  Act,  or  any "streetgang related" or
"gang-related" felony as  those  terms  are  defined  in  the
Illinois  Streetgang  Terrorism  Omnibus  Prevention Act. Any
recording or evidence derived as the result of this exemption
shall be inadmissible in any proceeding, criminal,  civil  or
administrative,  except (i) where a party to the conversation
suffers  great  bodily  injury  or  is  killed  during   such
conversation,  or  (ii)  when used as direct impeachment of a
witness concerning matters contained in the  interception  or
recording.   The  Director  of the Department of State Police
shall issue regulations as are necessary concerning  the  use
of   devices,  retention  of  tape  recordings,  and  reports
regarding their use;
    (g-5)  With approval  of  the  State's  Attorney  of  the
county  in  which it is to occur, recording or listening with
the aid of  any  device  to  any  conversation  where  a  law
enforcement officer, or any person acting at the direction of
law  enforcement,  is  a  party  to  the conversation and has
consented to it being intercepted or recorded in  the  course
of  an investigation of any offense defined in Article 29D of
this Code. In all such cases, an  application  for  an  order
approving  the previous or continuing use of an eavesdropping
device must be made within 48 hours of  the  commencement  of
such  use.   In  the  absence  of  such an order, or upon its
denial, any continuing use shall immediately  terminate.  The
Director  of  State Police shall issue rules as are necessary
concerning the use of devices, retention of tape  recordings,
and reports regarding their use.
    Any  recording  or  evidence  obtained  or derived in the
course of an investigation of any offense defined in  Article
29D  of  this Code shall, upon motion of the State's Attorney
or Attorney General prosecuting any violation of Article 29D,
be reviewed in camera with notice to all parties  present  by
the  court presiding over the criminal case, and, if ruled by
the court to be relevant and otherwise admissible,  it  shall
be admissible at the trial of the criminal case.
    This subsection (g-5) is inoperative on and after January
1,  2005.  No conversations recorded or monitored pursuant to
this subsection (g-5) shall be inadmissable in a court of law
by virtue of the repeal of this subsection (g-5)  on  January
1, 2005.
    (h)  Recordings   made   simultaneously   with   a  video
recording of an oral conversation between  a  peace  officer,
who  has  identified  his or her office, and a person stopped
for an investigation of an offense under the Illinois Vehicle
Code;
    (i)  Recording of  a  conversation  made  by  or  at  the
request  of  a person, not a law enforcement officer or agent
of  a  law  enforcement  officer,  who  is  a  party  to  the
conversation, under reasonable suspicion that  another  party
to the conversation is committing, is about to commit, or has
committed  a  criminal offense against the person or a member
of his or her immediate household, and  there  is  reason  to
believe that evidence of the criminal offense may be obtained
by the recording; and
    (j)  The  use  of a telephone monitoring device by either
(1)  a  corporation  or  other  business  entity  engaged  in
marketing or opinion research or (2) a corporation  or  other
business entity engaged in telephone solicitation, as defined
in  this  subsection,  to  record or listen to oral telephone
solicitation conversations or marketing or  opinion  research
conversations  by  an  employee  of  the corporation or other
business entity when:
         (i)  the monitoring  is  used  for  the  purpose  of
    service  quality control of marketing or opinion research
    or telephone solicitation, the education or  training  of
    employees  or contractors engaged in marketing or opinion
    research or telephone solicitation, or internal  research
    related  to  marketing  or  opinion research or telephone
    solicitation; and
         (ii)  the monitoring is used with the consent of  at
    least  one person who is an active party to the marketing
    or   opinion   research   conversation    or    telephone
    solicitation conversation being monitored.
    No communication or conversation or any part, portion, or
aspect  of  the communication or conversation made, acquired,
or obtained, directly or  indirectly,  under  this  exemption
(j),  may  be,  directly  or indirectly, furnished to any law
enforcement officer, agency, or official for any  purpose  or
used  in  any  inquiry or investigation, or used, directly or
indirectly,  in  any  administrative,  judicial,   or   other
proceeding, or divulged to any third party.
    When recording or listening authorized by this subsection
(j) on telephone lines used for marketing or opinion research
or  telephone  solicitation  purposes results in recording or
listening to a conversation that does not relate to marketing
or opinion research or  telephone  solicitation;  the  person
recording  or  listening  shall, immediately upon determining
that the conversation does not relate to marketing or opinion
research or telephone solicitation, terminate  the  recording
or  listening  and  destroy  any such recording as soon as is
practicable.
    Business entities that  use  a  telephone  monitoring  or
telephone  recording  system  pursuant  to this exemption (j)
shall provide current and prospective employees  with  notice
that the monitoring or recordings may occur during the course
of  their  employment.   The  notice  shall include prominent
signage notification within the workplace.
    Business entities that  use  a  telephone  monitoring  or
telephone  recording  system  pursuant  to this exemption (j)
shall provide  their  employees  or  agents  with  access  to
personal-only  telephone  lines  which may be pay telephones,
that are not subject to  telephone  monitoring  or  telephone
recording.
    For  the  purposes  of  this  subsection  (j), "telephone
solicitation" means a communication  through  the  use  of  a
telephone by live operators:
         (i)  soliciting the sale of goods or services;
         (ii)  receiving  orders  for  the  sale  of goods or
    services;
         (iii)  assisting in the use of goods or services; or
         (iv)  engaging in the solicitation,  administration,
    or collection of bank or retail credit accounts.
    For  the  purposes  of this subsection (j), "marketing or
opinion research"  means  a  marketing  or  opinion  research
interview  conducted  by a live telephone interviewer engaged
by a corporation or other  business  entity  whose  principal
business  is  the  design, conduct, and analysis of polls and
surveys measuring the opinions, attitudes, and  responses  of
respondents  toward  products  and  services,  or  social  or
political issues, or both.
    (k)  Electronic recordings, including but not limited to,
a  motion  picture,  videotape,  digital,  or other visual or
audio recording, made of  a  custodial  interrogation  of  an
individual at a police station or other place of detention by
a  law  enforcement  officer  under  Section  5-401.5  of the
Juvenile Court Act of 1987 or Section 103-2.1 of the Code  of
Criminal Procedure of 1963.
(Source: P.A. 91-357, eff. 7-29-99; 92-854, eff. 12-5-02.)

    Section  25.   The  Code of Criminal Procedure of 1963 is
amended by adding Section 103-2.1 as follows:
    (725 ILCS 5/103-2.1 new)
    Sec. 103-2.1.  When statements by accused may be used.
    (a)  In this Section, "custodial interrogation" means any
interrogation during which (i) a  reasonable  person  in  the
subject's position would consider himself or herself to be in
custody  and  (ii)  during  which a question is asked that is
reasonably likely to elicit an incriminating response.
    In this Section, "place of detention" means a building or
a police station that is a place of operation for a municipal
police department or county sheriff department or  other  law
enforcement  agency,  not  a  courthouse,  that  is  owned or
operated by a law enforcement agency at which persons are  or
may  be held in detention in connection with criminal charges
against those persons.
    In this Section, "electronic recording"  includes  motion
picture, audiotape, or videotape, or digital recording.
    (b)  An  oral,  written, or sign language statement of an
accused made as a result of a custodial  interrogation  at  a
police  station or other place of detention shall be presumed
to be inadmissible as evidence against  the  accused  in  any
criminal  proceeding  brought  under Section 9-1, 9-1.2, 9-2,
9-2.1, 9-3, 9-3.2, or 9-3.3 of  the  Criminal  Code  of  1961
unless:
         (1) an electronic recording is made of the custodial
    interrogation; and
         (2)  the recording is substantially accurate and not
    intentionally altered.
    (c)  Every  electronic  recording  required  under   this
Section  must be preserved until such time as the defendant's
conviction for any offense relating to the statement is final
and all direct and habeas corpus appeals  are  exhausted,  or
the prosecution of such offenses is barred by law.
    (d)  If  the  court  finds,  by  a  preponderance  of the
evidence, that the defendant was  subjected  to  a  custodial
interrogation   in   violation  of  this  Section,  then  any
statements made by the defendant  during  or  following  that
non-recorded  custodial  interrogation,  even if otherwise in
compliance with this Section, are presumed to be inadmissible
in any criminal proceeding against the defendant  except  for
the purposes of impeachment.
    (e)  Nothing  in this Section precludes the admission (i)
of a statement made by the accused in open court  at  his  or
her  trial, before a grand jury, or at a preliminary hearing,
(ii) of a statement made  during  a  custodial  interrogation
that  was  not  recorded as required by this Section, because
electronic recording was not feasible, (iii) of  a  voluntary
statement,   whether   or  not  the  result  of  a  custodial
interrogation, that has a bearing on the credibility  of  the
accused as a witness, (iv) of a spontaneous statement that is
not  made  in response to a question, (v) of a statement made
after  questioning  that  is  routinely  asked   during   the
processing  of the arrest of the suspect, (vi) of a statement
made during  a  custodial  interrogation  by  a  suspect  who
requests,  prior  to  making the statement, to respond to the
interrogator's questions only if an electronic  recording  is
not  made  of  the  statement,  provided  that  an electronic
recording is made of the statement of agreeing to respond  to
the  interrogator's question, only if a recording is not made
of  the  statement,  (vii)  of  a  statement  made  during  a
custodial  interrogation  that  is  conducted   out-of-state,
(viii)  of a statement given at a time when the interrogators
are unaware that a death has in fact occurred, or (ix) of any
other statement that may be admissible under law.  The  State
shall  bear  the burden of proving, by a preponderance of the
evidence, that  one  of  the  exceptions  described  in  this
subsection  (e)  is  applicable.    Nothing  in  this Section
precludes   the   admission   of   a   statement,   otherwise
inadmissible under  this  Section,  that  is  used  only  for
impeachment and not as substantive evidence.
    (f)  The  presumption  of  inadmissibility of a statement
made by a suspect at a custodial interrogation  at  a  police
station  or  other  place  of  detention may be overcome by a
preponderance  of  the  evidence  that  the   statement   was
voluntarily  given  and is reliable, based on the totality of
the circumstances.
    (g)  Any electronic recording of any statement made by an
accused during a custodial interrogation that is compiled  by
any  law  enforcement  agency as required by this Section for
the purposes of fulfilling the requirements of  this  Section
shall  be  confidential and exempt from public inspection and
copying, as provided  under  Section  7  of  the  Freedom  of
Information Act, and the information shall not be transmitted
to anyone except as needed to comply with this Section.

    Section  95.  The State Mandates Act is amended by adding
Section 8.27 as follows:

    (30 ILCS 805/8.27 new)
    Sec. 8.27.  Exempt mandate.  Notwithstanding  Sections  6
and  8 of this Act, no reimbursement by the State is required
for  the  implementation  of  any  mandate  created  by  this
amendatory Act of the 93rd General Assembly.

    Section 99.  Effective date.  Sections 5, 10, 20, and  95
of  this  Act  and  this Section 99 take effect upon becoming
law.  Sections 15 and 25 of this  Act  take  effect  2  years
after becoming law.