Illinois General Assembly

Previous General Assemblies

Public Act 099-0882


 

Public Act 0882 99TH GENERAL ASSEMBLY

  
  
  

 


 
Public Act 099-0882
 
SB2370 EnrolledLRB099 18370 SLF 44404 b

    AN ACT concerning criminal law.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Counties Code is amended by changing Section
3-4006 as follows:
 
    (55 ILCS 5/3-4006)  (from Ch. 34, par. 3-4006)
    Sec. 3-4006. Duties of public defender. The Public
Defender, as directed by the court, shall act as attorney,
without fee, before any court within any county for all persons
who are held in custody or who are charged with the commission
of any criminal offense, and who the court finds are unable to
employ counsel.
    The Public Defender shall be the attorney, without fee,
when so appointed by the court under Section 1-20 of the
Juvenile Court Act or Section 1-5 of the Juvenile Court Act of
1987 or by any court under Section 5(b) of the Parental Notice
of Abortion Act of 1983 for any party who the court finds is
financially unable to employ counsel.
    In cases subject to Section 5-170 of the Juvenile Court Act
of 1987 involving a minor who was under 15 years of age at the
time of the commission of the offense, that occurs in a county
with a full-time public defender office, a public defender,
without fee or appointment, may represent and have access to a
minor during a custodial interrogation. In cases subject to
Section 5-170 of the Juvenile Court Act of 1987 involving a
minor who was under 15 years of age at the time of the
commission of the offense, that occurs in a county without a
full-time public defender, the law enforcement agency
conducting the custodial interrogation shall ensure that the
minor is able to consult with an attorney who is under contract
with the county to provide public defender services.
Representation by the public defender shall terminate at the
first court appearance if the court determines that the minor
is not indigent.
    Every court shall, with the consent of the defendant and
where the court finds that the rights of the defendant would be
prejudiced by the appointment of the public defender, appoint
counsel other than the public defender, except as otherwise
provided in Section 113-3 of the "Code of Criminal Procedure of
1963". That counsel shall be compensated as is provided by law.
He shall also, in the case of the conviction of any such
person, prosecute any proceeding in review which in his
judgment the interests of justice require.
(Source: P.A. 86-962.)
 
    Section 10. The Juvenile Court Act of 1987 is amended by
changing Sections 5-170 and 5-401.5 as follows:
 
    (705 ILCS 405/5-170)
    Sec. 5-170. Representation by counsel.
    (a) In a proceeding under this Article, a minor who was
under 15 13 years of age at the time of the commission of an act
that if committed by an adult would be a violation of Section
9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, 9-3.3, 11-1.20, 11-1.30,
11-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 12-14.1, 12-15, or
12-16 of the Criminal Code of 1961 or the Criminal Code of 2012
must be represented by counsel throughout during the entire
custodial interrogation of the minor.
    (b) In a judicial proceeding under this Article, a minor
may not waive the right to the assistance of counsel in his or
her defense.
(Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
 
    (705 ILCS 405/5-401.5)
    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.
    (a-5) An oral, written, or sign language statement of a
minor, who at the time of the commission of the offense was
under 18 years of age, is presumed to be inadmissible when the
statement is obtained from the minor while the minor is subject
to custodial interrogation by a law enforcement officer,
State's Attorney, juvenile officer, or other public official or
employee prior to the officer, State's Attorney, public
official, or employee:
        (1) continuously reads to the minor, in its entirety
    and without stopping for purposes of a response from the
    minor or verifying comprehension, the following statement:
    "You have the right to remain silent. That means you do not
    have to say anything. Anything you do say can be used
    against you in court. You have the right to get help from a
    lawyer. If you cannot pay for a lawyer, the court will get
    you one for free. You can ask for a lawyer at any time. You
    have the right to stop this interview at any time."; and
        (2) after reading the statement required by paragraph
    (1) of this subsection (a-5), the public official or
    employee shall ask the minor the following questions and
    wait for the minor's response to each question:
            (A) "Do you want to have a lawyer?"
            (B) "Do you want to talk to me?"
    (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 18 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 99th
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 a misdemeanor offense under Article 11 of the
Criminal Code of 2012 or any felony offense 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 or the Criminal Code of 2012, or under
clause (d)(1)(F) of Section 11-501 of the Illinois Vehicle Code
unless:
        (1) an electronic recording is made of the custodial
    interrogation; and
        (2) the recording is substantially accurate and not
    intentionally altered.
    (b-5) (Blank). Under the following circumstances, 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 shall be presumed to
be inadmissible as evidence against the minor, unless an
electronic recording is made of the custodial interrogation and
the recording is substantially accurate and not intentionally
altered:
        (1) in any criminal proceeding or juvenile court
    proceeding, for an act that if committed by an adult would
    be brought under Section 11-1.40 or 20-1.1 of the Criminal
    Code of 1961 or the Criminal Code of 2012, if the custodial
    interrogation was conducted on or after June 1, 2014;
        (2) in any criminal proceeding or juvenile court
    proceeding, for an act that if committed by an adult would
    be brought under Section 10-2, 18-4, or 19-6 of the
    Criminal Code of 1961 or the Criminal Code of 2012, if the
    custodial interrogation was conducted on or after June 1,
    2015; and
        (3) in any criminal proceeding or juvenile court
    proceeding, for an act that if committed by an adult would
    be brought under Section 11-1.30 or 18-2 or subsection (e)
    of Section 12-3.05 of the Criminal Code of 1961 or the
    Criminal Code of 2012, if the custodial interrogation was
    conducted on or after June 1, 2016.
    (b-10) If, during the course of an electronically recorded
custodial interrogation conducted under this Section of a minor
who, at the time of the commission of the offense was under the
age of 18 17 years, the minor makes a statement that creates a
reasonable suspicion to believe the minor has committed an act
that if committed by an adult would be an offense other than an
offense required to be recorded under subsection (b) or (b-5),
the interrogators may, without the minor's consent, continue to
record the interrogation as it relates to the other offense
notwithstanding any provision of law to the contrary. Any oral,
written, or sign language statement of a minor made as a result
of an interrogation under this subsection shall be presumed to
be inadmissible as evidence against the minor in any criminal
proceeding or juvenile court proceeding, unless the recording
is substantially accurate and not intentionally altered.
    (c) Every electronic recording made 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 in violation of subsection (b) at a time when
the interrogators are unaware that a death has in fact
occurred, (ix) (blank) of a statement given in violation of
subsection (b-5) at a time when the interrogators are unaware
of facts and circumstances that would create probable cause to
believe that the minor committed an act that if committed by an
adult would be an offense required to be recorded under
subsection (b-5), or (x) 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.
    (h) A statement, admission, confession, or incriminating
information made by or obtained from a minor related to the
instant offense, as part of any behavioral health screening,
assessment, evaluation, or treatment, whether or not
court-ordered, shall not be admissible as evidence against the
minor on the issue of guilt only in the instant juvenile court
proceeding. The provisions of this subsection (h) are in
addition to and do not override any existing statutory and
constitutional prohibition on the admission into evidence in
delinquency proceedings of information obtained during
screening, assessment, or treatment.
    (i) The changes made to this Section by Public Act 98-61
apply to statements of a minor made on or after January 1, 2014
(the effective date of Public Act 98-61).
(Source: P.A. 97-1150, eff. 1-25-13; 98-61, eff. 1-1-14;
98-547, eff. 1-1-14; 98-756, eff. 7-16-14.)
 
    Section 15. The Code of Criminal Procedure of 1963 is
amended by changing Section 103-2.1 as follows:
 
    (725 ILCS 5/103-2.1)
    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.
    (a-5) An oral, written, or sign language statement of a
minor, who at the time of the commission of the offense was
under 18 years of age, is presumed to be inadmissible when the
statement is obtained from the minor while the minor is subject
to custodial interrogation by a law enforcement officer,
State's Attorney, juvenile officer, or other public official or
employee prior to the officer, State's Attorney, public
official, or employee:
        (1) continuously reads to the minor, in its entirety
    and without stopping for purposes of a response from the
    minor or verifying comprehension, the following statement:
    "You have the right to remain silent. That means you do not
    have to say anything. Anything you do say can be used
    against you in court. You have the right to get help from a
    lawyer. If you cannot pay for a lawyer, the court will get
    you one for free. You can ask for a lawyer at any time. You
    have the right to stop this interview at any time."; and
        (2) after reading the statement required by paragraph
    (1) of this subsection (a-5), the public official or
    employee shall ask the minor the following questions and
    wait for the minor's response to each question:
            (A) "Do you want to have a lawyer?"
            (B) "Do you want to talk to me?"
    (a-10) An oral, written, or sign language statement of a
minor, who at the time of the commission of the offense was
under 18 years of age, 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 99th General Assembly shall be presumed to be
inadmissible as evidence in a criminal proceeding or a juvenile
court proceeding for an act that if committed by an adult would
be a misdemeanor offense under Article 11 of the Criminal Code
of 2012 or a felony offense under the Criminal Code of 2012
unless:
        (1) an electronic recording is made of the custodial
    interrogation; and
        (2) the recording is substantially accurate and not
    intentionally altered.
    (b) An oral, written, or sign language statement of an
accused made as a result of a custodial interrogation conducted
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 or the
Criminal Code of 2012 or under clause (d)(1)(F) of Section
11-501 of the Illinois Vehicle Code unless:
        (1) an electronic recording is made of the custodial
    interrogation; and
        (2) the recording is substantially accurate and not
    intentionally altered.
    (b-5) Under the following circumstances, an oral, written,
or sign language statement of an accused made as a result of a
custodial interrogation conducted at a police station or other
place of detention shall be presumed to be inadmissible as
evidence against the accused, unless an electronic recording is
made of the custodial interrogation and the recording is
substantially accurate and not intentionally altered:
        (1) in any criminal proceeding brought under Section
    11-1.40 or 20-1.1 of the Criminal Code of 1961 or the
    Criminal Code of 2012, if the custodial interrogation was
    conducted on or after June 1, 2014;
        (2) in any criminal proceeding brought under Section
    10-2, 18-4, or 19-6 of the Criminal Code of 1961 or the
    Criminal Code of 2012, if the custodial interrogation was
    conducted on or after June 1, 2015; and
        (3) in any criminal proceeding brought under Section
    11-1.30 or 18-2 or subsection (e) of Section 12-3.05 of the
    Criminal Code of 1961 or the Criminal Code of 2012, if the
    custodial interrogation was conducted on or after June 1,
    2016.
    (b-10) If, during the course of an electronically recorded
custodial interrogation conducted under this Section, the
accused makes a statement that creates a reasonable suspicion
to believe the accused has committed an offense other than an
offense required to be recorded under subsection (b) or (b-5),
the interrogators may, without the accused's consent, continue
to record the interrogation as it relates to the other offense
notwithstanding any provision of law to the contrary. Any oral,
written, or sign language statement of an accused made as a
result of an interrogation under this subsection shall be
presumed to be inadmissible as evidence against the accused in
any criminal proceeding, unless the recording is substantially
accurate and not intentionally altered.
    (c) Every electronic recording made 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 in violation of
subsection (b) at a time when the interrogators are unaware
that a death has in fact occurred, (ix) of a statement given in
violation of subsection (b-5) at a time when the interrogators
are unaware of facts and circumstances that would create
probable cause to believe that the accused committed an offense
required to be recorded under subsection (b-5), or (x) 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.
(Source: P.A. 97-1150, eff. 1-25-13; 98-547, eff. 1-1-14.)

Effective Date: 1/1/2017