SB1265 100TH GENERAL ASSEMBLY

LRB100 08380 SLF 18489 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
SB1265

Introduced 2/9/2017, by Sen. Patricia Van Pelt

SYNOPSIS AS INTRODUCED:

705 ILCS 405/5-170
705 ILCS 405/5-401.5
725 ILCS 5/103-2.1

Amends the Juvenile Court Act of 1987. Provides that minors under 18 years of age (rather than 15 years of age) at the time of the commission of an act committed by an adult would be a violation of first degree murder, intentional homicide of an unborn child, second degree murder, voluntary manslaughter of an unborn child, involuntary manslaughter and reckless homicide, involuntary manslaughter and reckless homicide of an unborn child, drug-induced homicide, criminal sexual assault, aggravated criminal sexual assault, predatory criminal sexual assault of a child, criminal sexual abuse, or aggravated criminal sexual abuse, must be represented by counsel throughout the entire custodial interrogation of the minor. Provides that an oral, written, or sign language statement of a minor made without the presence of counsel during a custodial interrogation in violation of the Act on or after the effective date of the bill shall be inadmissible as evidence against the minor in a proceeding under the Act or under the Criminal Code of 2012. Makes a conforming change in the Code of Criminal Procedure of 1963.

A BILL FOR

AN ACT concerning courts.

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

Section 5. 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 18 15 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 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. 99-882, eff. 1-1-17.)

(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 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 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).

(b-7) An oral, written, or sign language statement of a minor made without the presence of counsel during a custodial interrogation in violation of Section 5-170 of this Act on or after the effective date of this amendatory Act of the 100th General Assembly shall be inadmissible as evidence against the minor in a proceeding under this Act or in a proceeding under the Criminal Code of 2012.

(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 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), 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), 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. 98-61, eff. 1-1-14; 98-547, eff. 1-1-14; 98-756, eff. 7-16-14; 99-882, eff. 1-1-17.)

Section 10. 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.

(a-15) An oral, written, or sign language statement of a minor made without the presence of counsel during a custodial interrogation in violation of Section 5-170 of the Juvenile Court Act of 1987 on or after the effective date of this amendatory Act of the 100th General Assembly shall be inadmissible as evidence against the minor in a proceeding under the Juvenile Court Act of 1987 or in a proceeding under the Criminal Code of 2012.

(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. 98-547, eff. 1-1-14; 99-882, eff. 1-1-17.)