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1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Code of Civil Procedure is amended by
5changing Section 2-702 as follows:
 
6    (735 ILCS 5/2-702)
7    Sec. 2-702. Petition for a certificate of innocence that
8the petitioner was innocent of all offenses for which he or she
9was incarcerated.
10    (a) The General Assembly finds and declares that innocent
11persons who have been wrongly convicted of crimes in Illinois
12and subsequently imprisoned have been frustrated in seeking
13legal redress due to a variety of substantive and technical
14obstacles in the law and that such persons should have an
15available avenue to obtain a finding of innocence so that they
16may obtain relief through a petition in the Court of Claims.
17The General Assembly further finds misleading the current
18legal nomenclature which compels an innocent person to seek a
19pardon for being wrongfully incarcerated. It is the intent of
20the General Assembly that the court, in exercising its
21discretion as permitted by law regarding the weight and
22admissibility of evidence submitted pursuant to this Section,
23shall, in the interest of justice, give due consideration to

 

 

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1difficulties of proof caused by the passage of time, the death
2or unavailability of witnesses, the destruction of evidence or
3other factors not caused by such persons or those acting on
4their behalf.
5    (b) Any person convicted and subsequently imprisoned for
6one or more felonies by the State of Illinois which he or she
7did not commit may, under the conditions hereinafter provided,
8file a petition for certificate of innocence in the circuit
9court of the county in which the person was convicted. The
10petition shall request a certificate of innocence finding that
11the petitioner was innocent of all offenses for which he or she
12was incarcerated.
13    (c) In order to present the claim for certificate of
14innocence of an unjust conviction and imprisonment, the
15petitioner must attach to his or her petition documentation
16demonstrating that:
17        (1) he or she has been convicted of one or more
18    felonies by the State of Illinois and subsequently
19    sentenced to a term of imprisonment, and has served all or
20    any part of the sentence; and
21        (2) his or her judgment of conviction was reversed or
22    vacated, and the indictment or information dismissed or,
23    if a new trial was ordered, either he or she was found not
24    guilty at the new trial or he or she was not retried and
25    the indictment or information dismissed; or the statute,
26    or application thereof, on which the indictment or

 

 

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1    information was based violated the Constitution of the
2    United States or the State of Illinois; and
3        (3) his or her claim is not time barred by the
4    provisions of subsection (i) of this Section.
5    (d) The petition shall state facts in sufficient detail to
6permit the court to find that the petitioner is likely to
7succeed at trial in proving that the petitioner is innocent of
8the alleged offenses for which he or she was convicted charged
9in the indictment or information or his or her acts or
10omissions for which he or she was convicted charged in the
11indictment or information did not constitute a felony or
12misdemeanor against the State of Illinois, and the petitioner
13did not by his or her own conduct voluntarily cause or bring
14about his or her conviction. The petition shall be verified by
15the petitioner.
16    (e) A copy of the petition shall be served on the Attorney
17General and the State's Attorney of the county where the
18conviction was had. The Attorney General and the State's
19Attorney of the county where the conviction was had shall have
20the right to intervene as parties.
21    (f) In any hearing seeking a certificate of innocence, the
22court may take judicial notice of prior sworn testimony or
23evidence admitted in the criminal proceedings related to the
24convictions which resulted in the alleged wrongful
25incarceration, if the petitioner was either represented by
26counsel at such prior proceedings or the right to counsel was

 

 

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1knowingly waived.
2    (g) In order to obtain a certificate of innocence the
3petitioner must prove by a preponderance of evidence that:
4        (1) the petitioner was convicted of one or more
5    felonies by the State of Illinois and subsequently
6    sentenced to a term of imprisonment, and has served all or
7    any part of the sentence;
8        (2)(A) the judgment of conviction was reversed or
9    vacated, and the indictment or information dismissed or,
10    if a new trial was ordered, either the petitioner was
11    found not guilty at the new trial or the petitioner was not
12    retried and the indictment or information dismissed; or
13    (B) the statute, or application thereof, on which the
14    indictment or information was based violated the
15    Constitution of the United States or the State of
16    Illinois;
17        (3) the petitioner is innocent of the alleged offenses
18    for which he or she was convicted charged in the
19    indictment or information or his or her acts or omissions
20    for which he or she was convicted charged in the
21    indictment or information did not constitute a felony or
22    misdemeanor against the State; and
23        (4) the petitioner did not by his or her own conduct
24    voluntarily cause or bring about his or her conviction.
25    (h) If the court finds that the petitioner is entitled to a
26judgment, it shall enter a certificate of innocence finding

 

 

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1that the petitioner was innocent of all offenses for which he
2or she was incarcerated. Upon entry of the certificate of
3innocence or pardon from the Governor stating that such pardon
4was issued on the ground of innocence of the crime for which he
5or she was imprisoned, (1) the clerk of the court shall
6transmit a copy of the certificate of innocence to the clerk of
7the Court of Claims, together with the claimant's current
8address; and (2) the court shall enter an order expunging the
9record of arrest from the official records of the arresting
10authority and order that the records of the clerk of the
11circuit court and the Illinois State Police be sealed until
12further order of the court upon good cause shown or as
13otherwise provided herein, and the name of the defendant
14obliterated from the official index requested to be kept by
15the circuit court clerk under Section 16 of the Clerks of
16Courts Act in connection with the arrest and conviction for
17the offense but the order shall not affect any index issued by
18the circuit court clerk before the entry of the order. The
19court shall enter the expungement order regardless of whether
20the petitioner has prior criminal convictions.
21    All records sealed by the Illinois State Police may be
22disseminated by the Department only as required by law or to
23the arresting authority, the State's Attorney, the court upon
24a later arrest for the same or similar offense, or for the
25purpose of sentencing for any subsequent felony. Upon
26conviction for any subsequent offense, the Department of

 

 

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1Corrections shall have access to all sealed records of the
2Department pertaining to that individual.
3    Upon entry of the order of expungement, the clerk of the
4circuit court shall promptly mail a copy of the order to the
5person whose records were expunged and sealed.
6    (i) Any person seeking a certificate of innocence under
7this Section based on the dismissal of an indictment or
8information or acquittal that occurred before the effective
9date of this amendatory Act of the 95th General Assembly shall
10file his or her petition within 2 years after the effective
11date of this amendatory Act of the 95th General Assembly. Any
12person seeking a certificate of innocence under this Section
13based on the dismissal of an indictment or information or
14acquittal that occurred on or after the effective date of this
15amendatory Act of the 95th General Assembly shall file his or
16her petition within 2 years after the dismissal.
17    (j) The decision to grant or deny a certificate of
18innocence shall be binding only with respect to claims filed
19in the Court of Claims and shall not have a res judicata effect
20on any other proceedings.
21    (k) The changes to this Section made by this amendatory
22Act of the 103rd General Assembly apply to petitions filed on
23and after September 22, 2008.
24(Source: P.A. 102-538, eff. 8-20-21.)