093_HB0223ham001

 










                                     LRB093 04402 RLC 12587 a

 1                     AMENDMENT TO HOUSE BILL 223

 2        AMENDMENT NO.     .  Amend House Bill 223 as follows:

 3    by replacing everything after the enacting  clause  with  the
 4    following:

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

 7        (20 ILCS 3930/7.5 new)
 8        Sec. 7.5.  Grants for electronic recording equipment.
 9        (a)  The Authority, from appropriations made  to  it  for
10    that  purpose,  shall  make  grants  to local law enforcement
11    agencies  for  the  purpose  of  purchasing   equipment   for
12    electronic recording of interrogations.
13        (b)  The  Authority  shall  promulgate rules to implement
14    this Section.

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

17        (50 ILCS 705/10.3 new)
18        Sec.   10.3.  Training  of  police  officers  to  conduct
19    electronic interrogations.  From appropriations  made  to  it
 
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 1    for  that  purpose, the Board shall initiate, administer, and
 2    conduct training  programs  for  permanent  police  officers,
 3    part-time  police  officers,  and recruits on the methods and
 4    technical aspects  of  conducting  electronic  recordings  of
 5    interrogations.

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

 8        (705 ILCS 405/5-401.5 new)
 9        Sec. 5-401.5.  When statements by minor may be used.
10        (a)  In this Section, "custodial interrogation" means any
11    interrogation  (i)  during  which  a reasonable person in the
12    subject's position would consider himself or herself to be in
13    custody and (ii) during which a question  is  asked  that  is
14    reasonably likely to elicit an incriminating response.
15        In  this  Section, "electronic recording" includes motion
16    picture, audiotape, videotape, or digital recording.
17        In this Section, "place of detention" means a building or
18    a police station that is a place of operation for a municipal
19    police department or county sheriff department or  other  law
20    enforcement  agency  at  which  persons are or may be held in
21    detention in connection with criminal charges  against  those
22    persons  or  allegations  that  those  persons are delinquent
23    minors.
24        (b) An oral, written, or sign  language  statement  of  a
25    minor  who,  at the time of the commission of the offense was
26    under the age of 17 years, made as a result  of  a  custodial
27    interrogation conducted at a police station or other place of
28    detention  on  or after the effective date of this amendatory
29    Act of the 93rd General Assembly  shall  be  presumed  to  be
30    inadmissible  as  evidence  against the minor in any criminal
31    proceeding or juvenile court proceeding, for an act  that  if
32    committed  by  an  adult  would be brought under Section 9-1,
 
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 1    9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, or 9-3.3, of the Criminal Code
 2    of 1961 unless:
 3             (1)  an  electronic  recording  is   made   of   the
 4        custodial interrogation; and
 5             (2)  the recording is substantially accurate and not
 6        intentionally altered.
 7        (c)  Every  electronic  recording  required  under   this
 8    Section  must  be  preserved  until  such time as the minor's
 9    adjudication for any offense relating  to  the  statement  is
10    final and all direct and habeas corpus appeals are exhausted,
11    or the prosecution of such offenses is barred by law.
12        (d)  If  the  court  finds,  by  a  preponderance  of the
13    evidence,  that  the  minor  was  subjected  to  a  custodial
14    interrogation  in  violation  of  this  Section,   then   any
15    statements  made  by  the  minor  during  or  following  that
16    non-recorded  custodial  interrogation,  even if otherwise in
17    compliance with this Section, are presumed to be inadmissible
18    in any  criminal  proceeding  or  juvenile  court  proceeding
19    against the minor except for the purposes of impeachment.
20        (e)  Nothing  in this Section precludes the admission (i)
21    of a statement made  by  the  minor  in  open  court  in  any
22    criminal  proceeding  or  juvenile court proceeding, before a
23    grand jury, or at a preliminary hearing, (ii) of a  statement
24    made  during  a custodial interrogation that was not recorded
25    as required by this Section because electronic recording  was
26    not  feasible, (iii) of a voluntary statement, whether or not
27    the result of a custodial interrogation, that has  a  bearing
28    on  the  credibility  of  the accused as a witness, (iv) of a
29    spontaneous statement  that is not  made  in  response  to  a
30    question,  (v)  of a statement made after questioning that is
31    routinely asked during the processing of the  arrest  of  the
32    suspect,   (vi)  of  a  statement  made  during  a  custodial
33    interrogation by a suspect who requests, prior to making  the
34    statement, to respond to the interrogator's questions only if
 
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 1    an  electronic  recording  is  not  made  of  the  statement,
 2    provided   that  an  electronic  recording  is  made  of  the
 3    statement  of  agreeing  to  respond  to  the  interrogator's
 4    question, only if a recording is not made of  the  statement,
 5    (vii)  of  a  statement made during a custodial interrogation
 6    that is conducted out-of-state, (viii) of a  statement  given
 7    at  a time when the interrogators are unaware that a death or
 8    an act of sexual  assault  or  sexual  conduct  has  in  fact
 9    occurred,  or  (ix)  of  any  other  statement  that  may  be
10    admissible  under  law.   The  State shall bear the burden of
11    proving, by a preponderance of the evidence, that one of  the
12    exceptions  described  in  this subsection (e) is applicable.
13    Nothing  in  this  Section  precludes  the  admission  of   a
14    statement, otherwise inadmissible under this Section, that is
15    used only for impeachment and not as substantive evidence.
16        (f)  The  presumption  of  inadmissibility of a statement
17    made by  a  suspect  at  a  custodial  interrogation  may  be
18    overcome   by  a  preponderance  of  the  evidence  that  the
19    statement was voluntarily given and is reliable, based on the
20    totality of the circumstances.

21        Section 20.  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
 
                            -6-      LRB093 04402 RLC 12587 a
 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        (g-5)  With approval  of  the  State's  Attorney  of  the
21    county  in  which it is to occur, recording or listening with
22    the aid of  any  device  to  any  conversation  where  a  law
23    enforcement officer, or any person acting at the direction of
24    law  enforcement,  is  a  party  to  the conversation and has
25    consented to it being intercepted or recorded in  the  course
26    of  an investigation of any offense defined in Article 29D of
27    this Code. In all such cases, an  application  for  an  order
28    approving  the previous or continuing use of an eavesdropping
29    device must be made within 48 hours of  the  commencement  of
30    such  use.   In  the  absence  of  such an order, or upon its
31    denial, any continuing use shall immediately  terminate.  The
32    Director  of  State Police shall issue rules as are necessary
33    concerning the use of devices, retention of tape  recordings,
34    and reports regarding their use.
 
                            -7-      LRB093 04402 RLC 12587 a
 1        Any  recording  or  evidence  obtained  or derived in the
 2    course of an investigation of any offense defined in  Article
 3    29D  of  this Code shall, upon motion of the State's Attorney
 4    or Attorney General prosecuting any violation of Article 29D,
 5    be reviewed in camera with notice to all parties  present  by
 6    the  court presiding over the criminal case, and, if ruled by
 7    the court to be relevant and otherwise admissible,  it  shall
 8    be admissible at the trial of the criminal case.
 9        This subsection (g-5) is inoperative on and after January
10    1,  2005.  No conversations recorded or monitored pursuant to
11    this subsection (g-5) shall be inadmissable in a court of law
12    by virtue of the repeal of this subsection (g-5)  on  January
13    1, 2005.
14        (h)  Recordings   made   simultaneously   with   a  video
15    recording of an oral conversation between  a  peace  officer,
16    who  has  identified  his or her office, and a person stopped
17    for an investigation of an offense under the Illinois Vehicle
18    Code;
19        (i)  Recording of  a  conversation  made  by  or  at  the
20    request  of  a person, not a law enforcement officer or agent
21    of  a  law  enforcement  officer,  who  is  a  party  to  the
22    conversation, under reasonable suspicion that  another  party
23    to the conversation is committing, is about to commit, or has
24    committed  a  criminal offense against the person or a member
25    of his or her immediate household, and  there  is  reason  to
26    believe that evidence of the criminal offense may be obtained
27    by the recording; and
28        (j)  The  use  of a telephone monitoring device by either
29    (1)  a  corporation  or  other  business  entity  engaged  in
30    marketing or opinion research or (2) a corporation  or  other
31    business entity engaged in telephone solicitation, as defined
32    in  this  subsection,  to  record or listen to oral telephone
33    solicitation conversations or marketing or  opinion  research
34    conversations  by  an  employee  of  the corporation or other
 
                            -8-      LRB093 04402 RLC 12587 a
 1    business entity when:
 2             (i)  the monitoring  is  used  for  the  purpose  of
 3        service  quality control of marketing or opinion research
 4        or telephone solicitation, the education or  training  of
 5        employees  or contractors engaged in marketing or opinion
 6        research or telephone solicitation, or internal  research
 7        related  to  marketing  or  opinion research or telephone
 8        solicitation; and
 9             (ii)  the monitoring is used with the consent of  at
10        least  one person who is an active party to the marketing
11        or   opinion   research   conversation    or    telephone
12        solicitation conversation being monitored.
13        No communication or conversation or any part, portion, or
14    aspect  of  the communication or conversation made, acquired,
15    or obtained, directly or  indirectly,  under  this  exemption
16    (j),  may  be,  directly  or indirectly, furnished to any law
17    enforcement officer, agency, or official for any  purpose  or
18    used  in  any  inquiry or investigation, or used, directly or
19    indirectly,  in  any  administrative,  judicial,   or   other
20    proceeding, or divulged to any third party.
21        When recording or listening authorized by this subsection
22    (j) on telephone lines used for marketing or opinion research
23    or  telephone  solicitation  purposes results in recording or
24    listening to a conversation that does not relate to marketing
25    or opinion research or  telephone  solicitation;  the  person
26    recording  or  listening  shall, immediately upon determining
27    that the conversation does not relate to marketing or opinion
28    research or telephone solicitation, terminate  the  recording
29    or  listening  and  destroy  any such recording as soon as is
30    practicable.
31        Business entities that  use  a  telephone  monitoring  or
32    telephone  recording  system  pursuant  to this exemption (j)
33    shall provide current and prospective employees  with  notice
34    that the monitoring or recordings may occur during the course
 
                            -9-      LRB093 04402 RLC 12587 a
 1    of  their  employment.   The  notice  shall include prominent
 2    signage notification within the workplace.
 3        Business entities that  use  a  telephone  monitoring  or
 4    telephone  recording  system  pursuant  to this exemption (j)
 5    shall provide  their  employees  or  agents  with  access  to
 6    personal-only  telephone  lines  which may be pay telephones,
 7    that are not subject to  telephone  monitoring  or  telephone
 8    recording.
 9        For  the  purposes  of  this  subsection  (j), "telephone
10    solicitation" means a communication  through  the  use  of  a
11    telephone by live operators:
12             (i)  soliciting the sale of goods or services;
13             (ii)  receiving  orders  for  the  sale  of goods or
14        services;
15             (iii)  assisting in the use of goods or services; or
16             (iv)  engaging in the solicitation,  administration,
17        or collection of bank or retail credit accounts.
18        For  the  purposes  of this subsection (j), "marketing or
19    opinion research"  means  a  marketing  or  opinion  research
20    interview  conducted  by a live telephone interviewer engaged
21    by a corporation or other  business  entity  whose  principal
22    business  is  the  design, conduct, and analysis of polls and
23    surveys measuring the opinions, attitudes, and  responses  of
24    respondents  toward  products  and  services,  or  social  or
25    political issues, or both.
26        (k)  Electronic recordings, including but not limited to,
27    a  motion  picture,  videotape,  digital,  or other visual or
28    audio recording, made of  a  custodial  interrogation  of  an
29    individual at a police station or other place of detention by
30    a  law  enforcement  officer  under  Section  5-401.5  of the
31    Juvenile Court Act of 1987 or Section 103-2.1 of the Code  of
32    Criminal Procedure of 1963.
33    (Source: P.A. 91-357, eff. 7-29-99; 92-854, eff. 12-5-02.)
 
                            -10-     LRB093 04402 RLC 12587 a
 1        Section  25.   The  Code of Criminal Procedure of 1963 is
 2    amended by adding Section 103-2.1 as follows:

 3        (725 ILCS 5/103-2.1 new)
 4        Sec. 103-2.1.  When statements by accused may be used.
 5        (a)  In this Section, "custodial interrogation" means any
 6    interrogation during which (i) a  reasonable  person  in  the
 7    subject's  position,  innocent  of  any crime, would consider
 8    himself or herself to be in custody and (ii) during  which  a
 9    question  is  asked  that  is  reasonably likely to elicit an
10    incriminating response.
11        In this Section, "place of detention" means a building or
12    a police station that is a place of operation for a municipal
13    police department or county sheriff department or  other  law
14    enforcement  agency,  not  a  courthouse,  that  is  owned or
15    operated by a law enforcement agency at which persons are  or
16    may  be held in detention in connection with criminal charges
17    against those persons.
18        In this Section, "electronic recording"  includes  motion
19    picture, audiotape, or videotape, or digital recording.
20        (b)  An  oral,  written, or sign language statement of an
21    accused made as a result of a custodial  interrogation  at  a
22    police  station or other place of detention shall be presumed
23    to be inadmissible as evidence against  the  accused  in  any
24    criminal  proceeding  brought  under Section 9-1, 9-1.2, 9-2,
25    9-2.1, 9-3, 9-3.2, or 9-3.3 of  the  Criminal  Code  of  1961
26    unless:
27             (1) an electronic recording is made of the custodial
28        interrogation; and
29             (2)  the recording is substantially accurate and not
30        intentionally altered.
31        (c)  Every  electronic  recording  required  under   this
32    Section  must be preserved until such time as the defendant's
33    conviction for any offense relating to the statement is final
 
                            -11-     LRB093 04402 RLC 12587 a
 1    and all direct and habeas corpus appeals  are  exhausted,  or
 2    the prosecution of such offenses is barred by law.
 3        (d)  If  the  court  finds,  by  a  preponderance  of the
 4    evidence, that the defendant was  subjected  to  a  custodial
 5    interrogation  in  violation  of  this  Section  prior to the
 6    custodial interrogation in violation of  this  Section,  then
 7    any statements made by the defendant during or following that
 8    non-recorded  custodial  interrogation,  even if otherwise in
 9    compliance with this Section, are presumed to be inadmissible
10    in any criminal proceeding against the defendant  except  for
11    the purposes of impeachment.
12        (e)  Nothing  in this Section precludes the admission (i)
13    of a statement made by the accused in open court  at  his  or
14    her  trial, before a grand jury, or at a preliminary hearing,
15    (ii) of a statement made  during  a  custodial  interrogation
16    that  was  not  recorded as required by this Section, because
17    electronic recording was not feasible, (iii) of  a  voluntary
18    statement,   whether   or  not  the  result  of  a  custodial
19    interrogation, that has a bearing on the credibility  of  the
20    accused as a witness, (iv) of a spontaneous statement that is
21    not  made  in response to a question, (v) of a statement made
22    after  questioning  that  is  routinely  asked   during   the
23    processing  of the arrest of the suspect, (vi) of a statement
24    made during  a  custodial  interrogation  by  a  suspect  who
25    requests,  prior  to  making the statement, to respond to the
26    interrogator's questions only if an electronic  recording  is
27    not  made  of  the  statement,  provided  that  an electronic
28    recording is made of the statement of agreeing to respond  to
29    the  interrogator's question, only if a recording is not made
30    of  the  statement,  (vii)  of  a  statement  made  during  a
31    custodial  interrogation  that  is  conducted   out-of-state,
32    (viii)  of a statement given at a time when the interrogators
33    are unaware that a death or  an  act  of  sexual  assault  or
34    sexual  conduct  has  in  fact occurred, or (ix) of any other
 
                            -12-     LRB093 04402 RLC 12587 a
 1    statement that may be admissible under law.  The State  shall
 2    bear  the  burden  of  proving,  by  a  preponderance  of the
 3    evidence, that  one  of  the  exceptions  described  in  this
 4    subsection  (e)  is  applicable.    Nothing  in  this Section
 5    precludes   the   admission   of   a   statement,   otherwise
 6    inadmissible under  this  Section,  that  is  used  only  for
 7    impeachment and not as substantive evidence.
 8        (f)  The  presumption  of  inadmissibility of a statement
 9    made by  a  suspect  at  a  custodial  interrogation  may  be
10    overcome   by  a  preponderance  of  the  evidence  that  the
11    statement was voluntarily given and is reliable, based on the
12    totality of the circumstances.

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

15        (30 ILCS 805/8.27 new)
16        Sec.  8.27.  Exempt  mandate.  Notwithstanding Sections 6
17    and 8 of this Act, no reimbursement by the State is  required
18    for  the  implementation  of  any  mandate  created  by  this
19    amendatory Act of the 93rd General Assembly.

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