Illinois General Assembly - Full Text of HB3525
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Full Text of HB3525  93rd General Assembly

HB3525 93rd General Assembly


                                     LRB093 11190 RLC 12197 b

 1        AN ACT concerning criminal law.

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

 4        Section  5.   The  Code  of Criminal Procedure of 1963 is
 5    amended by changing Sections 114-13, 122-1, 122-2, and  122-3
 6    and by adding Section 122-6.1 as follows:

 7        (725 ILCS 5/114-13) (from Ch. 38, par. 114-13)
 8        Sec. 114-13.  Discovery in criminal cases.
 9        (a)  Discovery  procedures  in criminal cases shall be in
10    accordance with Supreme Court Rules.
11        (b)  Any investigative, law enforcement, or other  agency
12    responsible   for   investigating   any  felony  offense,  or
13    participating in an investigation of any felony offense shall
14    provide to the authority prosecuting the offense all  reports
15    that  have been generated by or have come into the possession
16    of the investigating  agency  concerning  the  offense  being
17    investigated.   In  addition,  the investigating agency shall
18    provide  to  the  prosecuting  authority  any   material   or
19    information  within its possession or control that would tend
20    to negate the guilt of the accused of the offense charged  or
21    reduce   his  or  her  punishment  for  the  offense.   Every
22    investigative and law enforcement agency in this State  shall
23    adopt policies to ensure compliance with these provisions.
24    (Source: Laws 1963, p. 2836.)

25        (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
26        Sec. 122-1. Petition in the trial court.
27        (a)  Any   person  imprisoned  in  the  penitentiary  who
28    asserts that in the proceedings which resulted in his or  her
29    conviction  there  was  a  substantial  denial  of his or her
30    rights under the Constitution of the United States or of  the
                            -2-      LRB093 11190 RLC 12197 b
 1    State  of  Illinois  or both may institute a proceeding under
 2    this Article.    Under  the  Constitution  of  the  State  of
 3    Illinois,  an  assertion  of  substantial  denial  of  rights
 4    pursuant  to this Article includes, but is not limited to, an
 5    independent  claim  of  actual  innocence  based   on   newly
 6    discovered evidence.
 7        (b)  The proceeding shall be commenced by filing with the
 8    clerk  of  the  court  in  which  the conviction took place a
 9    petition  (together  with  a  copy   thereof)   verified   by
10    affidavit.  Petitioner shall also serve another copy upon the
11    State's  Attorney by any of the methods provided in Rule 7 of
12    the Supreme Court.  The clerk shall docket the  petition  for
13    consideration  by  the court pursuant to Section 122-2.1 upon
14    his or her receipt thereof and bring the same promptly to the
15    attention of the court.
16        (c)  A proceeding  on  an  independent  claim  of  actual
17    innocence   based   on  newly  discovered  evidence  must  be
18    commenced within 6 months after  the  discovery  of  the  new
19    evidence  by  the  defendant. No other proceedings under this
20    Article shall be commenced  more  than  6  months  after  the
21    denial  of  a  petition  for leave  to appeal or the date for
22    filing such a petition if none is filed or more than 45  days
23    after  the  defendant files his or her brief in the appeal of
24    the sentence before the Illinois Supreme Court (or more  than
25    45  days after the deadline for the filing of the defendant's
26    brief with the Illinois Supreme Court if no brief  is  filed)
27    or  3 years from the date of conviction, whichever is sooner,
28    unless the petitioner alleges facts showing  that  the  delay
29    was not due to his or her culpable negligence.
30        (d)  A  person  seeking relief by filing a petition under
31    this Section must specify in the petition or its heading that
32    it is filed under this Section.    A  trial  court  that  has
33    received  a  petition complaining of a conviction or sentence
34    that fails to specify in the petition or its heading that  it
                            -3-      LRB093 11190 RLC 12197 b
 1    is filed under this Section need not evaluate the petition to
 2    determine whether it could otherwise have stated some grounds
 3    for relief under this Article.
 4        (e)  A proceeding under this Article may not be commenced
 5    on  behalf  of  a  defendant  who has been sentenced to death
 6    without the written consent  of  the  defendant,  unless  the
 7    defendant,  because  of  a  mental  or physical condition, is
 8    incapable of asserting his or her own claim.
 9    (Source: P.A.  89-284,  eff.  1-1-96;  89-609,  eff.  1-1-97;
10    89-684, eff. 6-1-97; 90-14, eff. 7-1-97.)

11        (725 ILCS 5/122-2) (from Ch. 38, par. 122-2)
12        Sec. 122-2.  Contents of petition.
13        The  petition  shall identify the proceeding in which the
14    petitioner was convicted, give the date of the  rendition  of
15    the  final  judgment complained of, and clearly set forth the
16    respects in which  petitioner's  constitutional  rights  were
17    violated.    If  the petition asserts an independent claim of
18    actual innocence based on newly discovered evidence, it  must
19    set  forth  the  nature of the evidence and demonstrate that:
20    (i) the new evidence was  discovered  since  the  defendant's
21    trial;  and  (ii)   the  new  evidence  could  not  have been
22    discovered prior to trial by the exercise of  due  diligence.
23    The petition shall have attached thereto affidavits, records,
24    or  other  evidence supporting its allegations or shall state
25    why the same are not attached. The  petition  shall  identify
26    any  previous  proceedings that the petitioner may have taken
27    to secure relief from his conviction. Argument and  citations
28    and  discussion  of  authorities  shall  be  omitted from the
29    petition.
30    (Source: Laws 1963, p. 2836.)

31        (725 ILCS 5/122-3) (from Ch. 38, par. 122-3)
32        Sec. 122-3.  Waiver of claims.
                            -4-      LRB093 11190 RLC 12197 b
 1        Any claim of substantial denial of constitutional  rights
 2    not  raised in the original or an amended petition is waived.
 3    This provision shall  not  apply  to  independent  claims  of
 4    actual innocence based on newly discovered evidence.
 5    (Source: Laws 1963, p. 2836.)

 6        (725 ILCS 5/122-6.1 new)
 7        Sec. 122-6.1.  Actual innocence hearing.
 8        (a)  At   a   hearing  on  a  petition  that  asserts  an
 9    independent  claim  of  actual  innocence  based   on   newly
10    discovered  evidence, the burden shall be on the defendant to
11    prove his or her actual innocence.  At  no  time  in  such  a
12    hearing  shall  the defendant be entitled to a presumption of
13    innocence.  It shall be presumed that the verdict rendered at
14    the trial in which the defendant was convicted  was  correct,
15    and  the  burden  shall  be  on  the  defendant to rebut this
16    presumption.
17        (b)  The defendant, at an actual innocence hearing, shall
18    be required to prove his or her actual innocence by clear and
19    convincing evidence.
20        (c)  In an actual innocence hearing, the court shall make
21    a determination about the reliability  and  admissibility  of
22    the  newly discovered evidence.  Only if the court finds that
23    the evidence of the defendant's actual innocence is clear and
24    convincing and of such a conclusive character that  it  would
25    likely  change  the result of the defendant's trial shall the
26    court order a new trial for the defendant.