Illinois General Assembly - Full Text of HB0223
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Full Text of HB0223  93rd General Assembly

HB0223 93rd General Assembly


093_HB0223

 
                                     LRB093 04402 RLC 04452 b

 1        AN ACT in relation to interrogations.

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

 4        Section  5.   The  Department  of State Police Law of the
 5    Civil Administrative Code of Illinois is  amended  by  adding
 6    Section 2605-410 as follows:

 7        (20 ILCS 2605/2605-410 new)
 8        Sec.  2605-410.  Grants  for  the  purchase  of videotape
 9    equipment.  The Department of State Police shall make  grants
10    available  to  local  law  enforcement agencies, subject to a
11    separate  appropriation,  for  the  purpose   of   purchasing
12    videotape equipment.

13        Section 10.  The Juvenile Court Act of 1987 is amended by
14    adding Section 5-401.5 as follows:

15        (705 ILCS 405/5-401.5 new)
16        Sec. 5-401.5.  When statements by minor may be used.
17        (a)  In  this  Section,  a "written statement of a minor"
18    means a statement signed by the minor or a statement made  by
19    the  minor  in his or her own handwriting or, if the minor is
20    unable to write, a statement bearing his or  her  mark,  when
21    the  mark  has  been witnessed by a person other than a peace
22    officer.
23        (b) No oral, written, or sign  language  statement  of  a
24    minor  who, at the time of the commission of the offense, was
25    under the age of 17 years made as a  result  of  a  custodial
26    interrogation  shall  be  admissible  as evidence against the
27    minor in any proceeding under this Act in which the minor  is
28    alleged  to  be delinquent for an act that if committed by an
29    adult would be a non-probationable felony unless:
 
                            -2-      LRB093 04402 RLC 04452 b
 1             (1)  the minor is represented by an attorney who  is
 2        present at all times during the custodial interrogation;
 3             (2)  an electronic video and audio recording is made
 4        of the custodial interrogation;
 5             (3) prior to the custodial interrogation but  during
 6        the recording, the minor is given the following warnings:
 7                  i.  that  the  minor  has  the  right to remain
 8             silent and not make any statement at all,  and  that
 9             any  statement  he  or she makes may be used against
10             him or her at his or her trial;
11                  ii. that any statement he or she makes  may  be
12             used as evidence against him or her in court;
13                  iii.  that  he  or she has the right to have an
14             attorney present to advise him or her prior  to  and
15             during any questioning;
16                  iv.  that  if  he or she is unable to employ an
17             attorney, he  or  she  has  the  right  to  have  an
18             attorney appointed to advise him or her prior to and
19             during any questioning; and
20                  v.  that  he  or she has the right to terminate
21             the interrogation at any time.
22             (4) prior to the statement but during the recording,
23        the  minor  knowingly,  intelligently,  and   voluntarily
24        waives any rights described in paragraph (3);
25             (5)  the  recording  device was capable of making an
26        accurate recording, the operator was competent,  and  the
27        recording is accurate and has not been altered;
28             (6) all voices on the recording are identified;
29             (7)  not  later than the 20th day before the date of
30        the proceeding, the attorney representing  the  minor  is
31        provided  with a true, complete, and accurate copy of all
32        recordings of the minor made under this Section.
33        (c)  In addition to the requirements of subsection (b) of
34    this Section, no written statement  made  by  a  minor  as  a
 
                            -3-      LRB093 04402 RLC 04452 b
 1    result of a custodial interrogation is admissible as evidence
 2    against him or her in any proceeding under this Act unless it
 3    is shown on the face of the statement that:
 4             (1)  the  minor,  prior  to  making  the  statement,
 5        received  from the person to whom the statement is made a
 6        warning that:
 7                  (A)  he or she has the right to  remain  silent
 8             and  not  make  any  statement  at  all and that any
 9             statement he or she makes may be used against him or
10             her in any proceeding under this Act;
11                  (B)  any statement he or she makes may be  used
12             as evidence against him or her in court;
13                  (C)  he  or  she  has  the  right  to  have  an
14             attorney  present  to advise him or her prior to and
15             during any questioning;
16                  (D)  if he  or  she  is  unable  to  employ  an
17             attorney,  he  or  she  has  the  right  to  have an
18             attorney appointed to advise the minor prior to  and
19             during any questioning; and
20                  (E)  he  or  she has the right to terminate the
21             interrogation at any time.
22             (2)  the minor, prior to and during  the  making  of
23        the  statement, knowingly, intelligently, and voluntarily
24        waived the rights set out in the  warning  prescribed  by
25        item (1) of this subsection (c).
26        (d)  Every  electronic  video  and audio recording of any
27    statement made by a minor during  a  custodial  interrogation
28    must be preserved until such time as the minor's adjudication
29    for  any  offense  relating to the statement is final and all
30    direct and  habeas  corpus  appeals  are  exhausted,  or  the
31    prosecution of such offenses is barred by law.
32        (e) If the minor is a deaf person, the minor's statements
33    under  subsection  (b)  of  this  Section  are not admissible
34    against the minor unless the warnings in subsection  (b)  are
 
                            -4-      LRB093 04402 RLC 04452 b
 1    interpreted  to  the  deaf  person  by  an interpreter who is
 2    qualified and sworn as provided by Illinois law.
 3        (f) If the minor can prove, by  a  preponderance  of  the
 4    evidence,  that  he  or  she  was  subjected  to  a custodial
 5    interrogation prior to the custodial interrogation  that  was
 6    the  subject of the electronic video and audio recording, and
 7    if that prior custodial interrogation  was  not  recorded  as
 8    required  by  this  Section,  then any statements made by the
 9    minor  during  or  following  that   non-recorded   custodial
10    interrogation,  even  if  otherwise  in  compliance with this
11    Section, are inadmissible in any criminal proceeding  against
12    the minor except for the purposes of impeachment.
13        (g)  In  all  cases  where a question is raised as to the
14    voluntariness of a statement of a minor, the court must  make
15    an  independent  finding  in  the  absence  of the jury as to
16    whether the statement was made  under  voluntary  conditions.
17    If the statement has been found to have been voluntarily made
18    and  held admissible as a matter of law and fact by the court
19    in a hearing in the absence of the jury, the court must enter
20    an order stating its conclusion as  to  whether  or  not  the
21    statement  was  voluntarily  made,  along  with  the specific
22    finding of facts upon which the conclusion was  based,  which
23    order  shall  be  filed  among  the papers of the cause.  The
24    order may not be exhibited to the jury nor the finding of the
25    order made known to the jury in any manner.  Upon the finding
26    by the judge as a matter of law and fact that  the  statement
27    was  voluntarily  made, evidence pertaining to the matter may
28    be submitted to the jury and  it  shall  be  instructed  that
29    unless  a  jury  believes  beyond a reasonable doubt that the
30    statement was voluntarily made, the jury may not consider the
31    statement for any purpose nor  any  evidence  obtained  as  a
32    result  of  the  statement.  In any case in which a motion to
33    suppress the statement has been filed and evidence  has  been
34    submitted  to  the  court on this issue, the court within its
 
                            -5-      LRB093 04402 RLC 04452 b
 1    discretion may reconsider the evidence in  its  finding  that
 2    the  statement  was  voluntarily  made  and the same evidence
 3    submitted to the court  at  the  hearing  on  the  motion  to
 4    suppress shall be made a part of the record the same as if it
 5    were  being  presented  at  the  time of trial.  However, the
 6    State or the minor shall  be  entitled  to  present  any  new
 7    evidence  on  the issue of the voluntariness of the statement
 8    prior to the court's  final  ruling  and  order  stating  its
 9    findings.
10        (h)  Nothing  in this Section precludes the admission (i)
11    of a statement made  by  the  minor  in  open  court  in  any
12    proceeding  under  this  Act,  before  a  grand jury, or at a
13    preliminary hearing, (ii) of a  statement  that  is  the  res
14    gestae  of the arrest or of the offense, (iii) of a statement
15    that does not stem from custodial interrogation,  (iv)  of  a
16    statement  made during a custodial interrogation that was not
17    electronically recorded as required by this Section, provided
18    that a court finds by  clear  and  convincing  evidence  that
19    electronic  recording  of  the  minor's  statements  was  not
20    feasible,  (v)  of  a voluntary statement, whether or not the
21    result of custodial interrogation, that has a bearing on  the
22    credibility of the accused as a witness, or (vi) of any other
23    statement  that may be admissible under law.  The State shall
24    bear the  burden  of  proving,  by  a  preponderance  of  the
25    evidence,  that  one  of  the  exceptions  described  in this
26    subsection (h) is applicable, except  that  the  State  shall
27    bear  the  burden of proving by clear and convincing evidence
28    that the exception in subsection (iv) is applicable.  Nothing
29    in this Section  precludes  the  admission  of  a  statement,
30    otherwise  inadmissible under this Section, that is used only
31    for impeachment and not as substantive evidence.

32        Section 15.  The Criminal Code  of  1961  is  amended  by
33    changing Section 14-3 as follows:
 
                            -6-      LRB093 04402 RLC 04452 b
 1        (720 ILCS 5/14-3) (from Ch. 38, par. 14-3)
 2        Sec.  14-3.   Exemptions.  The following activities shall
 3    be exempt from the provisions of this Article:
 4        (a)  Listening  to   radio,   wireless   and   television
 5    communications of any sort where the same are publicly made;
 6        (b)  Hearing  conversation when heard by employees of any
 7    common carrier by wire incidental to  the  normal  course  of
 8    their  employment  in the operation, maintenance or repair of
 9    the equipment of such common carrier by wire so  long  as  no
10    information  obtained  thereby  is  used  or  divulged by the
11    hearer;
12        (c)  Any broadcast  by  radio,  television  or  otherwise
13    whether  it  be  a  broadcast  or recorded for the purpose of
14    later broadcasts of any  function  where  the  public  is  in
15    attendance  and the conversations are overheard incidental to
16    the main purpose for which such  broadcasts  are  then  being
17    made;
18        (d)  Recording or listening with the aid of any device to
19    any  emergency  communication  made  in  the normal course of
20    operations by any federal, state  or  local  law  enforcement
21    agency   or   institutions  dealing  in  emergency  services,
22    including, but not limited to, hospitals, clinics,  ambulance
23    services,   fire   fighting  agencies,  any  public  utility,
24    emergency repair facility, civilian defense establishment  or
25    military installation;
26        (e)  Recording the proceedings of any meeting required to
27    be open by the Open Meetings Act, as amended;
28        (f)  Recording or listening with the aid of any device to
29    incoming  telephone  calls  of phone lines publicly listed or
30    advertised  as  consumer  "hotlines"  by   manufacturers   or
31    retailers of food and drug products.  Such recordings must be
32    destroyed,  erased  or  turned  over to local law enforcement
33    authorities within 24 hours from the time of  such  recording
34    and shall not be otherwise disseminated.  Failure on the part
 
                            -7-      LRB093 04402 RLC 04452 b
 1    of the individual or business operating any such recording or
 2    listening  device  to  comply  with  the requirements of this
 3    subsection shall eliminate any  civil  or  criminal  immunity
 4    conferred  upon  that individual or business by the operation
 5    of this Section;
 6        (g)  With prior notification to the State's  Attorney  of
 7    the  county  in  which it is to occur, recording or listening
 8    with the aid of any device to any conversation  where  a  law
 9    enforcement officer, or any person acting at the direction of
10    law  enforcement,  is  a  party  to  the conversation and has
11    consented  to  it  being  intercepted   or   recorded   under
12    circumstances  where  the  use of the device is necessary for
13    the protection of the law enforcement officer or  any  person
14    acting  at the direction of law enforcement, in the course of
15    an investigation of a forcible felony, a felony violation  of
16    the Illinois Controlled Substances Act, a felony violation of
17    the  Cannabis  Control  Act,  or  any "streetgang related" or
18    "gang-related" felony as  those  terms  are  defined  in  the
19    Illinois  Streetgang  Terrorism  Omnibus Prevention Act.  Any
20    recording or evidence derived as the result of this exemption
21    shall be inadmissible in any proceeding, criminal,  civil  or
22    administrative,  except (i) where a party to the conversation
23    suffers  great  bodily  injury  or  is  killed  during   such
24    conversation,  or  (ii)  when used as direct impeachment of a
25    witness concerning matters contained in the  interception  or
26    recording.   The  Director  of the Department of State Police
27    shall issue regulations as are necessary concerning  the  use
28    of   devices,  retention  of  tape  recordings,  and  reports
29    regarding their use;
30        (h)  Recordings  made   simultaneously   with   a   video
31    recording  of  an  oral conversation between a peace officer,
32    who has identified his or her office, and  a  person  stopped
33    for an investigation of an offense under the Illinois Vehicle
34    Code;
 
                            -8-      LRB093 04402 RLC 04452 b
 1        (i)  Recording  of  a  conversation  made  by  or  at the
 2    request of a person, not a law enforcement officer  or  agent
 3    of  a  law  enforcement  officer,  who  is  a  party  to  the
 4    conversation,  under  reasonable suspicion that another party
 5    to the conversation is committing, is about to commit, or has
 6    committed a criminal offense against the person or  a  member
 7    of  his  or  her  immediate household, and there is reason to
 8    believe that evidence of the criminal offense may be obtained
 9    by the recording; and
10        (j)  The use of a telephone monitoring device  by  either
11    (1)  a  corporation  or  other  business  entity  engaged  in
12    marketing  or  opinion research or (2) a corporation or other
13    business entity engaged in telephone solicitation, as defined
14    in this subsection, to record or  listen  to  oral  telephone
15    solicitation  conversations  or marketing or opinion research
16    conversations by an employee  of  the  corporation  or  other
17    business entity when:
18             (i)  the  monitoring  is  used  for  the  purpose of
19        service quality control of marketing or opinion  research
20        or  telephone  solicitation, the education or training of
21        employees or contractors engaged in marketing or  opinion
22        research  or telephone solicitation, or internal research
23        related to marketing or  opinion  research  or  telephone
24        solicitation; and
25             (ii)  the  monitoring is used with the consent of at
26        least one person who is an active party to the  marketing
27        or    opinion    research   conversation   or   telephone
28        solicitation conversation being monitored.
29        No communication or conversation or any part, portion, or
30    aspect of the communication or conversation  made,  acquired,
31    or  obtained,  directly  or  indirectly, under this exemption
32    (j), may be, directly or indirectly,  furnished  to  any  law
33    enforcement  officer,  agency, or official for any purpose or
34    used in any inquiry or investigation, or  used,  directly  or
 
                            -9-      LRB093 04402 RLC 04452 b
 1    indirectly,   in   any  administrative,  judicial,  or  other
 2    proceeding, or divulged to any third party.
 3        When recording or listening authorized by this subsection
 4    (j) on telephone lines used for marketing or opinion research
 5    or telephone solicitation purposes results  in  recording  or
 6    listening to a conversation that does not relate to marketing
 7    or  opinion  research  or  telephone solicitation; the person
 8    recording or listening shall,  immediately  upon  determining
 9    that the conversation does not relate to marketing or opinion
10    research  or  telephone solicitation, terminate the recording
11    or listening and destroy any such recording  as  soon  as  is
12    practicable.
13        Business  entities  that  use  a  telephone monitoring or
14    telephone recording system pursuant  to  this  exemption  (j)
15    shall  provide  current and prospective employees with notice
16    that the monitoring or recordings may occur during the course
17    of their employment.   The  notice  shall  include  prominent
18    signage notification within the workplace.
19        Business  entities  that  use  a  telephone monitoring or
20    telephone recording system pursuant  to  this  exemption  (j)
21    shall  provide  their  employees  or  agents  with  access to
22    personal-only telephone lines which may  be  pay  telephones,
23    that  are  not  subject  to telephone monitoring or telephone
24    recording.
25        For the  purposes  of  this  subsection  (j),  "telephone
26    solicitation"  means  a  communication  through  the use of a
27    telephone by live operators:
28             (i)  soliciting the sale of goods or services;
29             (ii)  receiving orders for  the  sale  of  goods  or
30        services;
31             (iii)  assisting in the use of goods or services; or
32             (iv)  engaging  in the solicitation, administration,
33        or collection of bank or retail credit accounts.
34        For the purposes of this subsection  (j),  "marketing  or
 
                            -10-     LRB093 04402 RLC 04452 b
 1    opinion  research"  means  a  marketing  or  opinion research
 2    interview conducted by a live telephone  interviewer  engaged
 3    by  a  corporation  or  other business entity whose principal
 4    business is the design, conduct, and analysis  of  polls  and
 5    surveys  measuring  the opinions, attitudes, and responses of
 6    respondents  toward  products  and  services,  or  social  or
 7    political issues, or both.
 8        (k)  Electronic recordings, including but not limited to,
 9    motion  picture,  videotape,  or  other  visual   and   audio
10    recording, made of a custodial interrogation of an individual
11    by  a  law  enforcement  officer under Section 5-401.5 of the
12    Juvenile Court Act of 1987 or Section 103-2.1 of the Code  of
13    Criminal Procedure of 1963.
14    (Source: P.A. 91-357, eff. 7-29-99.)

15        Section  20.   The  Code of Criminal Procedure of 1963 is
16    amended by adding Section 103-2.1 as follows:

17        (725 ILCS 5/103-2.1 new)
18        Sec. 103-2.1.  When statements by accused may be used.
19        (a)  In this Section, a "written statement of an accused"
20    means a statement signed by the accused or a  statement  made
21    by  the  accused  in  his  or  her own handwriting or, if the
22    accused is unable to write, a statement bearing  his  or  her
23    mark, when the mark has been witnessed by a person other than
24    a peace officer.
25        (b)  No  oral,  written, or sign language statement of an
26    accused made as a result of a custodial  interrogation  shall
27    be admissible as evidence against the accused in any criminal
28    proceeding brought under Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3,
29    9-3.2,  9-3.3,  12-13, 12-14, 12-14.1, 12-15, or 12-16 of the
30    Criminal Code of 1961, unless:
31             (1) an electronic video and audio recording is  made
32        of the custodial interrogation;
 
                            -11-     LRB093 04402 RLC 04452 b
 1             (2)  prior to the custodial interrogation but during
 2        the  recording  the  accused  is  given   the   following
 3        warnings:
 4                  (i)  that  the  accused has the right to remain
 5             silent and not make any statement at all,  and  that
 6             any  statement the accused makes may be used against
 7             the accused at his or her trial;
 8                  (ii) that any statement the accused  makes  may
 9             be used as evidence against the accused in court;
10                  (iii) that the accused has the right to have an
11             attorney  present  to advise him or her prior to and
12             during any questioning;
13                  (iv) that if the accused is unable to employ an
14             attorney, he  or  she  has  the  right  to  have  an
15             attorney appointed to advise him or her prior to and
16             during any questioning; and
17                  (v)  that  he or she has the right to terminate
18             the interrogation at any time.
19             (3) prior to the statement but during the recording,
20        the accused  knowingly,  intelligently,  and  voluntarily
21        waives the rights described in paragraph (2);
22             (4)  the  recording  device was capable of making an
23        accurate recording, the operator was competent,  and  the
24        recording is accurate and has not been altered;
25             (5) all voices on the recording are identified;
26             (6)  not  later than the 20th day before the date of
27        the proceeding, the attorney representing  the  defendant
28        is  provided  with a true, complete, and accurate copy of
29        all recordings of the defendant made under this Section.
30        (c)  In addition to the requirements of subsection (b) of
31    this Section, no written statement made by an  accused  as  a
32    result of a custodial interrogation is admissible as evidence
33    against  his  or  her in any criminal proceeding unless it is
34    shown on the face of the statement that:
 
                            -12-     LRB093 04402 RLC 04452 b
 1             (1)  the accused, prior  to  making  the  statement,
 2        received  from the person to whom the statement is made a
 3        warning that:
 4                  (A)  he or she has the right to  remain  silent
 5             and  not  make  any  statement  at  all and that any
 6             statement he or she makes may be used against him or
 7             her at his or her trial;
 8                  (B)  any statement he or she makes may be  used
 9             as evidence against him or her in court;
10                  (C)  He  or  she  has  the  right  to  have  an
11             attorney  present  to advise him or her prior to and
12             during any questioning;
13                  (D)  if he  or  she  is  unable  to  employ  an
14             attorney,  he  or  she  has  the  right  to  have an
15             attorney appointed to advise him or her prior to and
16             during any questioning; and
17                  (E)  he or she has the right to  terminate  the
18             interrogation at any time.
19             (2)  the  accused, prior to and during the making of
20        the statement, knowingly, intelligently, and  voluntarily
21        waived  the  rights  set out in the warning prescribed by
22        item (1) of this subsection (c).
23        (d) Every electronic video and  audio  recording  of  any
24    statement made by an accused during a custodial interrogation
25    must   be  preserved  until  such  time  as  the  defendant's
26    conviction for any offense relating to the statement is final
27    and all direct and habeas corpus appeals  are  exhausted,  or
28    the prosecution of such offenses is barred by law.
29        (e)  If  the  accused  is  a  deaf  person, the accused's
30    statements under subsection  (b)  of  this  Section  are  not
31    admissible   against  the  accused  unless  the  warnings  in
32    subsection (b) are interpreted  to  the  deaf  person  by  an
33    interpreter  who  is  qualified  and  sworn  as  provided  by
34    Illinois law.
 
                            -13-     LRB093 04402 RLC 04452 b
 1        (f) If the defendant can prove, by a preponderance of the
 2    evidence,  that  he  or  she  was  subjected  to  a custodial
 3    interrogation prior to the custodial interrogation  that  was
 4    the  subject of the electronic video and audio recording, and
 5    if that prior custodial interrogation  was  not  recorded  as
 6    required  by  this  Section,  then any statements made by the
 7    defendant during or  following  that  non-recorded  custodial
 8    interrogation,  even  if  otherwise  in  compliance with this
 9    Section, are inadmissible in any criminal proceeding  against
10    the defendant except for the purposes of impeachment.
11        (g)  In  all  cases  where a question is raised as to the
12    voluntariness of a statement of an accused,  the  court  must
13    make  an independent finding in the absence of the jury as to
14    whether the statement was made  under  voluntary  conditions.
15    If the statement has been found to have been voluntarily made
16    and  held admissible as a matter of law and fact by the court
17    in a hearing in the absence of the jury, the court must enter
18    an order stating its conclusion as  to  whether  or  not  the
19    statement  was  voluntarily  made,  along  with  the specific
20    finding of facts upon which the conclusion was  based,  which
21    order  shall  be  filed  among  the papers of the cause.  The
22    order shall not be exhibited to the jury nor the  finding  of
23    the  order  made  known  to the jury in any manner.  Upon the
24    finding by the judge as a matter of law  and  fact  that  the
25    statement  was  voluntarily  made, evidence pertaining to the
26    matter  may  be  submitted  to  the  jury  and  it  shall  be
27    instructed that unless a jury believes  beyond  a  reasonable
28    doubt  that  the statement was voluntarily made, the jury may
29    not consider the statement for any purpose nor  any  evidence
30    obtained  as  a result of the statement.  In any case where a
31    motion to suppress the statement has been filed and  evidence
32    has  been  submitted  to  the  court on this issue, the court
33    within its discretion may  reconsider  the  evidence  in  its
34    finding  that the statement was voluntarily made and the same
 
                            -14-     LRB093 04402 RLC 04452 b
 1    evidence submitted to the court at the hearing on the  motion
 2    to suppress shall be made a part of the record the same as if
 3    it  were  being presented at the time of trial.  However, the
 4    State or the defendant shall be entitled to present  any  new
 5    evidence  on  the issue of the voluntariness of the statement
 6    prior to the court's  final  ruling  and  order  stating  its
 7    findings.
 8        (h)  Nothing  in this Section precludes the admission (i)
 9    of a statement made by the accused in open court  at  his  or
10    her  trial, before a grand jury, or at a preliminary hearing,
11    (ii) of a statement that is the res gestae of the  arrest  or
12    of  the offense, (iii) of a statement that does not stem from
13    custodial interrogation, (iv) of a statement  made  during  a
14    custodial  interrogation that was not electronically recorded
15    as required by this Section, provided that a court  finds  by
16    clear  and  convincing  evidence that electronic recording of
17    the accused's statements was not feasible, (v) of a voluntary
18    statement,  whether  or   not   the   result   of   custodial
19    interrogation,  that  has a bearing on the credibility of the
20    accused as a witness, or (vi) of any other statement that may
21    be admissible under law.  The State shall bear the burden  of
22    proving,  by a preponderance of the evidence, that one of the
23    exceptions described in this subsection  (h)  is  applicable,
24    except  that  the  State  shall bear the burden of proving by
25    clear and convincing evidence that the  exception  in  clause
26    (iv)  is  applicable.   Nothing in this Section precludes the
27    admission of a statement, otherwise inadmissible  under  this
28    Section,  that  is  used  only  for  impeachment  and  not as
29    substantive evidence.