093_HB0223eng

 
HB0223 Engrossed                     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 Illinois Criminal Justice Information Act
 5    is amended by adding Section 7.5 as follows:

 6        (20 ILCS 3930/7.5 new)
 7        Sec. 7.5.  Grants for electronic recording equipment.
 8        (a)  The  Authority,  from  appropriations made to it for
 9    that purpose, shall make  grants  to  local  law  enforcement
10    agencies   for   the  purpose  of  purchasing  equipment  for
11    electronic recording of interrogations.
12        (b)  The Authority shall promulgate  rules  to  implement
13    this Section.

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

16        (50 ILCS 705/10.3 new)
17        Sec.  10.3.  Training  of  police  officers  to   conduct
18    electronic  interrogations.    From appropriations made to it
19    for that purpose, the Board shall initiate,  administer,  and
20    conduct  training  programs  for  permanent  police officers,
21    part-time police officers, and recruits on  the  methods  and
22    technical  aspects  of  conducting  electronic  recordings of
23    interrogations.

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

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

17        Section 20.  The Criminal Code  of  1961  is  amended  by
18    changing Section 14-3 as follows:

19        (720 ILCS 5/14-3) (from Ch. 38, par. 14-3)
20        Sec.  14-3.   Exemptions.  The following activities shall
21    be exempt from the provisions of this Article:
22        (a)  Listening  to   radio,   wireless   and   television
23    communications of any sort where the same are publicly made;
24        (b)  Hearing  conversation when heard by employees of any
25    common carrier by wire incidental to  the  normal  course  of
26    their  employment  in the operation, maintenance or repair of
27    the equipment of such common carrier by wire so  long  as  no
28    information  obtained  thereby  is  used  or  divulged by the
29    hearer;
30        (c)  Any broadcast  by  radio,  television  or  otherwise
31    whether  it  be  a  broadcast  or recorded for the purpose of
32    later broadcasts of any  function  where  the  public  is  in
 
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 1    attendance  and the conversations are overheard incidental to
 2    the main purpose for which such  broadcasts  are  then  being
 3    made;
 4        (d)  Recording or listening with the aid of any device to
 5    any  emergency  communication  made  in  the normal course of
 6    operations by any federal, state  or  local  law  enforcement
 7    agency   or   institutions  dealing  in  emergency  services,
 8    including, but not limited to, hospitals, clinics,  ambulance
 9    services,   fire   fighting  agencies,  any  public  utility,
10    emergency repair facility, civilian defense establishment  or
11    military installation;
12        (e)  Recording the proceedings of any meeting required to
13    be open by the Open Meetings Act, as amended;
14        (f)  Recording or listening with the aid of any device to
15    incoming  telephone  calls  of phone lines publicly listed or
16    advertised  as  consumer  "hotlines"  by   manufacturers   or
17    retailers of food and drug products.  Such recordings must be
18    destroyed,  erased  or  turned  over to local law enforcement
19    authorities within 24 hours from the time of  such  recording
20    and shall not be otherwise disseminated.  Failure on the part
21    of the individual or business operating any such recording or
22    listening  device  to  comply  with  the requirements of this
23    subsection shall eliminate any  civil  or  criminal  immunity
24    conferred  upon  that individual or business by the operation
25    of this Section;
26        (g)  With prior notification to the State's  Attorney  of
27    the  county  in  which it is to occur, recording or listening
28    with the aid of any device to any conversation  where  a  law
29    enforcement officer, or any person acting at the direction of
30    law  enforcement,  is  a  party  to  the conversation and has
31    consented  to  it  being  intercepted   or   recorded   under
32    circumstances  where  the  use of the device is necessary for
33    the protection of the law enforcement officer or  any  person
34    acting  at the direction of law enforcement, in the course of
 
HB0223 Engrossed            -6-      LRB093 04402 RLC 04452 b
 1    an investigation of a forcible felony, a felony violation  of
 2    the Illinois Controlled Substances Act, a felony violation of
 3    the  Cannabis  Control  Act,  or  any "streetgang related" or
 4    "gang-related" felony as  those  terms  are  defined  in  the
 5    Illinois  Streetgang  Terrorism  Omnibus  Prevention Act. Any
 6    recording or evidence derived as the result of this exemption
 7    shall be inadmissible in any proceeding, criminal,  civil  or
 8    administrative,  except (i) where a party to the conversation
 9    suffers  great  bodily  injury  or  is  killed  during   such
10    conversation,  or  (ii)  when used as direct impeachment of a
11    witness concerning matters contained in the  interception  or
12    recording.   The  Director  of the Department of State Police
13    shall issue regulations as are necessary concerning  the  use
14    of   devices,  retention  of  tape  recordings,  and  reports
15    regarding their use;
16        (g-5)  With approval  of  the  State's  Attorney  of  the
17    county  in  which it is to occur, recording or listening with
18    the aid of  any  device  to  any  conversation  where  a  law
19    enforcement officer, or any person acting at the direction of
20    law  enforcement,  is  a  party  to  the conversation and has
21    consented to it being intercepted or recorded in  the  course
22    of  an investigation of any offense defined in Article 29D of
23    this Code. In all such cases, an  application  for  an  order
24    approving  the previous or continuing use of an eavesdropping
25    device must be made within 48 hours of  the  commencement  of
26    such  use.   In  the  absence  of  such an order, or upon its
27    denial, any continuing use shall immediately  terminate.  The
28    Director  of  State Police shall issue rules as are necessary
29    concerning the use of devices, retention of tape  recordings,
30    and reports regarding their use.
31        Any  recording  or  evidence  obtained  or derived in the
32    course of an investigation of any offense defined in  Article
33    29D  of  this Code shall, upon motion of the State's Attorney
34    or Attorney General prosecuting any violation of Article 29D,
 
HB0223 Engrossed            -7-      LRB093 04402 RLC 04452 b
 1    be reviewed in camera with notice to all parties  present  by
 2    the  court presiding over the criminal case, and, if ruled by
 3    the court to be relevant and otherwise admissible,  it  shall
 4    be admissible at the trial of the criminal case.
 5        This subsection (g-5) is inoperative on and after January
 6    1,  2005.  No conversations recorded or monitored pursuant to
 7    this subsection (g-5) shall be inadmissable in a court of law
 8    by virtue of the repeal of this subsection (g-5)  on  January
 9    1, 2005.
10        (h)  Recordings   made   simultaneously   with   a  video
11    recording of an oral conversation between  a  peace  officer,
12    who  has  identified  his or her office, and a person stopped
13    for an investigation of an offense under the Illinois Vehicle
14    Code;
15        (i)  Recording of  a  conversation  made  by  or  at  the
16    request  of  a person, not a law enforcement officer or agent
17    of  a  law  enforcement  officer,  who  is  a  party  to  the
18    conversation, under reasonable suspicion that  another  party
19    to the conversation is committing, is about to commit, or has
20    committed  a  criminal offense against the person or a member
21    of his or her immediate household, and  there  is  reason  to
22    believe that evidence of the criminal offense may be obtained
23    by the recording; and
24        (j)  The  use  of a telephone monitoring device by either
25    (1)  a  corporation  or  other  business  entity  engaged  in
26    marketing or opinion research or (2) a corporation  or  other
27    business entity engaged in telephone solicitation, as defined
28    in  this  subsection,  to  record or listen to oral telephone
29    solicitation conversations or marketing or  opinion  research
30    conversations  by  an  employee  of  the corporation or other
31    business entity when:
32             (i)  the monitoring  is  used  for  the  purpose  of
33        service  quality control of marketing or opinion research
34        or telephone solicitation, the education or  training  of
 
HB0223 Engrossed            -8-      LRB093 04402 RLC 04452 b
 1        employees  or contractors engaged in marketing or opinion
 2        research or telephone solicitation, or internal  research
 3        related  to  marketing  or  opinion research or telephone
 4        solicitation; and
 5             (ii)  the monitoring is used with the consent of  at
 6        least  one person who is an active party to the marketing
 7        or   opinion   research   conversation    or    telephone
 8        solicitation conversation being monitored.
 9        No communication or conversation or any part, portion, or
10    aspect  of  the communication or conversation made, acquired,
11    or obtained, directly or  indirectly,  under  this  exemption
12    (j),  may  be,  directly  or indirectly, furnished to any law
13    enforcement officer, agency, or official for any  purpose  or
14    used  in  any  inquiry or investigation, or used, directly or
15    indirectly,  in  any  administrative,  judicial,   or   other
16    proceeding, or divulged to any third party.
17        When recording or listening authorized by this subsection
18    (j) on telephone lines used for marketing or opinion research
19    or  telephone  solicitation  purposes results in recording or
20    listening to a conversation that does not relate to marketing
21    or opinion research or  telephone  solicitation;  the  person
22    recording  or  listening  shall, immediately upon determining
23    that the conversation does not relate to marketing or opinion
24    research or telephone solicitation, terminate  the  recording
25    or  listening  and  destroy  any such recording as soon as is
26    practicable.
27        Business entities that  use  a  telephone  monitoring  or
28    telephone  recording  system  pursuant  to this exemption (j)
29    shall provide current and prospective employees  with  notice
30    that the monitoring or recordings may occur during the course
31    of  their  employment.   The  notice  shall include prominent
32    signage notification within the workplace.
33        Business entities that  use  a  telephone  monitoring  or
34    telephone  recording  system  pursuant  to this exemption (j)
 
HB0223 Engrossed            -9-      LRB093 04402 RLC 04452 b
 1    shall provide  their  employees  or  agents  with  access  to
 2    personal-only  telephone  lines  which may be pay telephones,
 3    that are not subject to  telephone  monitoring  or  telephone
 4    recording.
 5        For  the  purposes  of  this  subsection  (j), "telephone
 6    solicitation" means a communication  through  the  use  of  a
 7    telephone by live operators:
 8             (i)  soliciting the sale of goods or services;
 9             (ii)  receiving  orders  for  the  sale  of goods or
10        services;
11             (iii)  assisting in the use of goods or services; or
12             (iv)  engaging in the solicitation,  administration,
13        or collection of bank or retail credit accounts.
14        For  the  purposes  of this subsection (j), "marketing or
15    opinion research"  means  a  marketing  or  opinion  research
16    interview  conducted  by a live telephone interviewer engaged
17    by a corporation or other  business  entity  whose  principal
18    business  is  the  design, conduct, and analysis of polls and
19    surveys measuring the opinions, attitudes, and  responses  of
20    respondents  toward  products  and  services,  or  social  or
21    political issues, or both.
22        (k)  Electronic recordings, including but not limited to,
23    a  motion  picture,  videotape,  digital,  or other visual or
24    audio recording, made of  a  custodial  interrogation  of  an
25    individual at a police station or other place of detention by
26    a  law  enforcement  officer  under  Section  5-401.5  of the
27    Juvenile Court Act of 1987 or Section 103-2.1 of the Code  of
28    Criminal Procedure of 1963.
29    (Source: P.A. 91-357, eff. 7-29-99; 92-854, eff. 12-5-02.)

30        Section  25.   The  Code of Criminal Procedure of 1963 is
31    amended by adding Section 103-2.1 as follows:

32        (725 ILCS 5/103-2.1 new)
 
HB0223 Engrossed            -10-     LRB093 04402 RLC 04452 b
 1        Sec. 103-2.1.  When statements by accused may be used.
 2        (a)  In this Section, "custodial interrogation" means any
 3    interrogation during which (i) a  reasonable  person  in  the
 4    subject's position would consider himself or herself to be in
 5    custody  and  (ii)  during  which a question is asked that is
 6    reasonably likely to elicit an incriminating response.
 7        In this Section, "place of detention" means a building or
 8    a police station that is a place of operation for a municipal
 9    police department or county sheriff department or  other  law
10    enforcement  agency,  not  a  courthouse,  that  is  owned or
11    operated by a law enforcement agency at which persons are  or
12    may  be held in detention in connection with criminal charges
13    against those persons.
14        In this Section, "electronic recording"  includes  motion
15    picture, audiotape, or videotape, or digital recording.
16        (b)  An  oral,  written, or sign language statement of an
17    accused made as a result of a custodial  interrogation  at  a
18    police  station or other place of detention shall be presumed
19    to be inadmissible as evidence against  the  accused  in  any
20    criminal  proceeding  brought  under Section 9-1, 9-1.2, 9-2,
21    9-2.1, 9-3, 9-3.2, or 9-3.3 of  the  Criminal  Code  of  1961
22    unless:
23             (1) an electronic recording is made of the custodial
24        interrogation; and
25             (2)  the recording is substantially accurate and not
26        intentionally altered.
27        (c)  Every  electronic  recording  required  under   this
28    Section  must be preserved until such time as the defendant's
29    conviction for any offense relating to the statement is final
30    and all direct and habeas corpus appeals  are  exhausted,  or
31    the prosecution of such offenses is barred by law.
32        (d)  If  the  court  finds,  by  a  preponderance  of the
33    evidence, that the defendant was  subjected  to  a  custodial
34    interrogation   in   violation  of  this  Section,  then  any
 
HB0223 Engrossed            -11-     LRB093 04402 RLC 04452 b
 1    statements made by the defendant  during  or  following  that
 2    non-recorded  custodial  interrogation,  even if otherwise in
 3    compliance with this Section, are presumed to be inadmissible
 4    in any criminal proceeding against the defendant  except  for
 5    the purposes of impeachment.
 6        (e)  Nothing  in this Section precludes the admission (i)
 7    of a statement made by the accused in open court  at  his  or
 8    her  trial, before a grand jury, or at a preliminary hearing,
 9    (ii) of a statement made  during  a  custodial  interrogation
10    that  was  not  recorded as required by this Section, because
11    electronic recording was not feasible, (iii) of  a  voluntary
12    statement,   whether   or  not  the  result  of  a  custodial
13    interrogation, that has a bearing on the credibility  of  the
14    accused as a witness, (iv) of a spontaneous statement that is
15    not  made  in response to a question, (v) of a statement made
16    after  questioning  that  is  routinely  asked   during   the
17    processing  of the arrest of the suspect, (vi) of a statement
18    made during  a  custodial  interrogation  by  a  suspect  who
19    requests,  prior  to  making the statement, to respond to the
20    interrogator's questions only if an electronic  recording  is
21    not  made  of  the  statement,  provided  that  an electronic
22    recording is made of the statement of agreeing to respond  to
23    the  interrogator's question, only if a recording is not made
24    of  the  statement,  (vii)  of  a  statement  made  during  a
25    custodial  interrogation  that  is  conducted   out-of-state,
26    (viii)  of a statement given at a time when the interrogators
27    are unaware that a death has in fact occurred, or (ix) of any
28    other statement that may be admissible under law.  The  State
29    shall  bear  the burden of proving, by a preponderance of the
30    evidence, that  one  of  the  exceptions  described  in  this
31    subsection  (e)  is  applicable.    Nothing  in  this Section
32    precludes   the   admission   of   a   statement,   otherwise
33    inadmissible under  this  Section,  that  is  used  only  for
34    impeachment and not as substantive evidence.
 
HB0223 Engrossed            -12-     LRB093 04402 RLC 04452 b
 1        (f)  The  presumption  of  inadmissibility of a statement
 2    made by  a  suspect  at  a  custodial  interrogation  may  be
 3    overcome   by  a  preponderance  of  the  evidence  that  the
 4    statement was voluntarily given and is reliable, based on the
 5    totality of the circumstances.
 6        (g)  Any electronic recording of any statement made by an
 7    accused during a custodial interrogation that is compiled  by
 8    any  law  enforcement  agency as required by this Section for
 9    the purposes of fulfilling the requirements of  this  Section
10    shall  be  confidential and exempt from public inspection and
11    copying, as provided  under  Section  7  of  the  Freedom  of
12    Information Act, and the information shall not be transmitted
13    to anyone except as needed to comply with this Section.

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

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

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