093_HB0223ham002











                                     LRB093 04402 RLC 13779 a

 1                     AMENDMENT TO HOUSE BILL 223

 2        AMENDMENT NO.     .  Amend House Bill 223, AS AMENDED, as
 3    follows:

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

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

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

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

18        (50 ILCS 705/10.3 new)
19        Sec.   10.3.  Training  of  police  officers  to  conduct
 
                            -2-      LRB093 04402 RLC 13779 a
 1    electronic interrogations.  From appropriations  made  to  it
 2    for  that  purpose, the Board shall initiate, administer, and
 3    conduct training  programs  for  permanent  police  officers,
 4    part-time  police  officers,  and recruits on the methods and
 5    technical aspects  of  conducting  electronic  recordings  of
 6    interrogations.

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

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

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

31        (720 ILCS 5/14-3) (from Ch. 38, par. 14-3)
32        Sec. 14-3.  Exemptions.  The following  activities  shall
 
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 1    be exempt from the provisions of this Article:
 2        (a)  Listening   to   radio,   wireless   and  television
 3    communications of any sort where the same are publicly made;
 4        (b)  Hearing conversation when heard by employees of  any
 5    common  carrier  by  wire  incidental to the normal course of
 6    their employment in the operation, maintenance or  repair  of
 7    the  equipment  of  such common carrier by wire so long as no
 8    information obtained thereby  is  used  or  divulged  by  the
 9    hearer;
10        (c)  Any  broadcast  by  radio,  television  or otherwise
11    whether it be a broadcast or  recorded  for  the  purpose  of
12    later  broadcasts  of  any  function  where  the public is in
13    attendance and the conversations are overheard incidental  to
14    the  main  purpose  for  which such broadcasts are then being
15    made;
16        (d)  Recording or listening with the aid of any device to
17    any emergency communication made  in  the  normal  course  of
18    operations  by  any  federal,  state or local law enforcement
19    agency  or  institutions  dealing  in   emergency   services,
20    including,  but not limited to, hospitals, clinics, ambulance
21    services,  fire  fighting  agencies,  any   public   utility,
22    emergency  repair facility, civilian defense establishment or
23    military installation;
24        (e)  Recording the proceedings of any meeting required to
25    be open by the Open Meetings Act, as amended;
26        (f)  Recording or listening with the aid of any device to
27    incoming telephone calls of phone lines  publicly  listed  or
28    advertised   as   consumer  "hotlines"  by  manufacturers  or
29    retailers of food and drug products.  Such recordings must be
30    destroyed, erased or turned over  to  local  law  enforcement
31    authorities  within  24 hours from the time of such recording
32    and shall not be otherwise disseminated.  Failure on the part
33    of the individual or business operating any such recording or
34    listening device to comply  with  the  requirements  of  this
 
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 1    subsection  shall  eliminate  any  civil or criminal immunity
 2    conferred upon that individual or business by  the  operation
 3    of this Section;
 4        (g)  With  prior  notification to the State's Attorney of
 5    the county in which it is to occur,  recording  or  listening
 6    with  the  aid  of any device to any conversation where a law
 7    enforcement officer, or any person acting at the direction of
 8    law enforcement, is a  party  to  the  conversation  and  has
 9    consented   to   it   being  intercepted  or  recorded  under
10    circumstances where the use of the device  is  necessary  for
11    the  protection  of the law enforcement officer or any person
12    acting at the direction of law enforcement, in the course  of
13    an  investigation of a forcible felony, a felony violation of
14    the Illinois Controlled Substances Act, a felony violation of
15    the Cannabis Control Act,  or  any  "streetgang  related"  or
16    "gang-related"  felony  as  those  terms  are  defined in the
17    Illinois Streetgang Terrorism  Omnibus  Prevention  Act.  Any
18    recording or evidence derived as the result of this exemption
19    shall  be  inadmissible in any proceeding, criminal, civil or
20    administrative, except (i) where a party to the  conversation
21    suffers   great  bodily  injury  or  is  killed  during  such
22    conversation, or (ii) when used as direct  impeachment  of  a
23    witness  concerning  matters contained in the interception or
24    recording.  The Director of the Department  of  State  Police
25    shall  issue  regulations as are necessary concerning the use
26    of  devices,  retention  of  tape  recordings,  and   reports
27    regarding their use;
28        (g-5)  With  approval  of  the  State's  Attorney  of the
29    county in which it is to occur, recording or  listening  with
30    the  aid  of  any  device  to  any  conversation  where a law
31    enforcement officer, or any person acting at the direction of
32    law enforcement, is a  party  to  the  conversation  and  has
33    consented  to  it being intercepted or recorded in the course
34    of an investigation of any offense defined in Article 29D  of
 
                            -7-      LRB093 04402 RLC 13779 a
 1    this  Code.  In  all  such cases, an application for an order
 2    approving the previous or continuing use of an  eavesdropping
 3    device  must  be  made within 48 hours of the commencement of
 4    such use.  In the absence of  such  an  order,  or  upon  its
 5    denial,  any  continuing use shall immediately terminate. The
 6    Director of State Police shall issue rules as  are  necessary
 7    concerning  the use of devices, retention of tape recordings,
 8    and reports regarding their use.
 9        Any recording or evidence  obtained  or  derived  in  the
10    course  of an investigation of any offense defined in Article
11    29D of this Code shall, upon motion of the  State's  Attorney
12    or Attorney General prosecuting any violation of Article 29D,
13    be  reviewed  in camera with notice to all parties present by
14    the court presiding over the criminal case, and, if ruled  by
15    the  court  to be relevant and otherwise admissible, it shall
16    be admissible at the trial of the criminal case.
17        This subsection (g-5) is inoperative on and after January
18    1, 2005. No conversations recorded or monitored  pursuant  to
19    this subsection (g-5) shall be inadmissable in a court of law
20    by  virtue  of the repeal of this subsection (g-5) on January
21    1, 2005.
22        (h)  Recordings  made   simultaneously   with   a   video
23    recording  of  an  oral conversation between a peace officer,
24    who has identified his or her office, and  a  person  stopped
25    for an investigation of an offense under the Illinois Vehicle
26    Code;
27        (i)  Recording  of  a  conversation  made  by  or  at the
28    request of a person, not a law enforcement officer  or  agent
29    of  a  law  enforcement  officer,  who  is  a  party  to  the
30    conversation,  under  reasonable suspicion that another party
31    to the conversation is committing, is about to commit, or has
32    committed a criminal offense against the person or  a  member
33    of  his  or  her  immediate household, and there is reason to
34    believe that evidence of the criminal offense may be obtained
 
                            -8-      LRB093 04402 RLC 13779 a
 1    by the recording; and
 2        (j)  The use of a telephone monitoring device  by  either
 3    (1)  a  corporation  or  other  business  entity  engaged  in
 4    marketing  or  opinion research or (2) a corporation or other
 5    business entity engaged in telephone solicitation, as defined
 6    in this subsection, to record or  listen  to  oral  telephone
 7    solicitation  conversations  or marketing or opinion research
 8    conversations by an employee  of  the  corporation  or  other
 9    business entity when:
10             (i)  the  monitoring  is  used  for  the  purpose of
11        service quality control of marketing or opinion  research
12        or  telephone  solicitation, the education or training of
13        employees or contractors engaged in marketing or  opinion
14        research  or telephone solicitation, or internal research
15        related to marketing or  opinion  research  or  telephone
16        solicitation; and
17             (ii)  the  monitoring is used with the consent of at
18        least one person who is an active party to the  marketing
19        or    opinion    research   conversation   or   telephone
20        solicitation conversation being monitored.
21        No communication or conversation or any part, portion, or
22    aspect of the communication or conversation  made,  acquired,
23    or  obtained,  directly  or  indirectly, under this exemption
24    (j), may be, directly or indirectly,  furnished  to  any  law
25    enforcement  officer,  agency, or official for any purpose or
26    used in any inquiry or investigation, or  used,  directly  or
27    indirectly,   in   any  administrative,  judicial,  or  other
28    proceeding, or divulged to any third party.
29        When recording or listening authorized by this subsection
30    (j) on telephone lines used for marketing or opinion research
31    or telephone solicitation purposes results  in  recording  or
32    listening to a conversation that does not relate to marketing
33    or  opinion  research  or  telephone solicitation; the person
34    recording or listening shall,  immediately  upon  determining
 
                            -9-      LRB093 04402 RLC 13779 a
 1    that the conversation does not relate to marketing or opinion
 2    research  or  telephone solicitation, terminate the recording
 3    or listening and destroy any such recording  as  soon  as  is
 4    practicable.
 5        Business  entities  that  use  a  telephone monitoring or
 6    telephone recording system pursuant  to  this  exemption  (j)
 7    shall  provide  current and prospective employees with notice
 8    that the monitoring or recordings may occur during the course
 9    of their employment.   The  notice  shall  include  prominent
10    signage notification within the workplace.
11        Business  entities  that  use  a  telephone monitoring or
12    telephone recording system pursuant  to  this  exemption  (j)
13    shall  provide  their  employees  or  agents  with  access to
14    personal-only telephone lines which may  be  pay  telephones,
15    that  are  not  subject  to telephone monitoring or telephone
16    recording.
17        For the  purposes  of  this  subsection  (j),  "telephone
18    solicitation"  means  a  communication  through  the use of a
19    telephone by live operators:
20             (i)  soliciting the sale of goods or services;
21             (ii)  receiving orders for  the  sale  of  goods  or
22        services;
23             (iii)  assisting in the use of goods or services; or
24             (iv)  engaging  in the solicitation, administration,
25        or collection of bank or retail credit accounts.
26        For the purposes of this subsection  (j),  "marketing  or
27    opinion  research"  means  a  marketing  or  opinion research
28    interview conducted by a live telephone  interviewer  engaged
29    by  a  corporation  or  other business entity whose principal
30    business is the design, conduct, and analysis  of  polls  and
31    surveys  measuring  the opinions, attitudes, and responses of
32    respondents  toward  products  and  services,  or  social  or
33    political issues, or both.
34        (k)  Electronic recordings, including but not limited to,
 
                            -10-     LRB093 04402 RLC 13779 a
 1    a motion picture, videotape,  digital,  or  other  visual  or
 2    audio  recording,  made  of  a  custodial interrogation of an
 3    individual at a police station or other place of detention by
 4    a law  enforcement  officer  under  Section  5-401.5  of  the
 5    Juvenile  Court Act of 1987 or Section 103-2.1 of the Code of
 6    Criminal Procedure of 1963.
 7    (Source: P.A. 91-357, eff. 7-29-99; 92-854, eff. 12-5-02.)

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

10        (725 ILCS 5/103-2.1 new)
11        Sec. 103-2.1.  When statements by accused may be used.
12        (a)  In this Section, "custodial interrogation" means any
13    interrogation  during  which  (i)  a reasonable person in the
14    subject's position would consider himself or herself to be in
15    custody and (ii) during which a question  is  asked  that  is
16    reasonably likely to elicit an incriminating response.
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,  not  a  courthouse,  that  is  owned  or
21    operated  by a law enforcement agency at which persons are or
22    may be held in detention in connection with criminal  charges
23    against those persons.
24        In  this  Section, "electronic recording" includes motion
25    picture, audiotape, or videotape, or digital recording.
26        (b) An oral, written, or sign language  statement  of  an
27    accused  made  as  a result of a custodial interrogation at a
28    police station or other place of detention shall be  presumed
29    to  be  inadmissible  as  evidence against the accused in any
30    criminal proceeding brought under Section  9-1,  9-1.2,  9-2,
31    9-2.1,  9-3,  9-3.2,  or  9-3.3  of the Criminal Code of 1961
32    unless:
 
                            -11-     LRB093 04402 RLC 13779 a
 1             (1) an electronic recording is made of the custodial
 2        interrogation; and
 3             (2) the recording is substantially accurate and  not
 4        intentionally altered.
 5        (c)   Every  electronic  recording  required  under  this
 6    Section must be preserved until such time as the  defendant's
 7    conviction for any offense relating to the statement is final
 8    and  all  direct  and habeas corpus appeals are exhausted, or
 9    the prosecution of such offenses is barred by law.
10        (d) If  the  court  finds,  by  a  preponderance  of  the
11    evidence,  that  the  defendant  was subjected to a custodial
12    interrogation  in  violation  of  this  Section,   then   any
13    statements  made  by  the  defendant during or following that
14    non-recorded custodial interrogation, even  if  otherwise  in
15    compliance with this Section, are presumed to be inadmissible
16    in  any  criminal proceeding against the defendant except for
17    the purposes of impeachment.
18        (e) Nothing in this Section precludes the  admission  (i)
19    of  a  statement  made by the accused in open court at his or
20    her trial, before a grand jury, or at a preliminary  hearing,
21    (ii)  of  a  statement  made during a custodial interrogation
22    that was not recorded as required by  this  Section,  because
23    electronic  recording  was not feasible, (iii) of a voluntary
24    statement,  whether  or  not  the  result  of   a   custodial
25    interrogation,  that  has a bearing on the credibility of the
26    accused as a witness, (iv) of a spontaneous statement that is
27    not made in response to a question, (v) of a  statement  made
28    after   questioning   that  is  routinely  asked  during  the
29    processing of the arrest of the suspect, (vi) of a  statement
30    made  during  a  custodial  interrogation  by  a  suspect who
31    requests, prior to making the statement, to  respond  to  the
32    interrogator's  questions  only if an electronic recording is
33    not made  of  the  statement,  provided  that  an  electronic
34    recording  is made of the statement of agreeing to respond to
 
                            -12-     LRB093 04402 RLC 13779 a
 1    the interrogator's question, only if a recording is not  made
 2    of  the  statement,  (vii)  of  a  statement  made  during  a
 3    custodial   interrogation  that  is  conducted  out-of-state,
 4    (viii) of a statement given at a time when the  interrogators
 5    are unaware that a death has in fact occurred, or (ix) of any
 6    other  statement that may be admissible under law.  The State
 7    shall bear the burden of proving, by a preponderance  of  the
 8    evidence,  that  one  of  the  exceptions  described  in this
 9    subsection (e)  is  applicable.    Nothing  in  this  Section
10    precludes   the   admission   of   a   statement,   otherwise
11    inadmissible  under  this  Section,  that  is  used  only for
12    impeachment and not as substantive evidence.
13        (f)  The presumption of inadmissibility  of  a  statement
14    made  by  a  suspect  at  a  custodial  interrogation  may be
15    overcome  by  a  preponderance  of  the  evidence  that   the
16    statement was voluntarily given and is reliable, based on the
17    totality of the circumstances.
18        (g)  Any electronic recording of any statement made by an
19    accused  during a custodial interrogation that is compiled by
20    any law enforcement agency as required by  this  Section  for
21    the  purposes  of fulfilling the requirements of this Section
22    shall be confidential and exempt from public  inspection  and
23    copying,  as  provided  under  Section  7  of  the Freedom of
24    Information Act, and the information shall not be transmitted
25    to anyone except as needed to comply with this Section.

26        Section 95.  The State Mandates Act is amended by  adding
27    Section 8.27 as follows:

28        (30 ILCS 805/8.27 new)
29        Sec.  8.27.  Exempt  mandate.  Notwithstanding Sections 6
30    and 8 of this Act, no reimbursement by the State is  required
31    for  the  implementation  of  any  mandate  created  by  this
32    amendatory Act of the 93rd General Assembly.
 
                            -13-     LRB093 04402 RLC 13779 a
 1        Section  99.  Effective date.  Sections 5, 10, 20, and 95
 2    of this Act and this Section 99  take  effect  upon  becoming
 3    law.   Sections  15  and  25  of this Act take effect 2 years
 4    after becoming law.".