Full Text of HB0802 98th General Assembly
HB0802sam001 98TH GENERAL ASSEMBLY | Sen. Kwame Raoul Filed: 5/20/2014
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| 1 | | AMENDMENT TO HOUSE BILL 802
| 2 | | AMENDMENT NO. ______. Amend House Bill 802 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Criminal Code of 2012 is amended by | 5 | | changing Section 14-3 as follows: | 6 | | (720 ILCS 5/14-3) | 7 | | Sec. 14-3. Exemptions. The following activities shall be
| 8 | | exempt from the provisions of this Article: | 9 | | (a) Listening to radio, wireless and television | 10 | | communications of
any sort where the same are publicly made; | 11 | | (b) Hearing conversation when heard by employees of any | 12 | | common
carrier by wire incidental to the normal course of their | 13 | | employment in
the operation, maintenance or repair of the | 14 | | equipment of such common
carrier by wire so long as no | 15 | | information obtained thereby is used or
divulged by the hearer; | 16 | | (c) Any broadcast by radio, television or otherwise whether |
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| 1 | | it be a
broadcast or recorded for the purpose of later | 2 | | broadcasts of any
function where the public is in attendance | 3 | | and the conversations are
overheard incidental to the main | 4 | | purpose for which such broadcasts are
then being made; | 5 | | (d) Recording or listening with the aid of any device to | 6 | | any
emergency communication made in the normal course of | 7 | | operations by any
federal, state or local law enforcement | 8 | | agency or institutions dealing
in emergency services, | 9 | | including, but not limited to, hospitals,
clinics, ambulance | 10 | | services, fire fighting agencies, any public utility,
| 11 | | emergency repair facility, civilian defense establishment or | 12 | | military
installation; | 13 | | (e) Recording the proceedings of any meeting required to be | 14 | | open by
the Open Meetings Act, as amended; | 15 | | (f) Recording or listening with the aid of any device to | 16 | | incoming
telephone calls of phone lines publicly listed or | 17 | | advertised as consumer
"hotlines" by manufacturers or | 18 | | retailers of food and drug products. Such
recordings must be | 19 | | destroyed, erased or turned over to local law
enforcement | 20 | | authorities within 24 hours from the time of such recording and
| 21 | | shall not be otherwise disseminated. Failure on the part of the | 22 | | individual
or business operating any such recording or | 23 | | listening device to comply with
the requirements of this | 24 | | subsection shall eliminate any civil or criminal
immunity | 25 | | conferred upon that individual or business by the operation of
| 26 | | this Section; |
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| 1 | | (g) With prior notification to the State's Attorney of the
| 2 | | county in which
it is to occur, recording or listening with the | 3 | | aid of any device to any
conversation
where a law enforcement | 4 | | officer, or any person acting at the direction of law
| 5 | | enforcement, is a party to the conversation and has consented | 6 | | to it being
intercepted or recorded under circumstances where | 7 | | the use of the device is
necessary for the protection of the | 8 | | law enforcement officer or any person
acting at the direction | 9 | | of law enforcement, in the course of an
investigation
of a | 10 | | forcible felony, a felony offense of involuntary servitude, | 11 | | involuntary sexual servitude of a minor, or trafficking in | 12 | | persons under Section 10-9 of this Code, an offense involving | 13 | | prostitution, solicitation of a sexual act, or pandering, a | 14 | | felony violation of the Illinois Controlled Substances
Act, a | 15 | | felony violation of the Cannabis Control Act, a felony | 16 | | violation of the Methamphetamine Control and Community | 17 | | Protection Act, any "streetgang
related" or "gang-related" | 18 | | felony as those terms are defined in the Illinois
Streetgang | 19 | | Terrorism Omnibus Prevention Act, or any felony offense | 20 | | involving any weapon listed in paragraphs (1) through (11) of | 21 | | subsection (a) of Section 24-1 of this Code.
Any recording or | 22 | | evidence derived
as the
result of this exemption shall be | 23 | | inadmissible in any proceeding, criminal,
civil or
| 24 | | administrative, except (i) where a party to the conversation | 25 | | suffers great
bodily injury or is killed during such | 26 | | conversation, or
(ii)
when used as direct impeachment of a |
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| 1 | | witness concerning matters contained in
the interception or | 2 | | recording. The Director of the
Department of
State Police shall | 3 | | issue regulations as are necessary concerning the use of
| 4 | | devices, retention of tape recordings, and reports regarding | 5 | | their
use; | 6 | | (g-5) With approval of the State's Attorney of the county | 7 | | in
which it is to occur, recording or listening with the aid of | 8 | | any device to any
conversation where a law enforcement officer, | 9 | | or any person acting at the
direction of law enforcement, is a | 10 | | party to the conversation and has consented
to it being | 11 | | intercepted or recorded in the course of an investigation of | 12 | | any
offense defined in Article 29D of this Code.
In all such | 13 | | cases, an application for an order approving
the previous or | 14 | | continuing use of an eavesdropping
device must be made within | 15 | | 48 hours of the commencement of
such use. In the absence of | 16 | | such an order, or upon its denial,
any continuing use shall | 17 | | immediately terminate.
The Director of
State Police shall issue | 18 | | rules as are necessary concerning the use of
devices, retention | 19 | | of tape recordings, and reports regarding their use. | 20 | | Any recording or evidence obtained or derived in the course | 21 | | of an
investigation of any offense defined in Article 29D of | 22 | | this Code shall, upon
motion of the State's Attorney or | 23 | | Attorney General prosecuting any violation of
Article 29D, be | 24 | | reviewed in camera with notice to all parties present by the
| 25 | | court presiding over the criminal
case, and, if ruled by the | 26 | | court to be relevant and otherwise admissible,
it shall be |
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| 1 | | admissible at the trial of the criminal
case. | 2 | | This subsection (g-5) is inoperative on and after January | 3 | | 1, 2005.
No conversations recorded or monitored pursuant to | 4 | | this subsection (g-5)
shall be inadmissible in a court of law | 5 | | by virtue of the repeal of this
subsection (g-5) on January 1, | 6 | | 2005; | 7 | | (g-6) With approval of the State's Attorney of the county | 8 | | in which it is to occur, recording or listening with the aid of | 9 | | any device to any conversation where a law enforcement officer, | 10 | | or any person acting at the direction of law enforcement, is a | 11 | | party to the conversation and has consented to it being | 12 | | intercepted or recorded in the course of an investigation of | 13 | | involuntary servitude, involuntary sexual servitude of a | 14 | | minor, trafficking in persons, child pornography, aggravated | 15 | | child pornography, indecent solicitation of a child, child | 16 | | abduction, luring of a minor, sexual exploitation of a child, | 17 | | predatory criminal sexual assault of a child, aggravated | 18 | | criminal sexual abuse in which the victim of the offense was at | 19 | | the time of the commission of the offense under 18 years of | 20 | | age, criminal sexual abuse by force or threat of force in which | 21 | | the victim of the offense was at the time of the commission of | 22 | | the offense under 18 years of age, or aggravated criminal | 23 | | sexual assault in which the victim of the offense was at the | 24 | | time of the commission of the offense under 18 years of age. In | 25 | | all such cases, an application for an order approving the | 26 | | previous or continuing use of an eavesdropping device must be |
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| 1 | | made within 48 hours of the commencement of such use. In the | 2 | | absence of such an order, or upon its denial, any continuing | 3 | | use shall immediately terminate. The Director of State Police | 4 | | shall issue rules as are necessary concerning the use of | 5 | | devices, retention of recordings, and reports regarding their | 6 | | use.
Any recording or evidence obtained or derived in the | 7 | | course of an investigation of involuntary servitude, | 8 | | involuntary sexual servitude of a minor, trafficking in | 9 | | persons, child pornography, aggravated child pornography, | 10 | | indecent solicitation of a child, child abduction, luring of a | 11 | | minor, sexual exploitation of a child, predatory criminal | 12 | | sexual assault of a child, aggravated criminal sexual abuse in | 13 | | which the victim of the offense was at the time of the | 14 | | commission of the offense under 18 years of age, criminal | 15 | | sexual abuse by force or threat of force in which the victim of | 16 | | the offense was at the time of the commission of the offense | 17 | | under 18 years of age, or aggravated criminal sexual assault in | 18 | | which the victim of the offense was at the time of the | 19 | | commission of the offense under 18 years of age shall, upon | 20 | | motion of the State's Attorney or Attorney General prosecuting | 21 | | any case involving involuntary servitude, involuntary sexual | 22 | | servitude of a minor, trafficking in persons, child | 23 | | pornography, aggravated child pornography, indecent | 24 | | solicitation of a child, child abduction, luring of a minor, | 25 | | sexual exploitation of a child, predatory criminal sexual | 26 | | assault of a child, aggravated criminal sexual abuse in which |
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| 1 | | the victim of the offense was at the time of the commission of | 2 | | the offense under 18 years of age, criminal sexual abuse by | 3 | | force or threat of force in which the victim of the offense was | 4 | | at the time of the commission of the offense under 18 years of | 5 | | age, or aggravated criminal sexual assault in which the victim | 6 | | of the offense was at the time of the commission of the offense | 7 | | under 18 years of age, be reviewed in camera with notice to all | 8 | | parties present by the court presiding over the criminal case, | 9 | | and, if ruled by the court to be relevant and otherwise | 10 | | admissible, it shall be admissible at the trial of the criminal | 11 | | case. Absent such a ruling, any such recording or evidence | 12 | | shall not be admissible at the trial of the criminal case; | 13 | | (h) Recordings made simultaneously with the use of an | 14 | | in-car video camera recording of an oral
conversation between a | 15 | | uniformed peace officer, who has identified his or her office, | 16 | | and
a person in the presence of the peace officer whenever (i) | 17 | | an officer assigned a patrol vehicle is conducting an | 18 | | enforcement stop; or (ii) patrol vehicle emergency lights are | 19 | | activated or would otherwise be activated if not for the need | 20 | | to conceal the presence of law enforcement. | 21 | | For the purposes of this subsection (h), "enforcement stop" | 22 | | means an action by a law enforcement officer in relation to | 23 | | enforcement and investigation duties, including but not | 24 | | limited to, traffic stops, pedestrian stops, abandoned vehicle | 25 | | contacts, motorist assists, commercial motor vehicle stops, | 26 | | roadside safety checks, requests for identification, or |
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| 1 | | responses to requests for emergency assistance; | 2 | | (h-5) Recordings of utterances made by a person while in | 3 | | the presence of a uniformed peace officer and while an occupant | 4 | | of a police vehicle including, but not limited to, (i) | 5 | | recordings made simultaneously with the use of an in-car video | 6 | | camera and (ii) recordings made in the presence of the peace | 7 | | officer utilizing video or audio systems, or both, authorized | 8 | | by the law enforcement agency; | 9 | | (h-10) Recordings made simultaneously with a video camera | 10 | | recording during
the use of a taser or similar weapon or device | 11 | | by a peace officer if the weapon or device is equipped with | 12 | | such camera; | 13 | | (h-15) Recordings made under subsection (h), (h-5), or | 14 | | (h-10) shall be retained by the law enforcement agency that | 15 | | employs the peace officer who made the recordings for a storage | 16 | | period of 90 days, unless the recordings are made as a part of | 17 | | an arrest or the recordings are deemed evidence in any | 18 | | criminal, civil, or administrative proceeding and then the | 19 | | recordings must only be destroyed upon a final disposition and | 20 | | an order from the court. Under no circumstances shall any | 21 | | recording be altered or erased prior to the expiration of the | 22 | | designated storage period. Upon completion of the storage | 23 | | period, the recording medium may be erased and reissued for | 24 | | operational use; | 25 | | (i) Recording of a conversation made by or at the request | 26 | | of a person, not a
law enforcement officer or agent of a law |
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| 1 | | enforcement officer, who is a party
to the conversation, under | 2 | | reasonable suspicion that another party to the
conversation is | 3 | | committing, is about to commit, or has committed a criminal
| 4 | | offense against the person or a member of his or her immediate | 5 | | household, and
there is reason to believe that evidence of the | 6 | | criminal offense may be
obtained by the recording; | 7 | | (j) The use of a telephone monitoring device by either (1) | 8 | | a
corporation or other business entity engaged in marketing or | 9 | | opinion research
or (2) a corporation or other business entity | 10 | | engaged in telephone
solicitation, as
defined in this | 11 | | subsection, to record or listen to oral telephone solicitation
| 12 | | conversations or marketing or opinion research conversations | 13 | | by an employee of
the corporation or other business entity | 14 | | when: | 15 | | (i) the monitoring is used for the purpose of service | 16 | | quality control of
marketing or opinion research or | 17 | | telephone solicitation, the education or
training of | 18 | | employees or contractors
engaged in marketing or opinion | 19 | | research or telephone solicitation, or internal
research | 20 | | related to marketing or
opinion research or telephone
| 21 | | solicitation; and | 22 | | (ii) the monitoring is used with the consent of at | 23 | | least one person who
is an active party to the marketing or | 24 | | opinion research conversation or
telephone solicitation | 25 | | conversation being
monitored. | 26 | | No communication or conversation or any part, portion, or |
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| 1 | | aspect of the
communication or conversation made, acquired, or | 2 | | obtained, directly or
indirectly,
under this exemption (j), may | 3 | | be, directly or indirectly, furnished to any law
enforcement | 4 | | officer, agency, or official for any purpose or used in any | 5 | | inquiry
or investigation, or used, directly or indirectly, in | 6 | | any administrative,
judicial, or other proceeding, or divulged | 7 | | to any third party. | 8 | | When recording or listening authorized by this subsection | 9 | | (j) on telephone
lines used for marketing or opinion research | 10 | | or telephone solicitation purposes
results in recording or
| 11 | | listening to a conversation that does not relate to marketing | 12 | | or opinion
research or telephone solicitation; the
person | 13 | | recording or listening shall, immediately upon determining | 14 | | that the
conversation does not relate to marketing or opinion | 15 | | research or telephone
solicitation, terminate the recording
or | 16 | | listening and destroy any such recording as soon as is | 17 | | practicable. | 18 | | Business entities that use a telephone monitoring or | 19 | | telephone recording
system pursuant to this exemption (j) shall | 20 | | provide current and prospective
employees with notice that the | 21 | | monitoring or recordings may occur during the
course of their | 22 | | employment. The notice shall include prominent signage
| 23 | | notification within the workplace. | 24 | | Business entities that use a telephone monitoring or | 25 | | telephone recording
system pursuant to this exemption (j) shall | 26 | | provide their employees or agents
with access to personal-only |
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| 1 | | telephone lines which may be pay telephones, that
are not | 2 | | subject to telephone monitoring or telephone recording. | 3 | | For the purposes of this subsection (j), "telephone | 4 | | solicitation" means a
communication through the use of a | 5 | | telephone by live operators: | 6 | | (i) soliciting the sale of goods or services; | 7 | | (ii) receiving orders for the sale of goods or | 8 | | services; | 9 | | (iii) assisting in the use of goods or services; or | 10 | | (iv) engaging in the solicitation, administration, or | 11 | | collection of bank
or
retail credit accounts. | 12 | | For the purposes of this subsection (j), "marketing or | 13 | | opinion research"
means
a marketing or opinion research | 14 | | interview conducted by a live telephone
interviewer engaged by | 15 | | a corporation or other business entity whose principal
business | 16 | | is the design, conduct, and analysis of polls and surveys | 17 | | measuring
the
opinions, attitudes, and responses of | 18 | | respondents toward products and services,
or social or | 19 | | political issues, or both; | 20 | | (k) Electronic recordings, including but not limited to, a | 21 | | motion picture,
videotape, digital, or other visual or audio | 22 | | recording, made of a custodial
interrogation of an individual | 23 | | at a police station or other place of detention
by a law | 24 | | enforcement officer under Section 5-401.5 of the Juvenile Court | 25 | | Act of
1987 or Section 103-2.1 of the Code of Criminal | 26 | | Procedure of 1963; |
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| 1 | | (l) Recording the interview or statement of any person when | 2 | | the person
knows that the interview is being conducted by a law | 3 | | enforcement officer or
prosecutor and the interview takes place | 4 | | at a police station that is currently
participating in the | 5 | | Custodial Interview Pilot Program established under the
| 6 | | Illinois Criminal Justice Information Act; | 7 | | (m) An electronic recording, including but not limited to, | 8 | | a motion picture,
videotape, digital, or other visual or audio | 9 | | recording, made of the interior of a school bus while the | 10 | | school bus is being used in the transportation of students to | 11 | | and from school and school-sponsored activities, when the | 12 | | school board has adopted a policy authorizing such recording, | 13 | | notice of such recording policy is included in student | 14 | | handbooks and other documents including the policies of the | 15 | | school, notice of the policy regarding recording is provided to | 16 | | parents of students, and notice of such recording is clearly | 17 | | posted on the door of and inside the school bus.
| 18 | | Recordings made pursuant to this subsection (m) shall be | 19 | | confidential records and may only be used by school officials | 20 | | (or their designees) and law enforcement personnel for | 21 | | investigations, school disciplinary actions and hearings, | 22 | | proceedings under the Juvenile Court Act of 1987, and criminal | 23 | | prosecutions, related to incidents occurring in or around the | 24 | | school bus; | 25 | | (n)
Recording or listening to an audio transmission from a | 26 | | microphone placed by a person under the authority of a law |
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| 1 | | enforcement agency inside a bait car surveillance vehicle while | 2 | | simultaneously capturing a photographic or video image; | 3 | | (o) The use of an eavesdropping camera or audio device | 4 | | during an ongoing hostage or barricade situation by a law | 5 | | enforcement officer or individual acting on behalf of a law | 6 | | enforcement officer when the use of such device is necessary to | 7 | | protect the safety of the general public, hostages, or law | 8 | | enforcement officers or anyone acting on their behalf; | 9 | | (p) Recording or listening with the aid of any device to | 10 | | incoming telephone calls of phone lines publicly listed or | 11 | | advertised as the "CPS Violence Prevention Hotline", but only | 12 | | where the notice of recording is given at the beginning of each | 13 | | call as required by Section 34-21.8 of the School Code. The | 14 | | recordings may be retained only by the Chicago Police | 15 | | Department or other law enforcement authorities, and shall not | 16 | | be otherwise retained or disseminated; and | 17 | | (q)(1) With prior request to and verbal approval of the | 18 | | State's Attorney of the county in which the conversation is | 19 | | anticipated to occur, recording or listening with the aid of an | 20 | | eavesdropping device to a conversation in which a law | 21 | | enforcement officer, or any person acting at the direction of a | 22 | | law enforcement officer, is a party to the conversation and has | 23 | | consented to the conversation being intercepted or recorded in | 24 | | the course of an investigation of a drug offense. The State's | 25 | | Attorney may grant this verbal approval only after determining | 26 | | that reasonable cause exists to believe that a drug offense |
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| 1 | | will be committed by a specified individual or individuals | 2 | | within a designated period of time. | 3 | | (2) Request for approval. To invoke the exception contained | 4 | | in this subsection (q), a law enforcement officer shall make a | 5 | | written or verbal request for approval to the appropriate | 6 | | State's Attorney. This request for approval shall include | 7 | | whatever information is deemed necessary by the State's | 8 | | Attorney but shall include, at a minimum, the following | 9 | | information about each specified individual whom the law | 10 | | enforcement officer believes will commit a drug offense: | 11 | | (A) his or her full or partial name, nickname or alias; | 12 | | (B) a physical description; or | 13 | | (C) failing either (A) or (B) of this paragraph (2), | 14 | | any other supporting information known to the law | 15 | | enforcement officer at the time of the request that gives | 16 | | rise to reasonable cause to believe the individual will | 17 | | commit a drug offense. | 18 | | (3) Limitations on verbal approval. Each verbal approval by | 19 | | the State's Attorney under this subsection (q) shall be limited | 20 | | to: | 21 | | (A) a recording or interception conducted by a | 22 | | specified law enforcement officer or person acting at the | 23 | | direction of a law enforcement officer; | 24 | | (B) recording or intercepting conversations with the | 25 | | individuals specified in the request for approval, | 26 | | provided that the verbal approval shall be deemed to |
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| 1 | | include the recording or intercepting of conversations | 2 | | with other individuals, unknown to the law enforcement | 3 | | officer at the time of the request for approval, who are | 4 | | acting in conjunction with or as co-conspirators with the | 5 | | individuals specified in the request for approval in the | 6 | | commission of a drug offense; | 7 | | (C) a reasonable period of time but in no event longer | 8 | | than 24 consecutive hours. | 9 | | (4) Admissibility of evidence. No part of the contents of | 10 | | any wire, electronic, or oral communication that has been | 11 | | recorded or intercepted as a result of this exception may be | 12 | | received in evidence in any trial, hearing, or other proceeding | 13 | | in or before any court, grand jury, department, officer, | 14 | | agency, regulatory body, legislative committee, or other | 15 | | authority of this State, or a political subdivision of the | 16 | | State, other than in a prosecution of: | 17 | | (A) a drug offense; | 18 | | (B) a forcible felony committed directly in the course | 19 | | of the investigation of a drug offense for which verbal | 20 | | approval was given to record or intercept a conversation | 21 | | under this subsection (q); or | 22 | | (C) any other forcible felony committed while the | 23 | | recording or interception was approved in accordance with | 24 | | this Section (q), but for this specific category of | 25 | | prosecutions, only if the law enforcement officer or person | 26 | | acting at the direction of a law enforcement officer who |
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| 1 | | has consented to the conversation being intercepted or | 2 | | recorded suffers great bodily injury or is killed during | 3 | | the commission of the charged forcible felony. | 4 | | (5) Compliance with the provisions of this subsection is a | 5 | | prerequisite to the admissibility in evidence of any part of | 6 | | the contents of any wire, electronic or oral communication that | 7 | | has been intercepted as a result of this exception, but nothing | 8 | | in this subsection shall be deemed to prevent a court from | 9 | | otherwise excluding the evidence on any other ground, nor shall | 10 | | anything in this subsection be deemed to prevent a court from | 11 | | independently reviewing the admissibility of the evidence for | 12 | | compliance with the Fourth Amendment to the U.S. Constitution | 13 | | or with Article I, Section 6 of the Illinois Constitution. | 14 | | (6) Use of recordings or intercepts unrelated to drug | 15 | | offenses. Whenever any wire, electronic, or oral communication | 16 | | has been recorded or intercepted as a result of this exception | 17 | | that is not related to a drug offense or a forcible felony | 18 | | committed in the course of a drug offense, no part of the | 19 | | contents of the communication and evidence derived from the | 20 | | communication may be received in evidence in any trial, | 21 | | hearing, or other proceeding in or before any court, grand | 22 | | jury, department, officer, agency, regulatory body, | 23 | | legislative committee, or other authority of this State, or a | 24 | | political subdivision of the State, nor may it be publicly | 25 | | disclosed in any way. | 26 | | (7) Definitions. For the purposes of this subsection (q) |
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| 1 | | only: | 2 | | "Drug offense" includes and is limited to a felony | 3 | | violation of one of the following: (A) the Illinois | 4 | | Controlled Substances Act, (B) the Cannabis Control Act, | 5 | | and (C) the Methamphetamine Control and Community | 6 | | Protection Act. | 7 | | "Forcible felony" includes and is limited to those | 8 | | offenses contained in Section 2-8 of the Criminal Code of | 9 | | 1961 as of the effective date of this amendatory Act of the | 10 | | 97th General Assembly, and only as those offenses have been | 11 | | defined by law or judicial interpretation as of that date. | 12 | | "State's Attorney" includes and is limited to the | 13 | | State's Attorney or an assistant State's Attorney | 14 | | designated by the State's Attorney to provide verbal | 15 | | approval to record or intercept conversations under this | 16 | | subsection (q). | 17 | | (8) Sunset. This subsection (q) is inoperative on and after | 18 | | January 1, 2015. No conversations intercepted pursuant to this | 19 | | subsection (q), while operative, shall be inadmissible in a | 20 | | court of law by virtue of the inoperability of this subsection | 21 | | (q) on January 1, 2015 ; and . | 22 | | (r) Electronic recordings, including but not limited to, | 23 | | motion picture, videotape, digital, or other visual or audio | 24 | | recording, made of a lineup under Section 107A-2 of the Code of | 25 | | Criminal Procedure of 1963. | 26 | | (Source: P.A. 97-333, eff. 8-12-11; 97-846, eff. 1-1-13; |
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| 1 | | 97-897, eff. 1-1-13; 98-463, eff. 8-16-13.) | 2 | | Section 10. The Code of Criminal Procedure of 1963 is | 3 | | amended by adding Sections 107A-0.1 and 107A-2 as follows: | 4 | | (725 ILCS 5/107A-0.1 new) | 5 | | Sec. 107A-0.1. Definitions. | 6 | | For the purposes of this Article: | 7 | | "Eyewitness" means a person viewing the lineup whose | 8 | | identification by sight of another person may be relevant | 9 | | in a criminal proceeding. | 10 | | "Filler" means a person or a photograph of a person who | 11 | | is not suspected of an offense and is included in a lineup. | 12 | | "Independent administrator" means a lineup | 13 | | administrator who is not participating in the | 14 | | investigation of the criminal offense and is unaware of | 15 | | which person in the lineup is the suspected perpetrator. | 16 | | "Lineup" includes a photo lineup or live lineup. | 17 | | "Lineup administrator" means the person who conducts a | 18 | | lineup. | 19 | | "Live lineup" means a procedure in which a group of | 20 | | persons is displayed to an eyewitness for the purpose of | 21 | | determining if the eyewitness is able to identify the | 22 | | perpetrator of a crime, but does not include a showup. | 23 | | "Photo lineup" means a procedure in which photographs | 24 | | are displayed to an eyewitness for the purpose of |
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| 1 | | determining if the eyewitness is able to identify the | 2 | | perpetrator of a crime. | 3 | | "Sequential lineup" means a live or photo lineup in | 4 | | which each person or photograph is presented to an | 5 | | eyewitness separately, in a previously determined order, | 6 | | and removed from the eyewitness's view before the next | 7 | | person or photograph is presented, in order to determine if | 8 | | the eyewitness is able to identify the perpetrator of a | 9 | | crime. | 10 | | "Showup" means a procedure in which a suspected | 11 | | perpetrator is presented to the eyewitness at, or near, a | 12 | | crime scene for the purpose of obtaining an immediate | 13 | | identification. | 14 | | "Simultaneous lineup" means a live or photo lineup in | 15 | | which a group of persons or array of photographs is | 16 | | presented simultaneously to an eyewitness for the purpose | 17 | | of determining if the eyewitness is able to identify the | 18 | | perpetrator of a crime. | 19 | | (725 ILCS 5/107A-2 new) | 20 | | Sec. 107A-2. Lineup procedure. | 21 | | (a) All lineups shall be conducted using one of the | 22 | | following methods: | 23 | | (1) An independent administrator. | 24 | | (2) An automated computer program or other device that | 25 | | can automatically display a photo lineup to an eyewitness |
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| 1 | | in a manner that prevents the lineup administrator from | 2 | | seeing which photograph or photographs the eyewitness is | 3 | | viewing until after the lineup is completed. The automated | 4 | | computer program may present the photographs to the | 5 | | eyewitness simultaneously or sequentially, consistent with | 6 | | the law enforcement agency guidelines required under | 7 | | subsection (b) of this Section. | 8 | | (3) A procedure in which photographs are placed in | 9 | | folders, randomly numbered, and shuffled and then | 10 | | presented to an eyewitness such that the lineup | 11 | | administrator cannot see or know which photograph or | 12 | | photographs are being presented to the eyewitness until | 13 | | after the procedure is completed. The photographs may be | 14 | | presented to the eyewitness simultaneously or | 15 | | sequentially, consistent with the law enforcement agency | 16 | | guidelines required under subsection (b) of this Section. | 17 | | (4) Any other procedure that prevents the lineup | 18 | | administrator from knowing the identity of the suspected | 19 | | perpetrator or seeing or knowing the persons or photographs | 20 | | being presented to the eyewitness until after the procedure | 21 | | is completed. | 22 | | (b) Each law enforcement agency shall adopt written | 23 | | guidelines setting forth when, if at all, simultaneous lineups | 24 | | shall be conducted and when, if at all, sequential lineups | 25 | | shall be conducted. This subsection does not establish a | 26 | | preference for whether a law enforcement agency should conduct |
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| 1 | | simultaneous lineups or sequential lineups. Whether and when to | 2 | | conduct simultaneous lineups or sequential lineups is at the | 3 | | discretion of each law enforcement agency. If, after the | 4 | | effective date of this amendatory Act of the 98th General | 5 | | Assembly, a method of conducting a lineup different from a | 6 | | simultaneous or sequential lineup is determined by the Illinois | 7 | | Supreme Court to be sufficiently established to have gained | 8 | | general acceptance as a reliable method for eyewitness | 9 | | identifications and provides more accurate results than | 10 | | simultaneous or sequential lineups, a law enforcement agency | 11 | | may adopt written guidelines setting forth when, if at all, | 12 | | this different method of conducting lineups shall be used and, | 13 | | when feasible, the provisions of subsection (d) of this Section | 14 | | shall apply to the use of these methods. | 15 | | (c) On and after the effective date of this amendatory Act | 16 | | of the 98th General Assembly, there is no preference
as to | 17 | | whether a law enforcement agency conducts a live lineup or a | 18 | | photo lineup and to the extent that the common law directs | 19 | | otherwise, this direction is abrogated. | 20 | | (d) If a lineup administrator conducts a sequential lineup, | 21 | | the following shall apply: | 22 | | (1) Solely at the eyewitness's request, the lineup | 23 | | administrator may present a person or photograph to the | 24 | | eyewitness an additional time but only after the eyewitness | 25 | | has first viewed each person or photograph one time. | 26 | | (2) If the eyewitness identifies a person as a |
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| 1 | | perpetrator, the lineup administrator shall continue to | 2 | | sequentially present the remaining persons or photographs | 3 | | to the eyewitness until the eyewitness has viewed each | 4 | | person or photograph. | 5 | | (e) Before a lineup is conducted: | 6 | | (1) The eyewitness shall be instructed that: | 7 | | (A) if recording the lineup is practical, an audio | 8 | | and video recording of the lineup will be made for the | 9 | | purpose of accurately documenting all statements made | 10 | | by the eyewitness, unless the eyewitness refuses to the | 11 | | recording of the lineup, and that if a recording is | 12 | | made it will be of the persons in the lineup and the | 13 | | eyewitness; | 14 | | (B) the perpetrator may or may not be presented in | 15 | | the lineup; | 16 | | (C)
if an independent administrator is conducting | 17 | | the lineup, the independent administrator does not | 18 | | know the suspected perpetrator's identity or if the | 19 | | administrator conducting the lineup is not an | 20 | | independent administrator, the eyewitness should not | 21 | | assume that the lineup administrator knows which | 22 | | person in the lineup is the suspect; | 23 | | (D) the eyewitness should not feel compelled to | 24 | | make an identification; | 25 | | (E) it is as important to exclude innocent persons | 26 | | as it is to identify a perpetrator; and |
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| 1 | | (F) the investigation will continue whether or not | 2 | | an identification is made. | 3 | | (2)
The eyewitness shall acknowledge in writing the | 4 | | receipt of the instructions required under this subsection | 5 | | and, if applicable, the refusal to be recorded. If the | 6 | | eyewitness refuses to sign the acknowledgement, the lineup | 7 | | administrator shall note the refusal of the eyewitness to | 8 | | sign the acknowledgement and shall also sign the | 9 | | acknowledgement. | 10 | | (f) In conducting a lineup: | 11 | | (1) When practicable, the lineup administrator shall | 12 | | separate all eyewitnesses in order to prevent the | 13 | | eyewitnesses from conferring with one another before and | 14 | | during the lineup procedure. If separating the | 15 | | eyewitnesses is not practicable, the lineup administrator | 16 | | shall ensure that all eyewitnesses are monitored and that | 17 | | they do not confer with one another while waiting to view | 18 | | the lineup and during the lineup. | 19 | | (2) Each eyewitness shall perform the identification | 20 | | procedures without any other eyewitness present. Each | 21 | | eyewitness shall be given instructions regarding the | 22 | | identification procedures without other eyewitnesses | 23 | | present. | 24 | | (3) The lineup shall be composed to ensure that the | 25 | | suspected perpetrator does not unduly stand out from the | 26 | | fillers. In addition: |
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| 1 | | (A) Only one suspected perpetrator shall be | 2 | | included in a lineup. | 3 | | (B) The suspected perpetrator shall not be | 4 | | substantially different in appearance from the fillers | 5 | | based on the eyewitness's previous description of the | 6 | | perpetrator or based on other factors that would draw | 7 | | attention to the suspected perpetrator. | 8 | | (C) At least 5 fillers shall be included in a photo | 9 | | lineup, in addition to the suspected perpetrator. | 10 | | (D) When practicable, at least 5 fillers shall be | 11 | | included in a live lineup, in addition to the suspected | 12 | | perpetrator, but in no event shall there be less than 3 | 13 | | fillers in addition to the suspected perpetrator. | 14 | | (E) If the eyewitness has previously viewed a photo | 15 | | lineup or live lineup in connection with the | 16 | | identification of another person suspected of | 17 | | involvement in the offense, the fillers in the lineup | 18 | | in which the current suspected perpetrator | 19 | | participates shall be different from the fillers used | 20 | | in the prior lineups. | 21 | | (4) If there are multiple eyewitnesses, subject to the | 22 | | requirements in subsection (a) of this Section and to the | 23 | | extent possible, the suspected perpetrator shall be placed | 24 | | in a different position in the lineup or photo array for | 25 | | each eyewitness. | 26 | | (5) Nothing shall be communicated to the eyewitness |
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| 1 | | regarding the suspected perpetrator's position in the | 2 | | lineup or regarding anything that may influence the | 3 | | eyewitness's identification. | 4 | | (6) No writings or information concerning any previous | 5 | | arrest, indictment, or conviction of the suspected | 6 | | perpetrator shall be visible or made known to the | 7 | | eyewitness. | 8 | | (7) If a photo lineup, the photograph of the suspected | 9 | | perpetrator shall be contemporary in relation to the | 10 | | photographs of the fillers and, to the extent practicable, | 11 | | shall resemble the suspected perpetrator's appearance at | 12 | | the time of the offense. | 13 | | (8) If a live lineup, any identifying actions, such as | 14 | | speech, gestures, or other movements, shall be performed by | 15 | | all lineup participants. | 16 | | (9) If a live lineup, all lineup participants must be | 17 | | out of view of the eyewitness prior to the lineup. | 18 | | (10) The lineup administrator shall obtain and | 19 | | document any and all statements made by the eyewitness | 20 | | during the lineup as to the perpetrator's identity. When | 21 | | practicable, an audio or video recording of the statements | 22 | | shall be made. | 23 | | (11) If the eyewitness identifies a person as the | 24 | | perpetrator, the eyewitness shall not be provided any | 25 | | information concerning the person until after the lineup is | 26 | | completed. |
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| 1 | | (12) Unless otherwise allowed under subsection (a) of | 2 | | this Section, there shall not be anyone present during a | 3 | | lineup who knows the suspected perpetrator's identity, | 4 | | except the eyewitness and suspected perpetrator's counsel | 5 | | if required by law. | 6 | | (g) The lineup administrator shall make an official report | 7 | | of all lineups, which shall include all of the following | 8 | | information: | 9 | | (1) All identification and non-identification results | 10 | | obtained during the lineup, signed by the eyewitness, | 11 | | including any and all statements made by the eyewitness | 12 | | during the lineup as to the perpetrator's identity as | 13 | | required under paragraph (10) of subsection (f) of this | 14 | | Section. If the eyewitness refuses to sign, the lineup | 15 | | administrator shall note the refusal of the eyewitness to | 16 | | sign the results and shall also sign the notation. | 17 | | (2) The names of all persons who viewed the lineup. | 18 | | (3) The names of all law enforcement officers and | 19 | | counsel present during the lineup. | 20 | | (4) The date, time, and location of the lineup. | 21 | | (5) Whether it was a photo lineup or live lineup and | 22 | | how many persons or photographs were presented in the | 23 | | lineup. | 24 | | (6) The sources of all persons or photographs used as | 25 | | fillers in the lineup. | 26 | | (7) In a photo lineup, the actual photographs shown to |
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| 1 | | the eyewitness. | 2 | | (8) In a live lineup, a photograph or other visual | 3 | | recording of the lineup that includes all persons who | 4 | | participated in the lineup. | 5 | | (9) If applicable, the eyewitness's refusal to be | 6 | | recorded. | 7 | | (10) If applicable, the reason for any | 8 | | impracticability in strict compliance with this Section. | 9 | | (h) Unless it is not practical or the eyewitness refuses, a | 10 | | video record of all lineup procedures shall be made. | 11 | | (1) If a video record is not practical or the | 12 | | eyewitness refuses to allow a video record to be made: | 13 | | (A) the reasons or the refusal shall be documented | 14 | | in the official report required under subsection (g) of | 15 | | this Section; | 16 | | (B) an audio record shall be made, if practical; | 17 | | and | 18 | | (C) if a live lineup, the lineup shall be | 19 | | photographed. | 20 | | (2) If an audio record is not practical, the reasons | 21 | | shall be documented in the official report required under | 22 | | subsection (g) of this Section. | 23 | | (i) The
photographs, recordings, and the official report of | 24 | | the lineup required by this Section shall
be disclosed to | 25 | | counsel for the accused as provided by the Illinois Supreme | 26 | | Court Rules regarding discovery. All photographs
of suspected |
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| 1 | | perpetrators shown to an eyewitness during a lineup shall be
| 2 | | disclosed to counsel for the accused as provided by the | 3 | | Illinois Supreme Court Rules regarding discovery. To protect | 4 | | the identity of the eyewitness and the identities of law | 5 | | enforcement officers used as fillers in the lineup from being | 6 | | disclosed to third parties, the State's Attorney shall petition | 7 | | the court for a protective order under Supreme Court Rule 415 | 8 | | upon disclosure of the photographs or recordings to the counsel | 9 | | of the accused. | 10 | | (j) All of the following shall be available as consequences | 11 | | of compliance or noncompliance with the requirements of this | 12 | | Section: | 13 | | (1) Failure to comply with any of the requirements of | 14 | | this Section shall be a factor to be considered by the | 15 | | court in adjudicating a motion to suppress an eyewitness | 16 | | identification or any other motion to bar an eyewitness | 17 | | identification. These motions shall be in writing and state | 18 | | facts showing how the identification procedure was | 19 | | improper. This paragraph (1) makes no change to existing | 20 | | applicable common law or statutory standards or burdens of | 21 | | proof. | 22 | | (2) When warranted by the evidence presented at trial, | 23 | | the jury shall be instructed that it may consider all the | 24 | | facts and circumstances including compliance or | 25 | | noncompliance with this Section to assist in its weighing | 26 | | of the identification testimony of an eyewitness. |
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| 1 | | (k) Any electronic recording made during a lineup that is | 2 | | compiled by any law enforcement agency as required by this | 3 | | Section for the purposes of fulfilling the requirements of this | 4 | | Section shall be confidential and exempt from public inspection | 5 | | and copying, as provided under Section 7 of the Freedom of | 6 | | Information Act, and the recording shall not be transmitted to | 7 | | any person except as necessary to comply with this Section. | 8 | | (725 ILCS 5/107A-5 rep.)
| 9 | | (725 ILCS 5/107A-10 rep.)
| 10 | | Section 15. The Code of Criminal Procedure of 1963 is | 11 | | amended by repealing Sections 107A-5 and 107A-10.".
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