Full Text of HB2945 98th General Assembly
HB2945ham001 98TH GENERAL ASSEMBLY | Rep. Scott Drury Filed: 4/12/2013
| | 09800HB2945ham001 | | LRB098 09205 MRW 44452 a |
|
| 1 | | AMENDMENT TO HOUSE BILL 2945
| 2 | | AMENDMENT NO. ______. Amend House Bill 2945 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Juvenile Court Act of 1987 is amended by | 5 | | changing Section 5-401.5 as follows:
| 6 | | (705 ILCS 405/5-401.5)
| 7 | | Sec. 5-401.5. When statements by minor may be used.
| 8 | | (a) In this Section, "custodial interrogation" means any | 9 | | interrogation
(i) during which a reasonable person in the | 10 | | subject's position
would consider himself or herself to be in | 11 | | custody and (ii) during which
a
question is asked that is | 12 | | reasonably likely to elicit an incriminating
response.
| 13 | | In this Section, "electronic recording" includes motion | 14 | | picture,
audiotape, videotape, or digital recording.
| 15 | | In this Section, "minor" means an individual who at the | 16 | | time of the commission of the offense was under the age of 18 |
| | | 09800HB2945ham001 | - 2 - | LRB098 09205 MRW 44452 a |
|
| 1 | | years. | 2 | | In this Section, "place of detention" means a building
or a | 3 | | police station that is a place of operation for a municipal | 4 | | police
department or county sheriff department or other law | 5 | | enforcement agency
at which persons are or may be held in | 6 | | detention in
connection with criminal charges against those | 7 | | persons or allegations that
those
persons are delinquent | 8 | | minors.
| 9 | | (a-5) On or after the effective date of this amendatory Act | 10 | | of the 98th General Assembly, an electronic recording of a | 11 | | minor shall be made of all custodial interrogations conducted | 12 | | at a police station or other place of detention, where the | 13 | | offense if committed by an adult: | 14 | | (1) could be charged under Section 9-1, 9-1.2, 9-2, | 15 | | 9-2.1, 9-3, 9-3.2, or 9-3.3 of the Criminal Code of 1961 or | 16 | | the Criminal Code of 2012, or under clause (d)(1)(F) of | 17 | | Section 11-501 of the Illinois Vehicle Code; or | 18 | | (2) could be charged as a Class 1 or Class X felony. | 19 | | (b) For an act that if committed by an adult would be | 20 | | brought under Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, or | 21 | | 9-3.3 of the Criminal Code of 1961 or the Criminal Code of | 22 | | 2012, or under clause (d)(1)(F) of Section 11-501 of the | 23 | | Illinois Vehicle Code, an An oral, written, or sign language | 24 | | statement of a minor who, at the time
of the
commission of the | 25 | | offense was under the age of 17
years, made as a
result of a | 26 | | custodial interrogation conducted at a police station or other
|
| | | 09800HB2945ham001 | - 3 - | LRB098 09205 MRW 44452 a |
|
| 1 | | place of detention on or after
July 18, 2005 the effective date | 2 | | of
this amendatory Act of the 93rd General Assembly shall be | 3 | | presumed to be
inadmissible as evidence against the
minor in
| 4 | | any criminal proceeding or juvenile court proceeding ,
for an | 5 | | act that if committed by an adult would be
brought under | 6 | | Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, or 9-3.3,
of the | 7 | | Criminal Code of 1961 or the Criminal Code of 2012,
or under | 8 | | clause (d)(1)(F) of Section 11-501 of the Illinois Vehicle Code
| 9 | | unless:
| 10 | | (1) an electronic recording
is made of the custodial | 11 | | interrogation; and
| 12 | | (2) the electronic recording is substantially accurate | 13 | | and not intentionally altered.
| 14 | | (c) (Blank). Every electronic recording required under | 15 | | this Section
must be preserved
until such time as the
minor's | 16 | | adjudication
for any
offense relating to the statement is final | 17 | | and all direct and habeas corpus
appeals are
exhausted,
or the | 18 | | prosecution of such offenses is barred by law.
| 19 | | (d) If the court finds, by a preponderance of the evidence, | 20 | | that the
minor
was
subjected to a custodial interrogation in | 21 | | violation of subsection (b) this Section ,
then any statements | 22 | | made
by the
minor during or following that non-recorded | 23 | | custodial interrogation, even
if
otherwise in compliance with | 24 | | subsection (b) this Section , are presumed to be inadmissible in
| 25 | | any criminal
proceeding or juvenile court proceeding against | 26 | | the minor except for the
purposes of impeachment. |
| | | 09800HB2945ham001 | - 4 - | LRB098 09205 MRW 44452 a |
|
| 1 | | (d-1) The presumption of inadmissibility set forth in | 2 | | subsections (b) and (d) may be overcome by a preponderance of | 3 | | the evidence that the statement was voluntarily given and is | 4 | | reliable, based on the totality of the circumstances.
| 5 | | (d-2) A court shall consider compliance or noncompliance | 6 | | with the requirements of this Section in adjudicating a motion | 7 | | to suppress or any other motion to bar any statement for which | 8 | | an electronic recording was required to have been made under | 9 | | this Section. | 10 | | (e) Nothing in this Section precludes the admission (i) of | 11 | | a statement made
by the
minor in open court in any criminal | 12 | | proceeding or juvenile court proceeding,
before a grand jury, | 13 | | or
at a
preliminary hearing,
(ii) of a
statement made during a
| 14 | | custodial interrogation that was not recorded as required by
| 15 | | this
Section because electronic recording was not feasible, | 16 | | (iii) of a
voluntary
statement,
whether or not the result of a | 17 | | custodial interrogation, that has a bearing on
the
credibility | 18 | | of the accused as a witness, (iv)
of a spontaneous statement
| 19 | | that is not made in response to a question,
(v) of a statement | 20 | | made after questioning that is routinely
asked during the | 21 | | processing of the arrest of the suspect, (vi) of a statement
| 22 | | made during a custodial interrogation by a suspect who | 23 | | requests, prior to
making
the statement, to respond to the
| 24 | | interrogator's questions only if
an electronic recording is not | 25 | | made of the statement, provided that an
electronic
recording is | 26 | | made of the statement of agreeing to respond to
the |
| | | 09800HB2945ham001 | - 5 - | LRB098 09205 MRW 44452 a |
|
| 1 | | interrogator's question, only if a recording is not made of the | 2 | | statement,
(vii)
of a statement made
during a custodial
| 3 | | interrogation that is conducted out-of-state,
(viii)
of a
| 4 | | statement given at a time when the interrogators are unaware | 5 | | that a death
has in fact occurred , or the offense if committed | 6 | | by an adult could be charged as a Class 1 or Class X felony , or | 7 | | (ix) of any
other statement that may be admissible under law. | 8 | | The State shall bear the
burden of proving, by a preponderance | 9 | | of the evidence, that one of the
exceptions described in this | 10 | | subsection (e) is applicable. Nothing in this
Section precludes | 11 | | the admission of a statement, otherwise inadmissible under
this | 12 | | Section, that is used only for impeachment and not as | 13 | | substantive
evidence.
| 14 | | (f) (Blank). The presumption of inadmissibility of a | 15 | | statement made by a suspect at
a custodial interrogation at a | 16 | | police station or other place of detention may
be overcome by a | 17 | | preponderance of the evidence
that
the statement was | 18 | | voluntarily given and is reliable, based on the totality of
the
| 19 | | circumstances.
| 20 | | (f-1) Unless it has been established by a preponderance of | 21 | | the evidence that an exception listed in subsection (e) is | 22 | | applicable, if an unrecorded statement or an electronically | 23 | | recorded custodial interrogation that is not substantially | 24 | | accurate or has been intentionally altered is introduced into | 25 | | evidence where the statement was required to be electronically | 26 | | recorded under subsection (a-5), the court shall, upon the |
| | | 09800HB2945ham001 | - 6 - | LRB098 09205 MRW 44452 a |
|
| 1 | | request of the defendant, provide the jury with cautionary | 2 | | instructions, which at a minimum shall include the following, | 3 | | with changes that are necessary for consistency with the | 4 | | evidence: | 5 | | "The interview of the defendant by law enforcement | 6 | | officials which took place on (insert date) at (insert | 7 | | location) was not electronically recorded as required by | 8 | | our law. Because the interview was not electronically | 9 | | recorded, you have not been provided the most reliable | 10 | | evidence as to what was said and done by the participants. | 11 | | You were not able to hear the exact words used by the | 12 | | participants or the tone or inflection of their voices (nor | 13 | | were you able to see the actual interactions between the | 14 | | defendant and law enforcement officials). | 15 | | Accordingly, as you go about determining what occurred | 16 | | during the interview, you should give special attention to | 17 | | whether you are satisfied that what was said and done has | 18 | | been accurately reported by the participants, including | 19 | | testimony as to statements attributed by law enforcement | 20 | | witnesses to the defendant." | 21 | | (g) Every electronic recording required under this Section
| 22 | | must be preserved
until such time as the
minor's adjudication
| 23 | | for any
offense relating to the statement is final and all | 24 | | direct and habeas corpus
appeals are
exhausted,
or the | 25 | | prosecution of such offenses is barred by law. | 26 | | (g-1) Any electronic recording of any statement made by a |
| | | 09800HB2945ham001 | - 7 - | LRB098 09205 MRW 44452 a |
|
| 1 | | minor during a
custodial interrogation that is compiled by any | 2 | | law enforcement agency as
required by this Section for the | 3 | | purposes of fulfilling the requirements of
this
Section shall | 4 | | be confidential and exempt from public inspection and copying, | 5 | | as
provided under Section 7 of the Freedom of Information Act, | 6 | | and the information
shall not be transmitted to anyone except | 7 | | as needed to comply with this
Section.
| 8 | | (h) A statement, admission, confession, or incriminating | 9 | | information made by or obtained from a minor related to the | 10 | | instant offense, as part of any behavioral health screening, | 11 | | assessment, evaluation, or treatment, whether or not | 12 | | court-ordered, shall not be admissible as evidence against the | 13 | | minor on the issue of guilt only in the instant juvenile court | 14 | | proceeding. The provisions of this subsection (h) are in | 15 | | addition to and do not override any existing statutory and | 16 | | constitutional prohibition on the admission into evidence in | 17 | | delinquency proceedings of information obtained during | 18 | | screening, assessment, or treatment. | 19 | | (Source: P.A. 96-1251, eff. 1-1-11; 97-1150, eff. 1-25-13.)
| 20 | | Section 10. The Code of Criminal Procedure of 1963 is | 21 | | amended by changing Section 103-2.1 as follows:
| 22 | | (725 ILCS 5/103-2.1)
| 23 | | Sec. 103-2.1. When statements by accused may be used.
| 24 | | (a) In this Section, "custodial interrogation" means any |
| | | 09800HB2945ham001 | - 8 - | LRB098 09205 MRW 44452 a |
|
| 1 | | interrogation
during which (i) a reasonable person in the | 2 | | subject's position would consider
himself or herself to be in | 3 | | custody and (ii) during which
a question is asked that is | 4 | | reasonably likely to elicit an incriminating
response.
| 5 | | In this Section, "place of detention" means a building or a | 6 | | police station
that is a place of operation for a municipal | 7 | | police department or county
sheriff department or other law | 8 | | enforcement agency, not a courthouse, that
is owned or operated | 9 | | by a
law enforcement agency at which persons are or may be held | 10 | | in detention in
connection with criminal charges against those | 11 | | persons.
| 12 | | In this Section, "electronic recording" includes motion | 13 | | picture,
audiotape, or videotape, or digital recording.
| 14 | | (a-5) On or after the effective date of this amendatory Act | 15 | | of the 98th General Assembly, an electronic recording shall be | 16 | | made of all custodial interrogations conducted at a police | 17 | | station or other place of detention, where the offense: | 18 | | (1) could be charged under Section 9-1, 9-1.2, 9-2, | 19 | | 9-2.1, 9-3, 9-3.2, or 9-3.3 of the Criminal Code of 1961 or | 20 | | the Criminal Code of 2012, or under clause (d)(1)(F) of | 21 | | Section 11-501 of the Illinois Vehicle Code; or | 22 | | (2) could be charged as a Class 1 or Class X felony. | 23 | | (b) In any criminal proceeding 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 of | 25 | | 1961 or the Criminal Code of 2012, or under clause (d)(1)(F) of | 26 | | Section 11-501 of the Illinois Vehicle Code, an An oral, |
| | | 09800HB2945ham001 | - 9 - | LRB098 09205 MRW 44452 a |
|
| 1 | | written, or sign language statement of an accused made as a
| 2 | | result of a
custodial
interrogation at a police station or | 3 | | other place of detention on or after July 18, 2005 shall be | 4 | | presumed
to be inadmissible as
evidence against the
accused in | 5 | | any
criminal
proceeding brought under Section 9-1, 9-1.2, 9-2, | 6 | | 9-2.1, 9-3, 9-3.2, or 9-3.3
of the Criminal Code of 1961 or the | 7 | | Criminal Code of 2012 or under clause (d)(1)(F) of Section | 8 | | 11-501 of the Illinois Vehicle Code unless:
| 9 | | (1) an electronic recording
is made of the custodial | 10 | | interrogation; and
| 11 | | (2) the electronic recording is substantially accurate | 12 | | and not intentionally altered.
| 13 | | (c) (Blank). Every electronic recording required under | 14 | | this Section
must be preserved
until such time as the
| 15 | | defendant's conviction
for any
offense relating to the | 16 | | statement is final and all direct and habeas corpus
appeals are
| 17 | | exhausted,
or the prosecution of such offenses is barred by | 18 | | law.
| 19 | | (d) If the court finds, by a preponderance of the evidence, | 20 | | that the
defendant
was
subjected to a custodial interrogation | 21 | | in violation of subsection (b) this Section , then any
| 22 | | statements made
by the
defendant during or following that | 23 | | non-recorded custodial interrogation, even
if
otherwise in | 24 | | compliance with subsection (b) this Section , are presumed to be | 25 | | inadmissible in
any criminal
proceeding against the defendant | 26 | | except for the purposes of impeachment. |
| | | 09800HB2945ham001 | - 10 - | LRB098 09205 MRW 44452 a |
|
| 1 | | (d-1) The presumption of inadmissibility set forth in | 2 | | subsection (b) or (d) may be overcome by a preponderance of the | 3 | | evidence that the statement was voluntarily given and is | 4 | | reliable, based on the totality of the circumstances. | 5 | | (d-2) A court shall consider compliance or noncompliance | 6 | | with the requirements of this Section in adjudicating a motion | 7 | | to suppress or any other motion to bar any statement for which | 8 | | an electronic recording was required to have been made under | 9 | | this Section.
| 10 | | (e) Nothing in this Section precludes the admission (i) of | 11 | | a statement made
by the
accused in open court at his or her | 12 | | trial, before a grand jury, or at
a preliminary hearing, (ii)
| 13 | | of a
statement made during a
custodial interrogation that was | 14 | | not recorded as required by
this
Section, because electronic | 15 | | recording was not feasible, (iii) of a
voluntary
statement,
| 16 | | whether or not the result of a custodial interrogation, that | 17 | | has a bearing on
the
credibility of the accused as a witness,
| 18 | | (iv) of a spontaneous statement that is
not made in response to | 19 | | a 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, provided | 25 | | that an
electronic
recording is made of the statement of | 26 | | agreeing to respond to
the interrogator's question, only if a |
| | | 09800HB2945ham001 | - 11 - | LRB098 09205 MRW 44452 a |
|
| 1 | | recording is not made of the statement,
(vii) of a
statement | 2 | | made
during a custodial
interrogation that is conducted | 3 | | out-of-state, (viii)
of a statement
given at a time when the | 4 | | interrogators are unaware that a death has in fact
occurred , or | 5 | | the offense could be charged as a Class 1 or Class X felony , or | 6 | | (ix) of any other
statement that may be
admissible under law. | 7 | | The State shall bear the burden of proving, by a
preponderance | 8 | | of the evidence, that one of the exceptions described in this
| 9 | | subsection (e) is
applicable.
Nothing in
this Section precludes | 10 | | the admission of a statement, otherwise inadmissible
under
this | 11 | | Section, that is used only for impeachment and not as | 12 | | substantive
evidence.
| 13 | | (f) (Blank). The presumption of inadmissibility of a | 14 | | statement made by a suspect at
a custodial interrogation at a | 15 | | police station or other place of detention may
be overcome by a | 16 | | preponderance of the evidence
that
the statement was | 17 | | voluntarily given and is reliable, based on the totality of
the
| 18 | | circumstances.
| 19 | | (f-1) Unless it has been established by a preponderance of | 20 | | the evidence that an exception listed in subsection (e) is | 21 | | applicable, if an unrecorded statement or electronically | 22 | | recorded custodial interrogation that is not substantially | 23 | | accurate or has been intentionally altered is introduced into | 24 | | evidence where the statement was required to be electronically | 25 | | recorded under subsection (a-5), the court shall, upon the | 26 | | request of the defendant, provide the jury with cautionary |
| | | 09800HB2945ham001 | - 12 - | LRB098 09205 MRW 44452 a |
|
| 1 | | instructions, which at a minimum shall include the following, | 2 | | with changes that are necessary for consistency with the | 3 | | evidence: | 4 | | "The interview of the defendant by law enforcement | 5 | | officials which took place on (insert date) at (insert | 6 | | location) was not electronically recorded as required by | 7 | | our law. Because the interview was not electronically | 8 | | recorded, you have not been provided the most reliable | 9 | | evidence as to what was said and done by the participants. | 10 | | You were not able to hear the exact words used by the | 11 | | participants or the tone or inflection of their voices (nor | 12 | | were you able to see the actual interactions between the | 13 | | defendant and law enforcement officials). | 14 | | Accordingly, as you go about determining what occurred | 15 | | during the interview, you should give special attention to | 16 | | whether you are satisfied that what was said and done has | 17 | | been accurately reported by the participants, including | 18 | | testimony as to statements attributed by law enforcement | 19 | | witnesses to the defendant." | 20 | | (g) Every electronic recording required under this Section
| 21 | | must be preserved
until such time as the
defendant's conviction
| 22 | | for any
offense relating to the statement is final and all | 23 | | direct and habeas corpus
appeals are
exhausted,
or the | 24 | | prosecution of such offenses is barred by law. | 25 | | (h) Any electronic recording of any statement made by an | 26 | | accused during a
custodial interrogation that is compiled by |
| | | 09800HB2945ham001 | - 13 - | LRB098 09205 MRW 44452 a |
|
| 1 | | any law enforcement agency as
required by this Section for the | 2 | | purposes of fulfilling the requirements of
this
Section shall | 3 | | be confidential and exempt from public inspection and copying, | 4 | | as
provided under Section 7 of the Freedom of Information Act, | 5 | | and the information
shall not be transmitted to anyone except | 6 | | as needed to comply with this
Section.
| 7 | | (Source: P.A. 97-1150, eff. 1-25-13.)".
|
|