Full Text of SB2370 99th General Assembly
SB2370sam001 99TH GENERAL ASSEMBLY | Sen. Patricia Van Pelt Filed: 3/31/2016
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| 1 | | AMENDMENT TO SENATE BILL 2370
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 2370 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 1. The Counties Code is amended by changing | 5 | | Section 3-4006 as follows:
| 6 | | (55 ILCS 5/3-4006) (from Ch. 34, par. 3-4006)
| 7 | | Sec. 3-4006. Duties of public defender. The Public | 8 | | Defender, as
directed by the court, shall act as attorney, | 9 | | without fee, before any court
within any county for all persons | 10 | | who are held in custody or who are
charged with the commission | 11 | | of any criminal offense, and who the court
finds are unable to | 12 | | employ counsel.
| 13 | | The Public Defender shall be the attorney, without fee, | 14 | | when so appointed
by the court under Section 1-20 of the | 15 | | Juvenile Court Act or Section 1-5 of
the Juvenile Court Act of | 16 | | 1987 or by any court under Section 5(b) of the
Parental Notice |
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| 1 | | of Abortion Act of 1983 for any party who the court finds
is | 2 | | financially unable to employ counsel.
| 3 | | In a homicide case involving a minor who was at least 13 | 4 | | years of age but not older than 18 years of age at the time of | 5 | | commission of the offense, that occurs in a county with a | 6 | | full-time public defender office, a public defender, without | 7 | | fee or appointment, may represent and have access to a minor | 8 | | during a custodial interrogation. In a homicide case involving | 9 | | a minor who was at least 13 years of age but not older than 18 | 10 | | years of age at the time of commission of the offense, that | 11 | | occurs in a county that does not have a full-time public | 12 | | defender, the law enforcement agency conducting the custodial | 13 | | interrogation shall ensure that the minor is able to consult | 14 | | with an attorney who is under contract with the county to | 15 | | provide public defender services. Representation by the public | 16 | | defender shall terminate at the first court appearance if the | 17 | | court determines that the minor is not indigent. | 18 | | Every court shall, with the consent of the defendant and | 19 | | where the court
finds that the rights of the defendant would be | 20 | | prejudiced by the
appointment of the public defender, appoint | 21 | | counsel other than the public
defender, except as otherwise | 22 | | provided in Section 113-3 of the
"Code of Criminal Procedure of | 23 | | 1963". That counsel shall be compensated
as is provided by law. | 24 | | He shall also, in the case of the conviction of
any such | 25 | | person, prosecute any proceeding in review which in his
| 26 | | judgment the interests of justice require.
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| 1 | | (Source: P.A. 86-962.)
| 2 | | Section 5. The Juvenile Court Act of 1987 is amended by | 3 | | changing Sections 5-170 and 5-401.5 as follows:
| 4 | | (705 ILCS 405/5-170)
| 5 | | Sec. 5-170. Representation by counsel.
| 6 | | (a) In a proceeding
under this Article, a minor who was | 7 | | under 13 years of age at the time of the
commission of an act | 8 | | that if committed by an adult would be a violation of
Section | 9 | | 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, 9-3.3, 11-1.20, 11-1.30, | 10 | | 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 12-14.1,
12-15, or | 11 | | 12-16 of the Criminal Code of 1961 or the Criminal Code of 2012 | 12 | | must be represented by counsel throughout
during the entire | 13 | | custodial interrogation of the minor. | 14 | | (a-5) In a proceeding under this Article, a minor who was | 15 | | at least 13 years of age but not older than 18 years of age at | 16 | | the time of the commission of an act that if committed by an | 17 | | adult would be a violation of Section 9-1, 9-1.2, 9-2, 9-2.1, | 18 | | 9-3, 9-3.2, or 9-3.3 of the Criminal Code of 2012 must be | 19 | | represented by counsel throughout the entire custodial | 20 | | interrogation of the minor. | 21 | | (b) In a judicial proceeding
under this Article, a minor | 22 | | may not waive the right to the assistance of counsel in his or | 23 | | her defense.
| 24 | | (Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
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| 1 | | (705 ILCS 405/5-401.5)
| 2 | | Sec. 5-401.5. When statements by minor may be used.
| 3 | | (a) In this Section, "custodial interrogation" means any | 4 | | interrogation
(i) during which a reasonable person in the | 5 | | subject's position
would consider himself or herself to be in | 6 | | custody and (ii) during which
a
question is asked that is | 7 | | reasonably likely to elicit an incriminating
response.
| 8 | | In this Section, "electronic recording" includes motion | 9 | | picture,
audiotape, videotape, or digital recording.
| 10 | | In this Section, "place of detention" means a building
or a | 11 | | police station that is a place of operation for a municipal | 12 | | police
department or county sheriff department or other law | 13 | | enforcement agency
at which persons are or may be held in | 14 | | detention in
connection with criminal charges against those | 15 | | persons or allegations that
those
persons are delinquent | 16 | | minors.
| 17 | | (b) An oral, written, or sign language statement of a minor | 18 | | who, at the time
of the
commission of the offense was under the | 19 | | age of 18
years, made as a
result of a custodial interrogation | 20 | | conducted at a police station or other
place of detention on or | 21 | | after
the effective date of
this amendatory Act of the 93rd | 22 | | General Assembly shall be presumed to be
inadmissible as | 23 | | evidence against the
minor in
any criminal proceeding or | 24 | | juvenile court proceeding,
for an act that if committed by an | 25 | | adult would be
brought under Section 9-1, 9-1.2, 9-2, 9-2.1, |
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| 1 | | 9-3, 9-3.2, or 9-3.3,
of the Criminal Code of 1961 or the | 2 | | Criminal Code of 2012,
or under clause (d)(1)(F) of Section | 3 | | 11-501 of the Illinois Vehicle Code
unless:
| 4 | | (1) an electronic recording
is made of the custodial | 5 | | interrogation; and
| 6 | | (2) the recording is substantially accurate and not | 7 | | intentionally altered.
| 8 | | (b-5) Under the following circumstances, an oral, written, | 9 | | or sign language statement of a minor who, at the time
of the
| 10 | | commission of the offense was under the age of 17
years, made | 11 | | as a result of a custodial interrogation conducted at a police | 12 | | station or other place of detention shall be presumed to be | 13 | | inadmissible as evidence against the minor, unless an | 14 | | electronic recording is made of the custodial interrogation and | 15 | | the recording is substantially accurate and not intentionally | 16 | | altered: | 17 | | (1) in any criminal proceeding or juvenile court | 18 | | proceeding, for an act that if committed by an adult would | 19 | | be brought under Section 11-1.40 or 20-1.1 of the Criminal | 20 | | Code of 1961 or the Criminal Code of 2012, if the custodial | 21 | | interrogation was conducted on or after June 1, 2014; | 22 | | (2) in any criminal proceeding or juvenile court | 23 | | proceeding, for an act that if committed by an adult would | 24 | | be brought under Section 10-2, 18-4, or 19-6 of the | 25 | | Criminal Code of 1961 or the Criminal Code of 2012, if the | 26 | | custodial interrogation was conducted on or after June 1, |
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| 1 | | 2015; and | 2 | | (3) in any criminal proceeding or juvenile court | 3 | | proceeding, for an act that if committed by an adult would | 4 | | be brought under Section 11-1.30 or 18-2 or subsection (e) | 5 | | of Section 12-3.05 of the Criminal Code of 1961 or the | 6 | | Criminal Code of 2012, if the custodial interrogation was | 7 | | conducted on or after June 1, 2016. | 8 | | (b-10) If, during the course of an electronically recorded | 9 | | custodial interrogation conducted under this Section of a minor | 10 | | who, at the time
of the
commission of the offense was under the | 11 | | age of 17
years, the minor makes a statement that creates a | 12 | | reasonable suspicion to believe the minor has committed an act | 13 | | that if committed by an adult would be an offense other than an | 14 | | offense required to be recorded under subsection (b) or (b-5), | 15 | | the interrogators may, without the minor's consent, continue to | 16 | | record the interrogation as it relates to the other offense | 17 | | notwithstanding any provision of law to the contrary. Any oral, | 18 | | written, or sign language statement of a minor made as a result | 19 | | of an interrogation under this subsection shall be presumed to | 20 | | be inadmissible as evidence against the minor in any criminal | 21 | | proceeding or juvenile court proceeding, unless the recording | 22 | | is substantially accurate and not intentionally altered. | 23 | | (c) Every electronic recording made under this Section
must | 24 | | be preserved
until such time as the
minor's adjudication
for | 25 | | any
offense relating to the statement is final and all direct | 26 | | and habeas corpus
appeals are
exhausted,
or the prosecution of |
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| 1 | | such offenses is barred by law.
| 2 | | (d) If the court finds, by a preponderance of the evidence, | 3 | | that the
minor
was
subjected to a custodial interrogation in | 4 | | violation of this Section,
then any statements made
by the
| 5 | | minor during or following that non-recorded custodial | 6 | | interrogation, even
if
otherwise in compliance with this | 7 | | Section, are presumed to be inadmissible in
any criminal
| 8 | | proceeding or juvenile court proceeding against the minor | 9 | | except for the
purposes of impeachment.
| 10 | | (d-5) An oral, written, or sign language statement of a | 11 | | minor made without counsel present throughout the entire | 12 | | custodial interrogation of the minor in violation of | 13 | | subsections (a) or (a-5) of Section 5-170 of this Act shall be | 14 | | inadmissible as evidence against the minor in any juvenile | 15 | | court proceeding or criminal proceeding. | 16 | | (e) Nothing in this Section precludes the admission (i) of | 17 | | a statement made
by the
minor in open court in any criminal | 18 | | proceeding or juvenile court proceeding,
before a grand jury, | 19 | | or
at a
preliminary hearing,
(ii) of a
statement made during a
| 20 | | custodial interrogation that was not recorded as required by
| 21 | | this
Section because electronic recording was not feasible, | 22 | | (iii) of a
voluntary
statement,
whether or not the result of a | 23 | | custodial interrogation, that has a bearing on
the
credibility | 24 | | of the accused as a witness, (iv)
of a spontaneous statement
| 25 | | that is not made in response to a question,
(v) of a statement | 26 | | made after questioning that is routinely
asked during the |
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| 1 | | processing of the arrest of the suspect, (vi) of a statement
| 2 | | made during a custodial interrogation by a suspect who | 3 | | requests, prior to
making
the statement, to respond to the
| 4 | | interrogator's questions only if
an electronic recording is not | 5 | | made of the statement, provided that an
electronic
recording is | 6 | | made of the statement of agreeing to respond to
the | 7 | | interrogator's question, only if a recording is not made of the | 8 | | statement,
(vii)
of a statement made
during a custodial
| 9 | | interrogation that is conducted out-of-state,
(viii)
of a
| 10 | | statement given in violation of subsection (b) at a time when | 11 | | the interrogators are unaware that a death
has in fact | 12 | | occurred, (ix) of a statement given in violation of subsection | 13 | | (b-5) at a time when the interrogators are unaware of facts and | 14 | | circumstances that would create probable cause to believe that | 15 | | the minor committed an act that if committed by an adult would | 16 | | be an offense required to be recorded under subsection (b-5), | 17 | | or (x) of any
other statement that may be admissible under law. | 18 | | The State shall bear the
burden of proving, by a preponderance | 19 | | of the evidence, that one of the
exceptions described in this | 20 | | subsection (e) is applicable. Nothing in this
Section precludes | 21 | | the admission of a statement, otherwise inadmissible under
this | 22 | | Section, that is used only for impeachment and not as | 23 | | substantive
evidence.
| 24 | | (f) The presumption of inadmissibility of a statement made | 25 | | by a suspect at
a custodial interrogation at a police station | 26 | | or other place of detention may
be overcome by a preponderance |
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| 1 | | of the evidence
that
the statement was voluntarily given and is | 2 | | reliable, based on the totality of
the
circumstances.
| 3 | | (g) Any electronic recording of any statement made by a | 4 | | minor during a
custodial interrogation that is compiled by any | 5 | | law enforcement agency as
required by this Section for the | 6 | | purposes of fulfilling the requirements of
this
Section shall | 7 | | be confidential and exempt from public inspection and copying, | 8 | | as
provided under Section 7 of the Freedom of Information Act, | 9 | | and the information
shall not be transmitted to anyone except | 10 | | as needed to comply with this
Section.
| 11 | | (h) A statement, admission, confession, or incriminating | 12 | | information made by or obtained from a minor related to the | 13 | | instant offense, as part of any behavioral health screening, | 14 | | assessment, evaluation, or treatment, whether or not | 15 | | court-ordered, shall not be admissible as evidence against the | 16 | | minor on the issue of guilt only in the instant juvenile court | 17 | | proceeding. The provisions of this subsection (h) are in | 18 | | addition to and do not override any existing statutory and | 19 | | constitutional prohibition on the admission into evidence in | 20 | | delinquency proceedings of information obtained during | 21 | | screening, assessment, or treatment. | 22 | | (i) The changes made to this Section by Public Act 98-61 | 23 | | apply to statements of a minor made on or after January 1, 2014 | 24 | | (the effective date of Public Act 98-61). | 25 | | (Source: P.A. 97-1150, eff. 1-25-13; 98-61, eff. 1-1-14; | 26 | | 98-547, eff. 1-1-14; 98-756, eff. 7-16-14.)
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| 1 | | Section 10. The Code of Criminal Procedure of 1963 is | 2 | | amended by changing Section 103-2.1 as follows:
| 3 | | (725 ILCS 5/103-2.1)
| 4 | | Sec. 103-2.1. When statements by accused may be used.
| 5 | | (a) In this Section, "custodial interrogation" means any | 6 | | interrogation
during which (i) a reasonable person in the | 7 | | subject's position would consider
himself or herself to be in | 8 | | custody and (ii) during which
a question is asked that is | 9 | | reasonably likely to elicit an incriminating
response.
| 10 | | In this Section, "place of detention" means a building or a | 11 | | police station
that is a place of operation for a municipal | 12 | | police department or county
sheriff department or other law | 13 | | enforcement agency, not a courthouse, that
is owned or operated | 14 | | by a
law enforcement agency at which persons are or may be held | 15 | | in detention in
connection with criminal charges against those | 16 | | persons.
| 17 | | In this Section, "electronic recording" includes motion | 18 | | picture,
audiotape, or videotape, or digital recording.
| 19 | | (b) An oral, written, or sign language statement of an | 20 | | accused made as a
result of a
custodial
interrogation conducted | 21 | | at a police station or other place of detention shall be | 22 | | presumed
to be inadmissible as
evidence against the
accused in | 23 | | any
criminal
proceeding brought under Section 9-1, 9-1.2, 9-2, | 24 | | 9-2.1, 9-3, 9-3.2, or 9-3.3
of the Criminal Code of 1961 or the |
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| 1 | | Criminal Code of 2012 or under clause (d)(1)(F) of Section | 2 | | 11-501 of the Illinois Vehicle Code
unless:
| 3 | | (1) an electronic recording
is made of the custodial | 4 | | interrogation; and
| 5 | | (2) the recording is substantially accurate and not | 6 | | intentionally altered.
| 7 | | (b-5) Under the following circumstances, an oral, written, | 8 | | or sign language statement of an accused made as a result of a | 9 | | custodial interrogation conducted at a police station or other | 10 | | place of detention shall be presumed to be inadmissible as | 11 | | evidence against the accused, unless an electronic recording is | 12 | | made of the custodial interrogation and the recording is | 13 | | substantially accurate and not intentionally altered: | 14 | | (1) in any criminal proceeding brought under Section | 15 | | 11-1.40 or 20-1.1 of the Criminal Code of 1961 or the | 16 | | Criminal Code of 2012, if the custodial interrogation was | 17 | | conducted on or after June 1, 2014; | 18 | | (2) in any criminal proceeding brought under Section | 19 | | 10-2, 18-4, or 19-6 of the Criminal Code of 1961 or the | 20 | | Criminal Code of 2012, if the custodial interrogation was | 21 | | conducted on or after June 1, 2015; and | 22 | | (3) in any criminal proceeding brought under Section | 23 | | 11-1.30 or 18-2 or subsection (e) of Section 12-3.05 of the | 24 | | Criminal Code of 1961 or the Criminal Code of 2012, if the | 25 | | custodial interrogation was conducted on or after June 1, | 26 | | 2016. |
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| 1 | | (b-10) If, during the course of an electronically recorded | 2 | | custodial interrogation conducted under this Section, the | 3 | | accused makes a statement that creates a reasonable suspicion | 4 | | to believe the accused has committed an offense other than an | 5 | | offense required to be recorded under subsection (b) or (b-5), | 6 | | the interrogators may, without the accused's consent, continue | 7 | | to record the interrogation as it relates to the other offense | 8 | | notwithstanding any provision of law to the contrary. Any oral, | 9 | | written, or sign language statement of an accused made as a | 10 | | result of an interrogation under this subsection shall be | 11 | | presumed to be inadmissible as evidence against the accused in | 12 | | any criminal proceeding, unless the recording is substantially | 13 | | accurate and not intentionally altered. | 14 | | (b-15) An oral, written, or sign language statement of a | 15 | | minor made without counsel present throughout the entire | 16 | | custodial interrogation of the minor in violation of | 17 | | subsections (a) or (a-5) of Section 5-170 of the Juvenile Court | 18 | | Act of 1987 shall be inadmissible as evidence against the minor | 19 | | in a criminal proceeding brought under the Criminal Code of | 20 | | 2012. | 21 | | (c) Every electronic recording made under this Section
must | 22 | | be preserved
until such time as the
defendant's conviction
for | 23 | | any
offense relating to the statement is final and all direct | 24 | | and habeas corpus
appeals are
exhausted,
or the prosecution of | 25 | | such offenses is barred by law.
| 26 | | (d) If the court finds, by a preponderance of the evidence, |
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| 1 | | that the
defendant
was
subjected to a custodial interrogation | 2 | | in violation of this Section, then any
statements made
by the
| 3 | | defendant during or following that non-recorded custodial | 4 | | interrogation, even
if
otherwise in compliance with this | 5 | | Section, are presumed to be inadmissible in
any criminal
| 6 | | proceeding against the defendant except for the purposes of | 7 | | impeachment.
| 8 | | (e) Nothing in this Section precludes the admission (i) of | 9 | | a statement made
by the
accused in open court at his or her | 10 | | trial, before a grand jury, or at
a preliminary hearing, (ii)
| 11 | | of a
statement made during a
custodial interrogation that was | 12 | | not recorded as required by
this
Section, because electronic | 13 | | recording was not feasible, (iii) of a
voluntary
statement,
| 14 | | whether or not the result of a custodial interrogation, that | 15 | | has a bearing on
the
credibility of the accused as a witness,
| 16 | | (iv) of a spontaneous statement that is
not made in response to | 17 | | a question,
(v) of a statement made after questioning that is | 18 | | routinely
asked during the processing of the arrest of the | 19 | | suspect, (vi) of a statement
made
during a custodial | 20 | | interrogation by a suspect who requests, prior to making the
| 21 | | statement, to respond to the
interrogator's questions only if
| 22 | | an electronic recording is not made of the statement, provided | 23 | | that an
electronic
recording is made of the statement of | 24 | | agreeing to respond to
the interrogator's question, only if a | 25 | | recording is not made of the statement,
(vii) of a
statement | 26 | | made
during a custodial
interrogation that is conducted |
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| 1 | | out-of-state, (viii)
of a statement
given in violation of | 2 | | subsection (b) at a time when the interrogators are unaware | 3 | | that a death has in fact
occurred, (ix) of a statement given in | 4 | | violation of subsection (b-5) at a time when the interrogators | 5 | | are unaware of facts and circumstances that would create | 6 | | probable cause to believe that the accused committed an offense | 7 | | required to be recorded under subsection (b-5), or (x) of any | 8 | | other
statement that may be
admissible under law. The State | 9 | | shall bear the burden of proving, by a
preponderance of the | 10 | | evidence, that one of the exceptions described in this
| 11 | | subsection (e) is
applicable.
Nothing in
this Section precludes | 12 | | the admission of a statement, otherwise inadmissible
under
this | 13 | | Section, that is used only for impeachment and not as | 14 | | substantive
evidence.
| 15 | | (f) The presumption of inadmissibility of a statement made | 16 | | by a suspect at
a custodial interrogation at a police station | 17 | | or other place of detention may
be overcome by a preponderance | 18 | | of the evidence
that
the statement was voluntarily given and is | 19 | | reliable, based on the totality of
the
circumstances.
| 20 | | (g) Any electronic recording of any statement made by an | 21 | | accused during a
custodial interrogation that is compiled by | 22 | | any law enforcement agency as
required by this Section for the | 23 | | purposes of fulfilling the requirements of
this
Section shall | 24 | | be confidential and exempt from public inspection and copying, | 25 | | as
provided under Section 7 of the Freedom of Information Act, | 26 | | and the information
shall not be transmitted to anyone except |
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| 1 | | as needed to comply with this
Section.
| 2 | | (Source: P.A. 97-1150, eff. 1-25-13; 98-547, eff. 1-1-14.)".
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