Full Text of HB3958 102nd General Assembly
HB3958eng 102ND GENERAL ASSEMBLY |
| | HB3958 Engrossed | | LRB102 17090 RLC 22519 b |
|
| 1 | | AN ACT concerning criminal law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 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, "place of detention" means a building
or | 16 | | a police station that is a place of operation for a municipal | 17 | | police
department or county sheriff department or other law | 18 | | enforcement agency
at which persons are or may be held in | 19 | | detention in
connection with criminal charges against those | 20 | | persons or allegations that
those
persons are delinquent | 21 | | minors.
| 22 | | (a-5) An oral, written, or sign language statement of a | 23 | | minor, who at the time of the commission of the offense was |
| | | HB3958 Engrossed | - 2 - | LRB102 17090 RLC 22519 b |
|
| 1 | | under 18 years of age, is presumed to be inadmissible when the | 2 | | statement is obtained from the minor while the minor is | 3 | | subject to custodial interrogation by a law enforcement | 4 | | officer, State's Attorney, juvenile officer, or other public | 5 | | official or employee prior to the officer, State's Attorney, | 6 | | public official, or employee: | 7 | | (1) continuously reading reads to the minor, in its | 8 | | entirety and without stopping for purposes of a response | 9 | | from the minor or verifying comprehension, the following | 10 | | statement: "You have the right to remain silent. That | 11 | | means you do not have to say anything. Anything you do say | 12 | | can be used against you in court. You have the right to get | 13 | | help from a lawyer. If you cannot pay for a lawyer, the | 14 | | court will get you one for free. You can ask for a lawyer | 15 | | at any time. You have the right to stop this interview at | 16 | | any time."; and | 17 | | (2) after reading the statement required by paragraph | 18 | | (1) of this subsection (a-5), the public official or | 19 | | employee shall ask the minor the following questions and | 20 | | wait for the minor's response to each question: | 21 | | (A) "Do you want to have a lawyer?" | 22 | | (B) "Do you want to talk to me?" | 23 | | (b) An oral, written, or sign language statement of a | 24 | | minor who, at the time
of the
commission of the offense was | 25 | | under the age of 18
years, made as a
result of a custodial | 26 | | interrogation conducted at a police station or other
place of |
| | | HB3958 Engrossed | - 3 - | LRB102 17090 RLC 22519 b |
|
| 1 | | detention on or after
the effective date of
this amendatory | 2 | | Act of the 99th General Assembly shall be presumed to be
| 3 | | inadmissible as evidence against the
minor in
any criminal | 4 | | proceeding or juvenile court proceeding,
for an act that if | 5 | | committed by an adult would be
a misdemeanor offense under | 6 | | Article 11 of the Criminal Code of 2012 or any felony offense
| 7 | | unless:
| 8 | | (1) an electronic recording
is made of the custodial | 9 | | interrogation; and
| 10 | | (2) the recording is substantially accurate and not | 11 | | intentionally altered.
| 12 | | (b-5) (Blank). | 13 | | (b-10) (Blank). If, during the course of an electronically | 14 | | recorded custodial interrogation conducted under this Section | 15 | | of a minor who, at the time
of the
commission of the offense | 16 | | was under the age of 18
years, the minor makes a statement that | 17 | | creates a reasonable suspicion to believe the minor has | 18 | | committed an act that if committed by an adult would be an | 19 | | offense other than an offense required to be recorded under | 20 | | subsection (b), the interrogators may, without the minor's | 21 | | consent, continue to record the interrogation as it relates to | 22 | | the other offense notwithstanding any provision of law to the | 23 | | contrary. Any oral, written, or sign language statement of a | 24 | | minor made as a result of an interrogation under this | 25 | | subsection shall be presumed to be inadmissible as evidence | 26 | | against the minor in any criminal proceeding or juvenile court |
| | | HB3958 Engrossed | - 4 - | LRB102 17090 RLC 22519 b |
|
| 1 | | proceeding, unless the recording is substantially accurate and | 2 | | not intentionally altered. | 3 | | (c) Every electronic recording made under this Section
| 4 | | must be preserved
until such time as the
minor's adjudication
| 5 | | for any
offense relating to the statement is final and all | 6 | | direct and habeas corpus
appeals are
exhausted,
or the | 7 | | prosecution of such offenses is barred by law.
| 8 | | (d) If the court finds, by a preponderance of the | 9 | | evidence, that the
minor
was
subjected to a custodial | 10 | | interrogation in violation of this Section,
then any | 11 | | statements made
by the
minor during or following that | 12 | | non-recorded custodial interrogation, even
if
otherwise in | 13 | | compliance with this Section, are presumed to be inadmissible | 14 | | in
any criminal
proceeding or juvenile court proceeding | 15 | | against the minor except for the
purposes of impeachment.
| 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 |
| | | HB3958 Engrossed | - 5 - | LRB102 17090 RLC 22519 b |
|
| 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 | 5 | | not made of the statement, provided that an
electronic
| 6 | | recording is made of the statement of agreeing to respond to
| 7 | | the interrogator's question, only if a recording is not made | 8 | | of the 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) (blank), or (x) of any
other statement that may | 13 | | be admissible under law. The State shall bear the
burden of | 14 | | proving, by a preponderance of the evidence, that one of the
| 15 | | exceptions described in this subsection (e) is applicable. | 16 | | Nothing in this
Section precludes the admission of a | 17 | | statement, otherwise inadmissible under
this Section, that is | 18 | | used only for impeachment and not as substantive
evidence.
| 19 | | (f) The presumption of inadmissibility of a statement made | 20 | | by a suspect at
a custodial interrogation at a police station | 21 | | or other place of detention may
be overcome by a preponderance | 22 | | of the evidence
that
the statement was voluntarily given and | 23 | | is reliable, based on the totality of
the
circumstances.
| 24 | | (g) Any electronic recording of any statement made by a | 25 | | minor during a
custodial interrogation that is compiled by any | 26 | | law enforcement agency as
required by this Section for the |
| | | HB3958 Engrossed | - 6 - | LRB102 17090 RLC 22519 b |
|
| 1 | | purposes of fulfilling the requirements of
this
Section shall | 2 | | be confidential and exempt from public inspection and copying, | 3 | | as
provided under Section 7 of the Freedom of Information Act, | 4 | | and the information
shall not be transmitted to anyone except | 5 | | as needed to comply with this
Section.
| 6 | | (h) A statement, admission, confession, or incriminating | 7 | | information made by or obtained from a minor related to the | 8 | | instant offense, as part of any behavioral health screening, | 9 | | assessment, evaluation, or treatment, whether or not | 10 | | court-ordered, shall not be admissible as evidence against the | 11 | | minor on the issue of guilt only in the instant juvenile court | 12 | | proceeding. The provisions of this subsection (h) are in | 13 | | addition to and do not override any existing statutory and | 14 | | constitutional prohibition on the admission into evidence in | 15 | | delinquency proceedings of information obtained during | 16 | | screening, assessment, or treatment. | 17 | | (i) The changes made to this Section by Public Act 98-61 | 18 | | apply to statements of a minor made on or after January 1, 2014 | 19 | | (the effective date of Public Act 98-61). | 20 | | (Source: P.A. 98-61, eff. 1-1-14; 98-547, eff. 1-1-14; 98-756, | 21 | | eff. 7-16-14; 99-882, eff. 1-1-17 .)
| 22 | | Section 10. The Code of Criminal Procedure of 1963 is | 23 | | amended by changing Section 103-2.1 as follows:
| 24 | | (725 ILCS 5/103-2.1)
|
| | | HB3958 Engrossed | - 7 - | LRB102 17090 RLC 22519 b |
|
| 1 | | Sec. 103-2.1. When statements by accused may be used.
| 2 | | (a) In this Section, "custodial interrogation" means any | 3 | | interrogation
during which (i) a reasonable person in the | 4 | | subject's position would consider
himself or herself to be in | 5 | | custody and (ii) during which
a question is asked that is | 6 | | reasonably likely to elicit an incriminating
response.
| 7 | | In this Section, "place of detention" means a building or | 8 | | a police station
that is a place of operation for a municipal | 9 | | police department or county
sheriff department or other law | 10 | | enforcement agency, not a courthouse, that
is owned or | 11 | | operated by a
law enforcement agency at which persons are or | 12 | | may be held in detention in
connection with criminal charges | 13 | | against those persons.
| 14 | | In this Section, "electronic recording" includes motion | 15 | | picture,
audiotape, or videotape, or digital recording.
| 16 | | (a-5) An oral, written, or sign language statement of a | 17 | | minor, who at the time of the commission of the offense was | 18 | | under 18 years of age, is presumed to be inadmissible when the | 19 | | statement is obtained from the minor while the minor is | 20 | | subject to custodial interrogation by a law enforcement | 21 | | officer, State's Attorney, juvenile officer, or other public | 22 | | official or employee prior to the officer, State's Attorney, | 23 | | public official, or employee: | 24 | | (1) continuously reading reads to the minor, in its | 25 | | entirety and without stopping for purposes of a response | 26 | | from the minor or verifying comprehension, the following |
| | | HB3958 Engrossed | - 8 - | LRB102 17090 RLC 22519 b |
|
| 1 | | statement: "You have the right to remain silent. That | 2 | | means you do not have to say anything. Anything you do say | 3 | | can be used against you in court. You have the right to get | 4 | | help from a lawyer. If you cannot pay for a lawyer, the | 5 | | court will get you one for free. You can ask for a lawyer | 6 | | at any time. You have the right to stop this interview at | 7 | | any time."; and | 8 | | (2) after reading the statement required by paragraph | 9 | | (1) of this subsection (a-5), the public official or | 10 | | employee shall ask the minor the following questions and | 11 | | wait for the minor's response to each question: | 12 | | (A) "Do you want to have a lawyer?" | 13 | | (B) "Do you want to talk to me?" | 14 | | (a-10) (Blank). An oral, written, or sign language | 15 | | statement of a minor, who at the time of the commission of the | 16 | | offense was under 18 years of age, made as a result of a | 17 | | custodial interrogation conducted at a police station or other | 18 | | place of detention on or after the effective date of this | 19 | | amendatory Act of the 99th General Assembly shall be presumed | 20 | | to be inadmissible as evidence in a criminal proceeding or a | 21 | | juvenile court proceeding for an act that if committed by an | 22 | | adult would be a misdemeanor offense under Article 11 of the | 23 | | Criminal Code of 2012 or a felony offense under the Criminal | 24 | | Code of 2012 unless: | 25 | | (1) an electronic recording is made of the custodial | 26 | | interrogation; and |
| | | HB3958 Engrossed | - 9 - | LRB102 17090 RLC 22519 b |
|
| 1 | | (2) the recording is substantially accurate and not | 2 | | intentionally altered. | 3 | | (b) An oral, written, or sign language statement of an | 4 | | accused made as a
result of a
custodial
interrogation | 5 | | conducted at a police station or other place of detention | 6 | | shall be presumed
to be inadmissible as
evidence against the
| 7 | | accused in any
felony criminal
proceeding brought under | 8 | | Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, or 9-3.3
of the | 9 | | Criminal Code of 1961 or the Criminal Code of 2012 or under | 10 | | clause (d)(1)(F) of Section 11-501 of the Illinois Vehicle | 11 | | Code
unless:
| 12 | | (1) an electronic recording
is made of the custodial | 13 | | interrogation; and
| 14 | | (2) the recording is substantially accurate and not | 15 | | intentionally altered.
| 16 | | (b-5) (Blank). Under the following circumstances, an oral, | 17 | | written, or sign language statement of an accused made as a | 18 | | result of a custodial interrogation conducted at a police | 19 | | station or other place of detention shall be presumed to be | 20 | | inadmissible as evidence against the accused, unless an | 21 | | electronic recording is made of the custodial interrogation | 22 | | and the recording is substantially accurate and not | 23 | | intentionally altered: | 24 | | (1) in any criminal proceeding brought under Section | 25 | | 11-1.40 or 20-1.1 of the Criminal Code of 1961 or the | 26 | | Criminal Code of 2012, if the custodial interrogation was |
| | | HB3958 Engrossed | - 10 - | LRB102 17090 RLC 22519 b |
|
| 1 | | conducted on or after June 1, 2014; | 2 | | (2) in any criminal proceeding brought under Section | 3 | | 10-2, 18-4, or 19-6 of the Criminal Code of 1961 or the | 4 | | Criminal Code of 2012, if the custodial interrogation was | 5 | | conducted on or after June 1, 2015; and | 6 | | (3) in any criminal proceeding brought under Section | 7 | | 11-1.30 or 18-2 or subsection (e) of Section 12-3.05 of | 8 | | the Criminal Code of 1961 or the Criminal Code of 2012, if | 9 | | the custodial interrogation was conducted on or after June | 10 | | 1, 2016. | 11 | | (b-10) (Blank). If, during the course of an electronically | 12 | | recorded custodial interrogation conducted under this Section, | 13 | | the accused makes a statement that creates a reasonable | 14 | | suspicion to believe the accused has committed an offense | 15 | | other than an offense required to be recorded under subsection | 16 | | (b) or (b-5), the interrogators may, without the accused's | 17 | | consent, continue to record the interrogation as it relates to | 18 | | the other offense notwithstanding any provision of law to the | 19 | | contrary. Any oral, written, or sign language statement of an | 20 | | accused made as a result of an interrogation under this | 21 | | subsection shall be presumed to be inadmissible as evidence | 22 | | against the accused in any criminal proceeding, unless the | 23 | | recording is substantially accurate and not intentionally | 24 | | altered. | 25 | | (c) Every electronic recording made under this Section
| 26 | | must be preserved
until such time as the
defendant's |
| | | HB3958 Engrossed | - 11 - | LRB102 17090 RLC 22519 b |
|
| 1 | | conviction
for any
offense relating to the statement is final | 2 | | and all direct and habeas corpus
appeals are
exhausted,
or the | 3 | | prosecution of such offenses is barred by law.
| 4 | | (d) If the court finds, by a preponderance of the | 5 | | evidence, that the
defendant
was
subjected to a custodial | 6 | | interrogation in violation of this Section, then any
| 7 | | statements made
by the
defendant during or following that | 8 | | non-recorded custodial interrogation, even
if
otherwise in | 9 | | compliance with this Section, are presumed to be inadmissible | 10 | | in
any criminal
proceeding against the defendant except for | 11 | | the purposes of impeachment.
| 12 | | (e) Nothing in this Section precludes the admission (i) of | 13 | | a statement made
by the
accused in open court at his or her | 14 | | trial, before a grand jury, or at
a preliminary hearing, (ii)
| 15 | | of a
statement made during a
custodial interrogation that was | 16 | | not recorded as required by
this
Section, because electronic | 17 | | recording was not feasible, (iii) of a
voluntary
statement,
| 18 | | whether or not the result of a custodial interrogation, that | 19 | | has a bearing on
the
credibility of the accused as a witness,
| 20 | | (iv) of a spontaneous statement that is
not made in response to | 21 | | a question,
(v) of a statement made after questioning that is | 22 | | routinely
asked during the processing of the arrest of the | 23 | | suspect, (vi) of a statement
made
during a custodial | 24 | | interrogation by a suspect who requests, prior to making the
| 25 | | statement, to respond to the
interrogator's questions only if
| 26 | | an electronic recording is not made of the statement, provided |
| | | HB3958 Engrossed | - 12 - | LRB102 17090 RLC 22519 b |
|
| 1 | | that an
electronic
recording is made of the statement of | 2 | | agreeing to respond to
the interrogator's question, only if a | 3 | | recording is not made of the statement,
(vii) of a
statement | 4 | | made
during a custodial
interrogation that is conducted | 5 | | out-of-state, (viii)
of a statement
given in violation of | 6 | | subsection (b) at a time when the interrogators are unaware | 7 | | that a death has in fact
occurred, (ix) (blank) of a statement | 8 | | given in violation of subsection (b-5) at a time when the | 9 | | interrogators are unaware of facts and circumstances that | 10 | | would create probable cause to believe that the accused | 11 | | committed an offense required to be recorded under subsection | 12 | | (b-5) , or (x) of any other
statement that may be
admissible | 13 | | under law. The State shall bear the burden of proving, by a
| 14 | | preponderance of the evidence, that one of the exceptions | 15 | | described in this
subsection (e) is
applicable.
Nothing in
| 16 | | this Section precludes the admission of a statement, otherwise | 17 | | inadmissible
under
this Section, that is used only for | 18 | | impeachment and not as substantive
evidence.
| 19 | | (f) The presumption of inadmissibility of a statement made | 20 | | by a suspect at
a custodial interrogation at a police station | 21 | | or other place of detention may
be overcome by a preponderance | 22 | | of the evidence
that
the statement was voluntarily given and | 23 | | is reliable, based on the totality of
the
circumstances.
| 24 | | (g) Any electronic recording of any statement made by an | 25 | | accused during a
custodial interrogation that is compiled by | 26 | | any law enforcement agency as
required by this Section for the |
| | | HB3958 Engrossed | - 13 - | LRB102 17090 RLC 22519 b |
|
| 1 | | purposes of fulfilling the requirements of
this
Section shall | 2 | | be confidential and exempt from public inspection and copying, | 3 | | as
provided under Section 7 of the Freedom of Information Act, | 4 | | and the information
shall not be transmitted to anyone except | 5 | | as needed to comply with this
Section.
| 6 | | (Source: P.A. 98-547, eff. 1-1-14; 99-882, eff. 1-1-17 .)
|
|