Illinois General Assembly - Full Text of HB3958
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Full Text of HB3958  102nd General Assembly

HB3958ham001 102ND GENERAL ASSEMBLY

Rep. Justin Slaughter

Filed: 4/20/2021

 

 


 

 


 
10200HB3958ham001LRB102 17090 JWD 25704 a

1
AMENDMENT TO HOUSE BILL 3958

2    AMENDMENT NO. ______. Amend House Bill 3958 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Juvenile Court Act of 1987 is amended by
5changing 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
9interrogation (i) during which a reasonable person in the
10subject's position would consider himself or herself to be in
11custody and (ii) during which a question is asked that is
12reasonably likely to elicit an incriminating response.
13    In this Section, "electronic recording" includes motion
14picture, audiotape, videotape, or digital recording.
15    In this Section, "place of detention" means a building or
16a police station that is a place of operation for a municipal

 

 

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1police department or county sheriff department or other law
2enforcement agency at which persons are or may be held in
3detention in connection with criminal charges against those
4persons or allegations that those persons are delinquent
5minors.
6    (a-5) An oral, written, or sign language statement of a
7minor, who at the time of the commission of the offense was
8under 18 years of age, is presumed to be inadmissible when the
9statement is obtained from the minor while the minor is
10subject to custodial interrogation by a law enforcement
11officer, State's Attorney, juvenile officer, or other public
12official or employee prior to the officer, State's Attorney,
13public official, or employee:
14        (1) continuously reading reads to the minor, in its
15    entirety and without stopping for purposes of a response
16    from the minor or verifying comprehension, the following
17    statement: "You have the right to remain silent. That
18    means you do not have to say anything. Anything you do say
19    can be used against you in court. You have the right to get
20    help from a lawyer. If you cannot pay for a lawyer, the
21    court will get you one for free. You can ask for a lawyer
22    at any time. You have the right to stop this interview at
23    any time."; and
24        (2) after reading the statement required by paragraph
25    (1) of this subsection (a-5), the public official or
26    employee shall ask the minor the following questions and

 

 

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1    wait for the minor's response to each question:
2            (A) "Do you want to have a lawyer?"
3            (B) "Do you want to talk to me?"
4    (b) An oral, written, or sign language statement of a
5minor who, at the time of the commission of the offense was
6under the age of 18 years, made as a result of a custodial
7interrogation conducted at a police station or other place of
8detention on or after the effective date of this amendatory
9Act of the 99th General Assembly shall be presumed to be
10inadmissible as evidence against the minor in any criminal
11proceeding or juvenile court proceeding, for an act that if
12committed by an adult would be a misdemeanor offense under
13Article 11 of the Criminal Code of 2012 or any felony offense
14unless:
15        (1) an electronic recording is made of the custodial
16    interrogation; and
17        (2) the recording is substantially accurate and not
18    intentionally altered.
19    (b-5) (Blank).
20    (b-10) (Blank). If, during the course of an electronically
21recorded custodial interrogation conducted under this Section
22of a minor who, at the time of the commission of the offense
23was under the age of 18 years, the minor makes a statement that
24creates a reasonable suspicion to believe the minor has
25committed an act that if committed by an adult would be an
26offense other than an offense required to be recorded under

 

 

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1subsection (b), the interrogators may, without the minor's
2consent, continue to record the interrogation as it relates to
3the other offense notwithstanding any provision of law to the
4contrary. Any oral, written, or sign language statement of a
5minor made as a result of an interrogation under this
6subsection shall be presumed to be inadmissible as evidence
7against the minor in any criminal proceeding or juvenile court
8proceeding, unless the recording is substantially accurate and
9not intentionally altered.
10    (c) Every electronic recording made under this Section
11must be preserved until such time as the minor's adjudication
12for any offense relating to the statement is final and all
13direct and habeas corpus appeals are exhausted, or the
14prosecution of such offenses is barred by law.
15    (d) If the court finds, by a preponderance of the
16evidence, that the minor was subjected to a custodial
17interrogation in violation of this Section, then any
18statements made by the minor during or following that
19non-recorded custodial interrogation, even if otherwise in
20compliance with this Section, are presumed to be inadmissible
21in any criminal proceeding or juvenile court proceeding
22against the minor except for the purposes of impeachment.
23    (e) Nothing in this Section precludes the admission (i) of
24a statement made by the minor in open court in any criminal
25proceeding or juvenile court proceeding, before a grand jury,
26or at a preliminary hearing, (ii) of a statement made during a

 

 

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1custodial interrogation that was not recorded as required by
2this Section because electronic recording was not feasible,
3(iii) of a voluntary statement, whether or not the result of a
4custodial interrogation, that has a bearing on the credibility
5of the accused as a witness, (iv) of a spontaneous statement
6that is not made in response to a question, (v) of a statement
7made after questioning that is routinely asked during the
8processing of the arrest of the suspect, (vi) of a statement
9made during a custodial interrogation by a suspect who
10requests, prior to making the statement, to respond to the
11interrogator's questions only if an electronic recording is
12not made of the statement, provided that an electronic
13recording is made of the statement of agreeing to respond to
14the interrogator's question, only if a recording is not made
15of the statement, (vii) of a statement made during a custodial
16interrogation that is conducted out-of-state, (viii) of a
17statement given in violation of subsection (b) at a time when
18the interrogators are unaware that a death has in fact
19occurred, (ix) (blank), or (x) of any other statement that may
20be admissible under law. The State shall bear the burden of
21proving, by a preponderance of the evidence, that one of the
22exceptions described in this subsection (e) is applicable.
23Nothing in this Section precludes the admission of a
24statement, otherwise inadmissible under this Section, that is
25used only for impeachment and not as substantive evidence.
26    (f) The presumption of inadmissibility of a statement made

 

 

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1by a suspect at a custodial interrogation at a police station
2or other place of detention may be overcome by a preponderance
3of the evidence that the statement was voluntarily given and
4is reliable, based on the totality of the circumstances.
5    (g) Any electronic recording of any statement made by a
6minor during a custodial interrogation that is compiled by any
7law enforcement agency as required by this Section for the
8purposes of fulfilling the requirements of this Section shall
9be confidential and exempt from public inspection and copying,
10as provided under Section 7 of the Freedom of Information Act,
11and the information shall not be transmitted to anyone except
12as needed to comply with this Section.
13    (h) A statement, admission, confession, or incriminating
14information made by or obtained from a minor related to the
15instant offense, as part of any behavioral health screening,
16assessment, evaluation, or treatment, whether or not
17court-ordered, shall not be admissible as evidence against the
18minor on the issue of guilt only in the instant juvenile court
19proceeding. The provisions of this subsection (h) are in
20addition to and do not override any existing statutory and
21constitutional prohibition on the admission into evidence in
22delinquency proceedings of information obtained during
23screening, assessment, or treatment.
24    (i) The changes made to this Section by Public Act 98-61
25apply to statements of a minor made on or after January 1, 2014
26(the effective date of Public Act 98-61).

 

 

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1(Source: P.A. 98-61, eff. 1-1-14; 98-547, eff. 1-1-14; 98-756,
2eff. 7-16-14; 99-882, eff. 1-1-17.)
 
3    Section 10. The Code of Criminal Procedure of 1963 is
4amended by changing Section 103-2.1 as follows:
 
5    (725 ILCS 5/103-2.1)
6    Sec. 103-2.1. When statements by accused may be used.
7    (a) In this Section, "custodial interrogation" means any
8interrogation during which (i) a reasonable person in the
9subject's position would consider himself or herself to be in
10custody and (ii) during which a question is asked that is
11reasonably likely to elicit an incriminating response.
12    In this Section, "place of detention" means a building or
13a police station that is a place of operation for a municipal
14police department or county sheriff department or other law
15enforcement agency, not a courthouse, that is owned or
16operated by a law enforcement agency at which persons are or
17may be held in detention in connection with criminal charges
18against those persons.
19    In this Section, "electronic recording" includes motion
20picture, audiotape, or videotape, or digital recording.
21    (a-5) An oral, written, or sign language statement of a
22minor, who at the time of the commission of the offense was
23under 18 years of age, is presumed to be inadmissible when the
24statement is obtained from the minor while the minor is

 

 

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1subject to custodial interrogation by a law enforcement
2officer, State's Attorney, juvenile officer, or other public
3official or employee prior to the officer, State's Attorney,
4public official, or employee:
5        (1) continuously reading reads to the minor, in its
6    entirety and without stopping for purposes of a response
7    from the minor or verifying comprehension, the following
8    statement: "You have the right to remain silent. That
9    means you do not have to say anything. Anything you do say
10    can be used against you in court. You have the right to get
11    help from a lawyer. If you cannot pay for a lawyer, the
12    court will get you one for free. You can ask for a lawyer
13    at any time. You have the right to stop this interview at
14    any time."; and
15        (2) after reading the statement required by paragraph
16    (1) of this subsection (a-5), the public official or
17    employee shall ask the minor the following questions and
18    wait for the minor's response to each question:
19            (A) "Do you want to have a lawyer?"
20            (B) "Do you want to talk to me?"
21    (a-10) (Blank). An oral, written, or sign language
22statement of a minor, who at the time of the commission of the
23offense was under 18 years of age, made as a result of a
24custodial interrogation conducted at a police station or other
25place of detention on or after the effective date of this
26amendatory Act of the 99th General Assembly shall be presumed

 

 

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1to be inadmissible as evidence in a criminal proceeding or a
2juvenile court proceeding for an act that if committed by an
3adult would be a misdemeanor offense under Article 11 of the
4Criminal Code of 2012 or a felony offense under the Criminal
5Code of 2012 unless:
6        (1) an electronic recording is made of the custodial
7    interrogation; and
8        (2) the recording is substantially accurate and not
9    intentionally altered.
10    (b) An oral, written, or sign language statement of an
11accused made as a result of a custodial interrogation
12conducted at a police station or other place of detention
13shall be presumed to be inadmissible as evidence against the
14accused in any felony criminal proceeding brought under
15Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, or 9-3.3 of the
16Criminal Code of 1961 or the Criminal Code of 2012 or under
17clause (d)(1)(F) of Section 11-501 of the Illinois Vehicle
18Code unless:
19        (1) an electronic recording is made of the custodial
20    interrogation; and
21        (2) the recording is substantially accurate and not
22    intentionally altered.
23    (b-5) (Blank). Under the following circumstances, an oral,
24written, or sign language statement of an accused made as a
25result of a custodial interrogation conducted at a police
26station or other place of detention shall be presumed to be

 

 

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1inadmissible as evidence against the accused, unless an
2electronic recording is made of the custodial interrogation
3and the recording is substantially accurate and not
4intentionally altered:
5        (1) in any criminal proceeding brought under Section
6    11-1.40 or 20-1.1 of the Criminal Code of 1961 or the
7    Criminal Code of 2012, if the custodial interrogation was
8    conducted on or after June 1, 2014;
9        (2) in any criminal proceeding brought under Section
10    10-2, 18-4, or 19-6 of the Criminal Code of 1961 or the
11    Criminal Code of 2012, if the custodial interrogation was
12    conducted on or after June 1, 2015; and
13        (3) in any criminal proceeding brought under Section
14    11-1.30 or 18-2 or subsection (e) of Section 12-3.05 of
15    the Criminal Code of 1961 or the Criminal Code of 2012, if
16    the custodial interrogation was conducted on or after June
17    1, 2016.
18    (b-10) (Blank). If, during the course of an electronically
19recorded custodial interrogation conducted under this Section,
20the accused makes a statement that creates a reasonable
21suspicion to believe the accused has committed an offense
22other than an offense required to be recorded under subsection
23(b) or (b-5), the interrogators may, without the accused's
24consent, continue to record the interrogation as it relates to
25the other offense notwithstanding any provision of law to the
26contrary. Any oral, written, or sign language statement of an

 

 

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1accused made as a result of an interrogation under this
2subsection shall be presumed to be inadmissible as evidence
3against the accused in any criminal proceeding, unless the
4recording is substantially accurate and not intentionally
5altered.
6    (c) Every electronic recording made under this Section
7must be preserved until such time as the defendant's
8conviction for any offense relating to the statement is final
9and all direct and habeas corpus appeals are exhausted, or the
10prosecution of such offenses is barred by law.
11    (d) If the court finds, by a preponderance of the
12evidence, that the defendant was subjected to a custodial
13interrogation in violation of this Section, then any
14statements made by the defendant during or following that
15non-recorded custodial interrogation, even if otherwise in
16compliance with this Section, are presumed to be inadmissible
17in any criminal proceeding against the defendant except for
18the purposes of impeachment.
19    (e) Nothing in this Section precludes the admission (i) of
20a statement made by the accused in open court at his or her
21trial, before a grand jury, or at a preliminary hearing, (ii)
22of a statement made during a custodial interrogation that was
23not recorded as required by this Section, because electronic
24recording was not feasible, (iii) of a voluntary statement,
25whether or not the result of a custodial interrogation, that
26has a bearing on the credibility of the accused as a witness,

 

 

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1(iv) of a spontaneous statement that is not made in response to
2a question, (v) of a statement made after questioning that is
3routinely asked during the processing of the arrest of the
4suspect, (vi) of a statement made during a custodial
5interrogation by a suspect who requests, prior to making the
6statement, to respond to the interrogator's questions only if
7an electronic recording is not made of the statement, provided
8that an electronic recording is made of the statement of
9agreeing to respond to the interrogator's question, only if a
10recording is not made of the statement, (vii) of a statement
11made during a custodial interrogation that is conducted
12out-of-state, (viii) of a statement given in violation of
13subsection (b) at a time when the interrogators are unaware
14that a death has in fact occurred, (ix) (blank) of a statement
15given in violation of subsection (b-5) at a time when the
16interrogators are unaware of facts and circumstances that
17would create probable cause to believe that the accused
18committed an offense required to be recorded under subsection
19(b-5), or (x) of any other statement that may be admissible
20under law. The State shall bear the burden of proving, by a
21preponderance of the evidence, that one of the exceptions
22described in this subsection (e) is applicable. Nothing in
23this Section precludes the admission of a statement, otherwise
24inadmissible under this Section, that is used only for
25impeachment and not as substantive evidence.
26    (f) The presumption of inadmissibility of a statement made

 

 

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1by a suspect at a custodial interrogation at a police station
2or other place of detention may be overcome by a preponderance
3of the evidence that the statement was voluntarily given and
4is reliable, based on the totality of the circumstances.
5    (g) Any electronic recording of any statement made by an
6accused during a custodial interrogation that is compiled by
7any law enforcement agency as required by this Section for the
8purposes of fulfilling the requirements of this Section shall
9be confidential and exempt from public inspection and copying,
10as provided under Section 7 of the Freedom of Information Act,
11and the information shall not be transmitted to anyone except
12as needed to comply with this Section.
13(Source: P.A. 98-547, eff. 1-1-14; 99-882, eff. 1-1-17.)".