Full Text of HB4609 101st General Assembly
HB4609 101ST GENERAL ASSEMBLY |
| | 101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020 HB4609 Introduced 2/5/2020, by Rep. Justin Slaughter SYNOPSIS AS INTRODUCED: |
| 705 ILCS 405/5-170 | | 705 ILCS 405/5-401.5 | | 725 ILCS 5/103-2.1 | |
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Amends the Juvenile Court Act of 1987. Provides that minors under 18 years of age (rather than 15 years of age) at the time of the commission of an act if committed by an adult would be a violation of first degree murder, intentional homicide of an unborn child, second degree murder, voluntary manslaughter of an unborn child, involuntary manslaughter and reckless homicide, involuntary manslaughter and reckless homicide of an unborn child, drug-induced homicide, criminal sexual assault, aggravated criminal sexual assault, predatory criminal sexual assault of a child, criminal sexual abuse, or aggravated criminal sexual abuse, must be represented by counsel throughout the entire custodial interrogation of the minor. Provides that an oral, written, or sign language statement of a minor made without the presence of counsel during a custodial interrogation in violation of the Act on or after the effective date of the amendatory Act is inadmissible as evidence against the minor in a proceeding under the Act or under the Criminal Code of 2012. Makes a conforming change in the Code of Criminal Procedure of 1963.
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| | A BILL FOR |
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| 1 | | AN ACT concerning courts.
| 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 Sections 5-170 and 5-401.5 as follows:
| 6 | | (705 ILCS 405/5-170)
| 7 | | Sec. 5-170. Representation by counsel.
| 8 | | (a) In a proceeding
under this Article, a minor who was | 9 | | under 18 15 years of age at the time of the
commission of an act | 10 | | that if committed by an adult would be a violation of
Section | 11 | | 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, 9-3.3, 11-1.20, 11-1.30, | 12 | | 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 12-14.1,
12-15, or | 13 | | 12-16 of the Criminal Code of 1961 or the Criminal Code of 2012 | 14 | | must be represented by counsel throughout
the entire custodial | 15 | | interrogation of the minor. | 16 | | (b) In a judicial proceeding
under this Article, a minor | 17 | | may not waive the right to the assistance of counsel in his or | 18 | | her defense.
| 19 | | (Source: P.A. 99-882, eff. 1-1-17 .)
| 20 | | (705 ILCS 405/5-401.5)
| 21 | | Sec. 5-401.5. When statements by minor may be used.
| 22 | | (a) In this Section, "custodial interrogation" means any |
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| 1 | | interrogation
(i) during which 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, "electronic recording" includes motion | 6 | | picture,
audiotape, videotape, or digital recording.
| 7 | | In this Section, "place of detention" means a building
or a | 8 | | police station that is a place of operation for a municipal | 9 | | police
department or county sheriff department or other law | 10 | | enforcement agency
at which persons are or may be held in | 11 | | detention in
connection with criminal charges against those | 12 | | persons or allegations that
those
persons are delinquent | 13 | | minors.
| 14 | | (a-5) An oral, written, or sign language statement of a | 15 | | minor, who at the time of the commission of the offense was | 16 | | under 18 years of age, is presumed to be inadmissible when the | 17 | | statement is obtained from the minor while the minor is subject | 18 | | to custodial interrogation by a law enforcement officer, | 19 | | State's Attorney, juvenile officer, or other public official or | 20 | | employee prior to the officer, State's Attorney, public | 21 | | official, or employee: | 22 | | (1) continuously reads to the minor, in its entirety | 23 | | and without stopping for purposes of a response from the | 24 | | minor or verifying comprehension, the following statement: | 25 | | "You have the right to remain silent. That means you do not | 26 | | have to say anything. Anything you do say can be used |
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| 1 | | against you in court. You have the right to get help from a | 2 | | lawyer. If you cannot pay for a lawyer, the court will get | 3 | | you one for free. You can ask for a lawyer at any time. You | 4 | | have the right to stop this interview at any time."; and | 5 | | (2) after reading the statement required by paragraph | 6 | | (1) of this subsection (a-5), the public official or | 7 | | employee shall ask the minor the following questions and | 8 | | wait for the minor's response to each question: | 9 | | (A) "Do you want to have a lawyer?" | 10 | | (B) "Do you want to talk to me?" | 11 | | (b) An oral, written, or sign language statement of a minor | 12 | | who, at the time
of the
commission of the offense was under the | 13 | | age of 18
years, made as a
result of a custodial interrogation | 14 | | conducted at a police station or other
place of detention on or | 15 | | after
the effective date of
this amendatory Act of the 99th | 16 | | General Assembly shall be presumed to be
inadmissible as | 17 | | evidence against the
minor in
any criminal proceeding or | 18 | | juvenile court proceeding,
for an act that if committed by an | 19 | | adult would be
a misdemeanor offense under Article 11 of the | 20 | | Criminal Code of 2012 or any felony offense
unless:
| 21 | | (1) an electronic recording
is made of the custodial | 22 | | interrogation; and
| 23 | | (2) the recording is substantially accurate and not | 24 | | intentionally altered.
| 25 | | (b-5) (Blank). | 26 | | (b-7) An oral, written, or sign language statement of a |
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| 1 | | minor made without the presence of counsel during a custodial | 2 | | interrogation in violation of Section 5-170 of this Act on or | 3 | | after the effective date of this amendatory Act of the 101st | 4 | | General Assembly is inadmissible as evidence against the minor | 5 | | in a proceeding under this Act or in a proceeding under the | 6 | | Criminal Code of 2012. | 7 | | (b-10) If, during the course of an electronically recorded | 8 | | custodial interrogation conducted under this Section of a minor | 9 | | who, at the time
of the
commission of the offense was under the | 10 | | age of 18
years, the minor makes a statement that creates a | 11 | | reasonable suspicion to believe the minor has committed an act | 12 | | that if committed by an adult would be an offense other than an | 13 | | offense required to be recorded under subsection (b), the | 14 | | interrogators may, without the minor's consent, continue to | 15 | | record the interrogation as it relates to the other offense | 16 | | notwithstanding any provision of law to the contrary. Any oral, | 17 | | written, or sign language statement of a minor made as a result | 18 | | of an interrogation under this subsection shall be presumed to | 19 | | be inadmissible as evidence against the minor in any criminal | 20 | | proceeding or juvenile court proceeding, unless the recording | 21 | | is substantially accurate and not intentionally altered. | 22 | | (c) Every electronic recording made under this Section
must | 23 | | be preserved
until such time as the
minor's adjudication
for | 24 | | any
offense relating to the statement is final and all direct | 25 | | and habeas corpus
appeals are
exhausted,
or the prosecution of | 26 | | such offenses is barred by law.
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| 1 | | (d) If the court finds, by a preponderance of the evidence, | 2 | | that the
minor
was
subjected to a custodial interrogation in | 3 | | violation of this Section,
then any statements made
by the
| 4 | | minor during or following that non-recorded custodial | 5 | | interrogation, even
if
otherwise in compliance with this | 6 | | Section, are presumed to be inadmissible in
any criminal
| 7 | | proceeding or juvenile court proceeding against the minor | 8 | | except for the
purposes of impeachment.
| 9 | | (e) Nothing in this Section precludes the admission (i) of | 10 | | a statement made
by the
minor in open court in any criminal | 11 | | proceeding or juvenile court proceeding,
before a grand jury, | 12 | | or
at a
preliminary hearing,
(ii) of a
statement made during a
| 13 | | custodial interrogation that was not recorded as required by
| 14 | | this
Section because electronic recording was not feasible, | 15 | | (iii) of a
voluntary
statement,
whether or not the result of a | 16 | | custodial interrogation, that has a bearing on
the
credibility | 17 | | of the accused as a witness, (iv)
of a spontaneous statement
| 18 | | that is not made in response to a question,
(v) of a statement | 19 | | made after questioning that is routinely
asked during the | 20 | | processing of the arrest of the suspect, (vi) of a statement
| 21 | | made during a custodial interrogation by a suspect who | 22 | | requests, prior to
making
the statement, to respond to the
| 23 | | interrogator's questions only if
an electronic recording is not | 24 | | made of the statement, provided that an
electronic
recording is | 25 | | made of the statement of agreeing to respond to
the | 26 | | interrogator's question, only if a recording is not made of the |
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| 1 | | statement,
(vii)
of a statement made
during a custodial
| 2 | | interrogation that is conducted out-of-state,
(viii)
of a
| 3 | | statement given in violation of subsection (b) at a time when | 4 | | the interrogators are unaware that a death
has in fact | 5 | | occurred, (ix) (blank), or (x) of any
other statement that may | 6 | | be admissible under law. The State shall bear the
burden of | 7 | | proving, by a preponderance of the evidence, that one of the
| 8 | | exceptions described in this subsection (e) is applicable. | 9 | | Nothing in this
Section precludes the admission of a statement, | 10 | | otherwise inadmissible under
this Section, that is used only | 11 | | for impeachment and not as substantive
evidence.
| 12 | | (f) The presumption of inadmissibility of a statement made | 13 | | by a suspect at
a custodial interrogation at a police station | 14 | | or other place of detention may
be overcome by a preponderance | 15 | | of the evidence
that
the statement was voluntarily given and is | 16 | | reliable, based on the totality of
the
circumstances.
| 17 | | (g) Any electronic recording of any statement made by a | 18 | | minor during a
custodial interrogation that is compiled by any | 19 | | law enforcement agency as
required by this Section for the | 20 | | purposes of fulfilling the requirements of
this
Section shall | 21 | | be confidential and exempt from public inspection and copying, | 22 | | as
provided under Section 7 of the Freedom of Information Act, | 23 | | and the information
shall not be transmitted to anyone except | 24 | | as needed to comply with this
Section.
| 25 | | (h) A statement, admission, confession, or incriminating | 26 | | information made by or obtained from a minor related to the |
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| 1 | | instant offense, as part of any behavioral health screening, | 2 | | assessment, evaluation, or treatment, whether or not | 3 | | court-ordered, shall not be admissible as evidence against the | 4 | | minor on the issue of guilt only in the instant juvenile court | 5 | | proceeding. The provisions of this subsection (h) are in | 6 | | addition to and do not override any existing statutory and | 7 | | constitutional prohibition on the admission into evidence in | 8 | | delinquency proceedings of information obtained during | 9 | | screening, assessment, or treatment. | 10 | | (i) The changes made to this Section by Public Act 98-61 | 11 | | apply to statements of a minor made on or after January 1, 2014 | 12 | | (the effective date of Public Act 98-61). | 13 | | (Source: P.A. 98-61, eff. 1-1-14; 98-547, eff. 1-1-14; 98-756, | 14 | | eff. 7-16-14; 99-882, eff. 1-1-17 .)
| 15 | | Section 10. The Code of Criminal Procedure of 1963 is | 16 | | amended by changing Section 103-2.1 as follows:
| 17 | | (725 ILCS 5/103-2.1)
| 18 | | Sec. 103-2.1. When statements by accused may be used.
| 19 | | (a) In this Section, "custodial interrogation" means any | 20 | | interrogation
during which (i) a reasonable person in the | 21 | | subject's position would consider
himself or herself to be in | 22 | | custody and (ii) during which
a question is asked that is | 23 | | reasonably likely to elicit an incriminating
response.
| 24 | | In this Section, "place of detention" means a building or a |
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| 1 | | police station
that is a place of operation for a municipal | 2 | | police department or county
sheriff department or other law | 3 | | enforcement agency, not a courthouse, that
is owned or operated | 4 | | by a
law enforcement agency at which persons are or may be held | 5 | | in detention in
connection with criminal charges against those | 6 | | persons.
| 7 | | In this Section, "electronic recording" includes motion | 8 | | picture,
audiotape, or videotape, or digital recording.
| 9 | | (a-5) An oral, written, or sign language statement of a | 10 | | minor, who at the time of the commission of the offense was | 11 | | under 18 years of age, is presumed to be inadmissible when the | 12 | | statement is obtained from the minor while the minor is subject | 13 | | to custodial interrogation by a law enforcement officer, | 14 | | State's Attorney, juvenile officer, or other public official or | 15 | | employee prior to the officer, State's Attorney, public | 16 | | official, or employee: | 17 | | (1) continuously reads to the minor, in its entirety | 18 | | and without stopping for purposes of a response from the | 19 | | minor or verifying comprehension, the following statement: | 20 | | "You have the right to remain silent. That means you do not | 21 | | have to say anything. Anything you do say can be used | 22 | | against you in court. You have the right to get help from a | 23 | | lawyer. If you cannot pay for a lawyer, the court will get | 24 | | you one for free. You can ask for a lawyer at any time. You | 25 | | have the right to stop this interview at any time."; and | 26 | | (2) after reading the statement required by paragraph |
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| 1 | | (1) of this subsection (a-5), the public official or | 2 | | employee shall ask the minor the following questions and | 3 | | wait for the minor's response to each question: | 4 | | (A) "Do you want to have a lawyer?" | 5 | | (B) "Do you want to talk to me?" | 6 | | (a-10) An oral, written, or sign language statement of a | 7 | | minor, who at the time of the commission of the offense was | 8 | | under 18 years of age, made as a result of a custodial | 9 | | interrogation conducted at a police station or other place of | 10 | | detention on or after the effective date of this amendatory Act | 11 | | of the 99th General Assembly shall be presumed to be | 12 | | inadmissible as evidence in a criminal proceeding or a juvenile | 13 | | court proceeding for an act that if committed by an adult would | 14 | | be a misdemeanor offense under Article 11 of the Criminal Code | 15 | | of 2012 or a felony offense under the Criminal Code of 2012 | 16 | | unless: | 17 | | (1) an electronic recording is made of the custodial | 18 | | interrogation; and | 19 | | (2) the recording is substantially accurate and not | 20 | | intentionally altered. | 21 | | (a-15) An oral, written, or sign language statement of a | 22 | | minor made without the presence of counsel during a custodial | 23 | | interrogation in violation of Section 5-170 of the Juvenile | 24 | | Court Act of 1987 on or after the effective date of this | 25 | | amendatory Act of the 101st General Assembly is inadmissible as | 26 | | evidence against the minor in a proceeding under the Juvenile |
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| 1 | | Court Act of 1987 or in a proceeding under the Criminal Code of | 2 | | 2012. | 3 | | (b) An oral, written, or sign language statement of an | 4 | | accused made as a
result of a
custodial
interrogation conducted | 5 | | at a police station or other place of detention shall be | 6 | | presumed
to be inadmissible as
evidence against the
accused in | 7 | | any
criminal
proceeding brought under Section 9-1, 9-1.2, 9-2, | 8 | | 9-2.1, 9-3, 9-3.2, or 9-3.3
of the Criminal Code of 1961 or the | 9 | | Criminal Code of 2012 or under clause (d)(1)(F) of Section | 10 | | 11-501 of the Illinois Vehicle Code
unless:
| 11 | | (1) an electronic recording
is made of the custodial | 12 | | interrogation; and
| 13 | | (2) the recording is substantially accurate and not | 14 | | intentionally altered.
| 15 | | (b-5) Under the following circumstances, an oral, written, | 16 | | or sign language statement of an accused made as a result of a | 17 | | custodial interrogation conducted at a police station or other | 18 | | place of detention shall be presumed to be inadmissible as | 19 | | evidence against the accused, unless an electronic recording is | 20 | | made of the custodial interrogation and the recording is | 21 | | substantially accurate and not intentionally altered: | 22 | | (1) in any criminal proceeding brought under Section | 23 | | 11-1.40 or 20-1.1 of the Criminal Code of 1961 or the | 24 | | Criminal Code of 2012, if the custodial interrogation was | 25 | | conducted on or after June 1, 2014; | 26 | | (2) in any criminal proceeding brought under Section |
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| 1 | | 10-2, 18-4, or 19-6 of the Criminal Code of 1961 or the | 2 | | Criminal Code of 2012, if the custodial interrogation was | 3 | | conducted on or after June 1, 2015; and | 4 | | (3) in any criminal proceeding brought under Section | 5 | | 11-1.30 or 18-2 or subsection (e) of Section 12-3.05 of the | 6 | | Criminal Code of 1961 or the Criminal Code of 2012, if the | 7 | | custodial interrogation was conducted on or after June 1, | 8 | | 2016. | 9 | | (b-10) If, during the course of an electronically recorded | 10 | | custodial interrogation conducted under this Section, the | 11 | | accused makes a statement that creates a reasonable suspicion | 12 | | to believe the accused has committed an offense other than an | 13 | | offense required to be recorded under subsection (b) or (b-5), | 14 | | the interrogators may, without the accused's consent, continue | 15 | | to record the interrogation as it relates to the other offense | 16 | | notwithstanding any provision of law to the contrary. Any oral, | 17 | | written, or sign language statement of an accused made as a | 18 | | result of an interrogation under this subsection shall be | 19 | | presumed to be inadmissible as evidence against the accused in | 20 | | any criminal proceeding, unless the recording is substantially | 21 | | accurate and not intentionally altered. | 22 | | (c) Every electronic recording made under this Section
must | 23 | | be preserved
until such time as the
defendant's conviction
for | 24 | | any
offense relating to the statement is final and all direct | 25 | | and habeas corpus
appeals are
exhausted,
or the prosecution of | 26 | | such offenses is barred by law.
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| 1 | | (d) If the court finds, by a preponderance of the evidence, | 2 | | that the
defendant
was
subjected to a custodial interrogation | 3 | | in violation of this Section, then any
statements made
by the
| 4 | | defendant during or following that non-recorded custodial | 5 | | interrogation, even
if
otherwise in compliance with this | 6 | | Section, are presumed to be inadmissible in
any criminal
| 7 | | proceeding against the defendant except for the purposes of | 8 | | impeachment.
| 9 | | (e) Nothing in this Section precludes the admission (i) of | 10 | | a statement made
by the
accused in open court at his or her | 11 | | trial, before a grand jury, or at
a preliminary hearing, (ii)
| 12 | | of a
statement made during a
custodial interrogation that was | 13 | | not recorded as required by
this
Section, because electronic | 14 | | recording was not feasible, (iii) of a
voluntary
statement,
| 15 | | whether or not the result of a custodial interrogation, that | 16 | | has a bearing on
the
credibility of the accused as a witness,
| 17 | | (iv) of a spontaneous statement that is
not made in response to | 18 | | a question,
(v) of a statement made after questioning that is | 19 | | routinely
asked during the processing of the arrest of the | 20 | | suspect, (vi) of a statement
made
during a custodial | 21 | | interrogation by a suspect who requests, prior to making the
| 22 | | statement, to respond to the
interrogator's questions only if
| 23 | | an electronic recording is not made of the statement, provided | 24 | | that an
electronic
recording is made of the statement of | 25 | | agreeing to respond to
the interrogator's question, only if a | 26 | | recording is not made of the statement,
(vii) of a
statement |
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| 1 | | made
during a custodial
interrogation that is conducted | 2 | | out-of-state, (viii)
of a statement
given in violation of | 3 | | subsection (b) at a time when the interrogators are unaware | 4 | | that a death has in fact
occurred, (ix) of a statement given in | 5 | | violation of subsection (b-5) at a time when the interrogators | 6 | | are unaware of facts and circumstances that would create | 7 | | probable cause to believe that the accused committed an offense | 8 | | required to be recorded under subsection (b-5), or (x) of any | 9 | | other
statement that may be
admissible under law. The State | 10 | | shall bear the burden of proving, by a
preponderance of the | 11 | | evidence, that one of the exceptions described in this
| 12 | | subsection (e) is
applicable.
Nothing in
this Section precludes | 13 | | the admission of a statement, otherwise inadmissible
under
this | 14 | | Section, that is used only for impeachment and not as | 15 | | substantive
evidence.
| 16 | | (f) The presumption of inadmissibility of a statement made | 17 | | by a suspect at
a custodial interrogation at a police station | 18 | | or other place of detention may
be overcome by a preponderance | 19 | | of the evidence
that
the statement was voluntarily given and is | 20 | | reliable, based on the totality of
the
circumstances.
| 21 | | (g) Any electronic recording of any statement made by an | 22 | | accused during a
custodial interrogation that is compiled by | 23 | | any law enforcement agency as
required by this Section for the | 24 | | purposes of fulfilling the requirements of
this
Section shall | 25 | | be confidential and exempt from public inspection and copying, | 26 | | as
provided under Section 7 of the Freedom of Information Act, |
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| 1 | | and the information
shall not be transmitted to anyone except | 2 | | as needed to comply with this
Section.
| 3 | | (Source: P.A. 98-547, eff. 1-1-14; 99-882, eff. 1-1-17 .)
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