State of Illinois
92nd General Assembly
Legislation

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[ Introduced ][ Senate Amendment 001 ]


92_SB1050eng

 
SB1050 Engrossed                               LRB9201177RCcd

 1        AN ACT in relation to criminal law.

 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented in the General Assembly:

 4        Section 5.  The Code of Criminal  Procedure  of  1963  is
 5    amended  by changing Sections 114-13, 122-1, 122-2, and 122-3
 6    and by adding Section 122-6.1 as follows:

 7        (725 ILCS 5/114-13) (from Ch. 38, par. 114-13)
 8        Sec. 114-13.  Discovery in criminal cases.
 9        (a)  Discovery procedures in criminal cases shall  be  in
10    accordance with Supreme Court Rules.
11        (b)  Any  investigative, law enforcement, or other agency
12    responsible  for  investigating  any   felony   offense,   or
13    participating in an investigation of any felony offense shall
14    provide  to the authority prosecuting the offense all reports
15    that have been generated by or have come into the  possession
16    of  the  investigating  agency  concerning  the offense being
17    investigated.  In addition, the  investigating  agency  shall
18    provide   to   the  prosecuting  authority  any  material  or
19    information within its possession or control that would  tend
20    to  negate the guilt of the accused of the offense charged or
21    reduce  his  or  her  punishment  for  the  offense.    Every
22    investigative  and law enforcement agency in this State shall
23    adopt policies to ensure compliance with these provisions.
24    (Source: Laws 1963, p. 2836.)

25        (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
26        Sec. 122-1. Petition in the trial court.
27        (a)  Any  person  imprisoned  in  the  penitentiary   who
28    asserts  that in the proceedings which resulted in his or her
29    conviction there was a  substantial  denial  of  his  or  her
30    rights  under the Constitution of the United States or of the
 
SB1050 Engrossed            -2-                LRB9201177RCcd
 1    State of Illinois or both may institute  a  proceeding  under
 2    this  Article.    Under  the  Constitution  of  the  State of
 3    Illinois,  an  assertion  of  substantial  denial  of  rights
 4    pursuant to this Article includes, but is not limited to,  an
 5    independent   claim   of  actual  innocence  based  on  newly
 6    discovered evidence.
 7        (b)  The proceeding shall be commenced by filing with the
 8    clerk of the court in  which  the  conviction  took  place  a
 9    petition   (together   with   a  copy  thereof)  verified  by
10    affidavit.  Petitioner shall also serve another copy upon the
11    State's Attorney by any of the methods provided in Rule 7  of
12    the  Supreme  Court.  The clerk shall docket the petition for
13    consideration by the court pursuant to Section  122-2.1  upon
14    his or her receipt thereof and bring the same promptly to the
15    attention of the court.
16        (c)  A  proceeding  on  an  independent  claim  of actual
17    innocence  based  on  newly  discovered  evidence   must   be
18    commenced  within  6  months  after  the discovery of the new
19    evidence by the defendant. No other  proceedings  under  this
20    Article  shall  be  commenced  more  than  6 months after the
21    denial of a petition for leave  to appeal  or  the  date  for
22    filing  such a petition if none is filed or more than 45 days
23    after the defendant files his or her brief in the  appeal  of
24    the  sentence before the Illinois Supreme Court (or more than
25    45 days after the deadline for the filing of the  defendant's
26    brief  with  the Illinois Supreme Court if no brief is filed)
27    or 3 years from the date of conviction, whichever is  sooner,
28    unless  the  petitioner  alleges facts showing that the delay
29    was not due to his or her culpable negligence.
30        (d)  A person seeking relief by filing a  petition  under
31    this Section must specify in the petition or its heading that
32    it  is  filed  under  this  Section.   A trial court that has
33    received a petition complaining of a conviction  or  sentence
34    that  fails to specify in the petition or its heading that it
 
SB1050 Engrossed            -3-                LRB9201177RCcd
 1    is filed under this Section need not evaluate the petition to
 2    determine whether it could otherwise have stated some grounds
 3    for relief under this Article.
 4        (e)  A proceeding under this Article may not be commenced
 5    on behalf of a defendant who  has  been  sentenced  to  death
 6    without  the  written  consent  of  the defendant, unless the
 7    defendant, because of a  mental  or  physical  condition,  is
 8    incapable of asserting his or her own claim.
 9    (Source:  P.A.  89-284,  eff.  1-1-96;  89-609,  eff. 1-1-97;
10    89-684, eff. 6-1-97; 90-14, eff. 7-1-97.)

11        (725 ILCS 5/122-2) (from Ch. 38, par. 122-2)
12        Sec. 122-2.  Contents of petition.
13        The petition shall identify the proceeding in  which  the
14    petitioner  was  convicted, give the date of the rendition of
15    the final judgment complained of, and clearly set  forth  the
16    respects  in  which  petitioner's  constitutional rights were
17    violated.  If the petition asserts an  independent  claim  of
18    actual  innocence based on newly discovered evidence, it must
19    set forth the nature of the evidence  and  demonstrate  that:
20    (i)  the  new  evidence  was discovered since the defendant's
21    trial; and  (ii)   the  new  evidence  could  not  have  been
22    discovered  prior  to trial by the exercise of due diligence.
23    The petition shall have attached thereto affidavits, records,
24    or other evidence supporting its allegations or  shall  state
25    why  the  same  are not attached. The petition shall identify
26    any previous proceedings that the petitioner may  have  taken
27    to  secure relief from his conviction. Argument and citations
28    and discussion of  authorities  shall  be  omitted  from  the
29    petition.
30    (Source: Laws 1963, p. 2836.)

31        (725 ILCS 5/122-3) (from Ch. 38, par. 122-3)
32        Sec. 122-3.  Waiver of claims.
 
SB1050 Engrossed            -4-                LRB9201177RCcd
 1        Any  claim of substantial denial of constitutional rights
 2    not raised in the original or an amended petition is  waived.
 3    This  provision  shall  not  apply  to  independent claims of
 4    actual innocence based on newly discovered evidence.
 5    (Source: Laws 1963, p. 2836.)

 6        (725 ILCS 5/122-6.1 new)
 7        Sec. 122-6.1.  Actual innocence hearing.
 8        (a)  At  a  hearing  on  a  petition  that   asserts   an
 9    independent   claim   of  actual  innocence  based  on  newly
10    discovered evidence, the burden shall be on the defendant  to
11    prove  his  or  her  actual  innocence.  At no time in such a
12    hearing shall the defendant be entitled to a  presumption  of
13    innocence.  It shall be presumed that the verdict rendered at
14    the  trial  in which the defendant was convicted was correct,
15    and the burden shall  be  on  the  defendant  to  rebut  this
16    presumption.
17        (b)  The defendant, at an actual innocence hearing, shall
18    be required to prove his or her actual innocence by clear and
19    convincing evidence.
20        (c)  In an actual innocence hearing, the court shall make
21    a  determination  about  the reliability and admissibility of
22    the newly discovered evidence.  Only if the court finds  that
23    the evidence of the defendant's actual innocence is clear and
24    convincing  and  of such a conclusive character that it would
25    likely change the result of the defendant's trial  shall  the
26    court order a new trial for the defendant.

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