State of Illinois
92nd General Assembly
Legislation

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[ Introduced ][ Engrossed ][ Senate Amendment 001 ]


92_SB2023ham001

 










                                           LRB9215672RCcdam02

 1                    AMENDMENT TO SENATE BILL 2023

 2        AMENDMENT NO.     .  Amend Senate Bill 2023 by  replacing
 3    everything after the enacting clause with the following:

 4        "Section  5.   The  Code of Criminal Procedure of 1963 is
 5    amended by changing Sections 122-1, 122-2, and 122-3  and  by
 6    adding Sections 108-15 and 122-6.1 as follows:

 7        (725 ILCS 5/108-15 new)
 8        Sec.   108-15.  Evidence   log.  Any  investigative,  law
 9    enforcement, or other agency  responsible  for  investigating
10    any  felony  offense  or participating in an investigation of
11    any felony offense shall establish a log onto which shall  be
12    entered  a  schedule  of  all  evidence and reports, records,
13    memoranda, or other information, authored by that  agency  or
14    that  has  come  into  its  possession,  whether inculpatory,
15    exculpatory, or neutral.  The log shall further  specify  the
16    location  of  all  such information or physical evidence. The
17    log shall  be  provided  to  the  authority  prosecuting  the
18    offense.  The  investigating  agency shall, with specificity,
19    provide  to  the  prosecuting  authority  any   material   or
20    information  within its possession or control that would tend
21    to negate the guilt of the accused of the offense charged  or
22    reduce   his  or  her  punishment  for  the  offense.   Every
 
                            -2-            LRB9215672RCcdam02
 1    investigative and law enforcement agency in this State  shall
 2    adopt  policies  to  ensure compliance with these provisions.
 3    Intentional failure to comply with  the  provisions  of  this
 4    Section is a Class A misdemeanor.

 5        (725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
 6        Sec. 122-1. Petition in the trial court.
 7        (a)  Any   person  imprisoned  in  the  penitentiary  who
 8    asserts that in the proceedings which resulted in his or  her
 9    conviction  there  was  a  substantial  denial  of his or her
10    rights under the Constitution of the United States or of  the
11    State  of  Illinois  or both may institute a proceeding under
12    this Article.    Under  the  Constitution  of  the  State  of
13    Illinois,  an  assertion  of  substantial  denial  of  rights
14    pursuant  to this Article includes, but is not limited to, an
15    independent  claim  of  actual  innocence  based   on   newly
16    discovered evidence.
17        (b)  The proceeding shall be commenced by filing with the
18    clerk  of  the  court  in  which  the conviction took place a
19    petition  (together  with  a  copy   thereof)   verified   by
20    affidavit.  Petitioner shall also serve another copy upon the
21    State's  Attorney by any of the methods provided in Rule 7 of
22    the Supreme Court.  The clerk shall docket the  petition  for
23    consideration  by  the court pursuant to Section 122-2.1 upon
24    his or her receipt thereof and bring the same promptly to the
25    attention of the court.
26        (c)  A proceeding  on  an  independent  claim  of  actual
27    innocence based on newly discovered evidence may be commenced
28    at any time after the discovery of the new evidence. No other
29    proceedings under this Article shall be commenced more than 6
30    months after the denial of a petition for leave  to appeal or
31    the  date for filing such a petition if none is filed or more
32    than 45 days after the defendant files his or  her  brief  in
33    the  appeal of the sentence before the Illinois Supreme Court
 
                            -3-            LRB9215672RCcdam02
 1    (or more than 45 days after the deadline for  the  filing  of
 2    the  defendant's  brief with the Illinois Supreme Court if no
 3    brief is filed) or 3  years  from  the  date  of  conviction,
 4    whichever  is  sooner,  unless  the  petitioner alleges facts
 5    showing that the delay was not due to  his  or  her  culpable
 6    negligence.
 7        (d)  A  person  seeking relief by filing a petition under
 8    this Section must specify in the petition or its heading that
 9    it is filed under this Section.    A  trial  court  that  has
10    received  a  petition complaining of a conviction or sentence
11    that fails to specify in the petition or its heading that  it
12    is filed under this Section need not evaluate the petition to
13    determine whether it could otherwise have stated some grounds
14    for relief under this Article.
15        (e)  A proceeding under this Article may not be commenced
16    on  behalf  of  a  defendant  who has been sentenced to death
17    without the written consent  of  the  defendant,  unless  the
18    defendant,  because  of  a  mental  or physical condition, is
19    incapable of asserting his or her own claim.
20    (Source: P.A.  89-284,  eff.  1-1-96;  89-609,  eff.  1-1-97;
21    89-684, eff. 6-1-97; 90-14, eff. 7-1-97.)

22        (725 ILCS 5/122-2) (from Ch. 38, par. 122-2)
23        Sec. 122-2.  Contents of petition.
24        The  petition  shall identify the proceeding in which the
25    petitioner was convicted, give the date of the  rendition  of
26    the  final  judgment complained of, and clearly set forth the
27    respects in which  petitioner's  constitutional  rights  were
28    violated.    If  the petition asserts an independent claim of
29    actual innocence based on newly discovered evidence, it  must
30    set  forth  the  nature of the evidence and demonstrate that:
31    (i) the new evidence was  discovered  since  the  defendant's
32    trial;  and  (ii)   the  new  evidence  could  not  have been
33    discovered prior to trial by the exercise of  due  diligence.
 
                            -4-            LRB9215672RCcdam02
 1    The petition shall have attached thereto affidavits, records,
 2    or  other  evidence supporting its allegations or shall state
 3    why the same are not attached. The  petition  shall  identify
 4    any  previous  proceedings that the petitioner may have taken
 5    to secure relief from his conviction. Argument and  citations
 6    and  discussion  of  authorities  shall  be  omitted from the
 7    petition.
 8    (Source: Laws 1963, p. 2836.)

 9        (725 ILCS 5/122-3) (from Ch. 38, par. 122-3)
10        Sec. 122-3.  Waiver of claims.
11        Any claim of substantial denial of constitutional  rights
12    not  raised in the original or an amended petition is waived.
13    This provision does not apply to independent claims of actual
14    innocence based on newly discovered evidence.
15    (Source: Laws 1963, p. 2836.)

16        (725 ILCS 5/122-6.1 new)
17        Sec. 122-6.1.  Actual innocence hearing.
18        (a)  At  a  hearing  on  a  petition  that   asserts   an
19    independent   claim   of  actual  innocence  based  on  newly
20    discovered evidence, the burden is on the defendant to  prove
21    his  or  her  actual innocence.  At no time in such a hearing
22    shall  the  defendant  be  entitled  to  a   presumption   of
23    innocence.   It  is presumed that the verdict rendered at the
24    trial in which the defendant was convicted was  correct,  and
25    the burden is on the defendant to rebut this presumption.
26        (b)  The  defendant, at an actual innocence hearing, must
27    show  evidence  of  such  a  conclusive  character  as  would
28    probably change the result on retrial.
29        (c)  In an actual innocence hearing, the court shall make
30    a determination about the reliability  and  admissibility  of
31    the  newly discovered evidence.  Only if the court finds that
32    the evidence of the defendant's actual innocence is of such a
 
                            -5-            LRB9215672RCcdam02
 1    conclusive character that it would likely change  the  result
 2    of  the  defendant's  trial shall the court order a new trial
 3    for the defendant.".

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