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Public Act 099-0882 Public Act 0882 99TH GENERAL ASSEMBLY |
Public Act 099-0882 | SB2370 Enrolled | LRB099 18370 SLF 44404 b |
|
| AN ACT concerning criminal law.
| Be it enacted by the People of the State of Illinois,
| represented in the General Assembly:
| Section 5. The Counties Code is amended by changing Section | 3-4006 as follows:
| (55 ILCS 5/3-4006) (from Ch. 34, par. 3-4006)
| Sec. 3-4006. Duties of public defender. The Public | Defender, as
directed by the court, shall act as attorney, | without fee, before any court
within any county for all persons | who are held in custody or who are
charged with the commission | of any criminal offense, and who the court
finds are unable to | employ counsel.
| The Public Defender shall be the attorney, without fee, | when so appointed
by the court under Section 1-20 of the | Juvenile Court Act or Section 1-5 of
the Juvenile Court Act of | 1987 or by any court under Section 5(b) of the
Parental Notice | of Abortion Act of 1983 for any party who the court finds
is | financially unable to employ counsel.
| In cases subject to Section 5-170 of the Juvenile Court Act | of 1987 involving a minor who was under 15 years of age at the | time of the commission of the offense, that occurs in a county | with a full-time public defender office, a public defender, | without fee or appointment, may represent and have access to a |
| minor during a custodial interrogation. In cases subject to | Section 5-170 of the Juvenile Court Act of 1987 involving a | minor who was under 15 years of age at the time of the | commission of the offense, that occurs in a county without a | full-time public defender, the law enforcement agency | conducting the custodial interrogation shall ensure that the | minor is able to consult with an attorney who is under contract | with the county to provide public defender services. | Representation by the public defender shall terminate at the | first court appearance if the court determines that the minor | is not indigent. | Every court shall, with the consent of the defendant and | where the court
finds that the rights of the defendant would be | prejudiced by the
appointment of the public defender, appoint | counsel other than the public
defender, except as otherwise | provided in Section 113-3 of the
"Code of Criminal Procedure of | 1963". That counsel shall be compensated
as is provided by law. | He shall also, in the case of the conviction of
any such | person, prosecute any proceeding in review which in his
| judgment the interests of justice require.
| (Source: P.A. 86-962.)
| Section 10. The Juvenile Court Act of 1987 is amended by | changing Sections 5-170 and 5-401.5 as follows:
| (705 ILCS 405/5-170)
|
| Sec. 5-170. Representation by counsel.
| (a) In a proceeding
under this Article, a minor who was | under 15 13 years of age at the time of the
commission of an act | that if committed by an adult would be a violation of
Section | 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, 9-3.3, 11-1.20, 11-1.30, | 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 12-14.1,
12-15, or | 12-16 of the Criminal Code of 1961 or the Criminal Code of 2012 | must be represented by counsel throughout
during the entire | custodial interrogation of the minor. | (b) In a judicial proceeding
under this Article, a minor | may not waive the right to the assistance of counsel in his or | her defense.
| (Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
| (705 ILCS 405/5-401.5)
| Sec. 5-401.5. When statements by minor may be used.
| (a) In this Section, "custodial interrogation" means any | interrogation
(i) during which a reasonable person in the | subject's position
would consider himself or herself to be in | custody and (ii) during which
a
question is asked that is | reasonably likely to elicit an incriminating
response.
| In this Section, "electronic recording" includes motion | picture,
audiotape, videotape, or digital recording.
| In this Section, "place of detention" means a building
or a | police station that is a place of operation for a municipal | police
department or county sheriff department or other law |
| enforcement agency
at which persons are or may be held in | detention in
connection with criminal charges against those | persons or allegations that
those
persons are delinquent | minors.
| (a-5) An oral, written, or sign language statement of a | minor, who at the time of the commission of the offense was | under 18 years of age, is presumed to be inadmissible when the | statement is obtained from the minor while the minor is subject | to custodial interrogation by a law enforcement officer, | State's Attorney, juvenile officer, or other public official or | employee prior to the officer, State's Attorney, public | official, or employee: | (1) continuously reads to the minor, in its entirety | and without stopping for purposes of a response from the | minor or verifying comprehension, the following statement: | "You have the right to remain silent. That means you do not | have to say anything. Anything you do say can be used | against you in court. You have the right to get help from a | lawyer. If you cannot pay for a lawyer, the court will get | you one for free. You can ask for a lawyer at any time. You | have the right to stop this interview at any time."; and | (2) after reading the statement required by paragraph | (1) of this subsection (a-5), the public official or | employee shall ask the minor the following questions and | wait for the minor's response to each question: | (A) "Do you want to have a lawyer?" |
| (B) "Do you want to talk to me?" | (b) An oral, written, or sign language statement of a minor | who, at the time
of the
commission of the offense was under the | age of 18
years, made as a
result of a custodial interrogation | conducted at a police station or other
place of detention on or | after
the effective date of
this amendatory Act of the 99th | 93rd General Assembly shall be presumed to be
inadmissible as | evidence against the
minor in
any criminal proceeding or | juvenile court proceeding,
for an act that if committed by an | adult would be
a misdemeanor offense under Article 11 of the | Criminal Code of 2012 or any felony offense brought under | Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, or 9-3.3,
of the | Criminal Code of 1961 or the Criminal Code of 2012,
or under | clause (d)(1)(F) of Section 11-501 of the Illinois Vehicle Code
| unless:
| (1) an electronic recording
is made of the custodial | interrogation; and
| (2) the recording is substantially accurate and not | intentionally altered.
| (b-5) (Blank). Under the following circumstances, an oral, | written, or sign language statement of a minor who, at the time
| of the
commission of the offense was under the age of 17
years, | made as a result of a custodial interrogation conducted at a | police station or other place of detention shall be presumed to | be inadmissible as evidence against the minor, unless an | electronic recording is made of the custodial interrogation and |
| the recording is substantially accurate and not intentionally | altered: | (1) in any criminal proceeding or juvenile court | proceeding, for an act that if committed by an adult would | be brought under Section 11-1.40 or 20-1.1 of the Criminal | Code of 1961 or the Criminal Code of 2012, if the custodial | interrogation was conducted on or after June 1, 2014; | (2) in any criminal proceeding or juvenile court | proceeding, for an act that if committed by an adult would | be brought under Section 10-2, 18-4, or 19-6 of the | Criminal Code of 1961 or the Criminal Code of 2012, if the | custodial interrogation was conducted on or after June 1, | 2015; and | (3) in any criminal proceeding or juvenile court | proceeding, for an act that if committed by an adult would | be brought under Section 11-1.30 or 18-2 or subsection (e) | of Section 12-3.05 of the Criminal Code of 1961 or the | Criminal Code of 2012, if the custodial interrogation was | conducted on or after June 1, 2016. | (b-10) If, during the course of an electronically recorded | custodial interrogation conducted under this Section of a minor | who, at the time
of the
commission of the offense was under the | age of 18 17
years, the minor makes a statement that creates a | reasonable suspicion to believe the minor has committed an act | that if committed by an adult would be an offense other than an | offense required to be recorded under subsection (b) or (b-5) , |
| the interrogators may, without the minor's consent, continue to | record the interrogation as it relates to the other offense | notwithstanding any provision of law to the contrary. Any oral, | written, or sign language statement of a minor made as a result | of an interrogation under this subsection shall be presumed to | be inadmissible as evidence against the minor in any criminal | proceeding or juvenile court proceeding, unless the recording | is substantially accurate and not intentionally altered. | (c) Every electronic recording made under this Section
must | be preserved
until such time as the
minor's adjudication
for | any
offense relating to the statement is final and all direct | and habeas corpus
appeals are
exhausted,
or the prosecution of | such offenses is barred by law.
| (d) If the court finds, by a preponderance of the evidence, | that the
minor
was
subjected to a custodial interrogation in | violation of this Section,
then any statements made
by the
| minor during or following that non-recorded custodial | interrogation, even
if
otherwise in compliance with this | Section, are presumed to be inadmissible in
any criminal
| proceeding or juvenile court proceeding against the minor | except for the
purposes of impeachment.
| (e) Nothing in this Section precludes the admission (i) of | a statement made
by the
minor in open court in any criminal | proceeding or juvenile court proceeding,
before a grand jury, | or
at a
preliminary hearing,
(ii) of a
statement made during a
| custodial interrogation that was not recorded as required by
|
| this
Section because electronic recording was not feasible, | (iii) of a
voluntary
statement,
whether or not the result of a | custodial interrogation, that has a bearing on
the
credibility | of the accused as a witness, (iv)
of a spontaneous statement
| that is not made in response to a question,
(v) of a statement | made after questioning that is routinely
asked during the | processing of the arrest of the suspect, (vi) of a statement
| made during a custodial interrogation by a suspect who | requests, prior to
making
the statement, to respond to the
| interrogator's questions only if
an electronic recording is not | made of the statement, provided that an
electronic
recording is | made of the statement of agreeing to respond to
the | interrogator's question, only if a recording is not made of the | statement,
(vii)
of a statement made
during a custodial
| interrogation that is conducted out-of-state,
(viii)
of a
| statement given in violation of subsection (b) at a time when | the interrogators are unaware that a death
has in fact | occurred, (ix) (blank) of a statement given in violation of | subsection (b-5) at a time when the interrogators are unaware | of facts and circumstances that would create probable cause to | believe that the minor committed an act that if committed by an | adult would be an offense required to be recorded under | subsection (b-5) , or (x) of any
other statement that may be | admissible under law. The State shall bear the
burden of | proving, by a preponderance of the evidence, that one of the
| exceptions described in this subsection (e) is applicable. |
| Nothing in this
Section precludes the admission of a statement, | otherwise inadmissible under
this Section, that is used only | for impeachment and not as substantive
evidence.
| (f) The presumption of inadmissibility of a statement made | by a suspect at
a custodial interrogation at a police station | or other place of detention may
be overcome by a preponderance | of the evidence
that
the statement was voluntarily given and is | reliable, based on the totality of
the
circumstances.
| (g) Any electronic recording of any statement made by a | minor during a
custodial interrogation that is compiled by any | law enforcement agency as
required by this Section for the | purposes of fulfilling the requirements of
this
Section shall | be confidential and exempt from public inspection and copying, | as
provided under Section 7 of the Freedom of Information Act, | and the information
shall not be transmitted to anyone except | as needed to comply with this
Section.
| (h) A statement, admission, confession, or incriminating | information made by or obtained from a minor related to the | instant offense, as part of any behavioral health screening, | assessment, evaluation, or treatment, whether or not | court-ordered, shall not be admissible as evidence against the | minor on the issue of guilt only in the instant juvenile court | proceeding. The provisions of this subsection (h) are in | addition to and do not override any existing statutory and | constitutional prohibition on the admission into evidence in | delinquency proceedings of information obtained during |
| screening, assessment, or treatment. | (i) The changes made to this Section by Public Act 98-61 | apply to statements of a minor made on or after January 1, 2014 | (the effective date of Public Act 98-61). | (Source: P.A. 97-1150, eff. 1-25-13; 98-61, eff. 1-1-14; | 98-547, eff. 1-1-14; 98-756, eff. 7-16-14.)
| Section 15. The Code of Criminal Procedure of 1963 is | amended by changing Section 103-2.1 as follows:
| (725 ILCS 5/103-2.1)
| Sec. 103-2.1. When statements by accused may be used.
| (a) In this Section, "custodial interrogation" means any | interrogation
during which (i) a reasonable person in the | subject's position would consider
himself or herself to be in | custody and (ii) during which
a question is asked that is | reasonably likely to elicit an incriminating
response.
| In this Section, "place of detention" means a building or a | police station
that is a place of operation for a municipal | police department or county
sheriff department or other law | enforcement agency, not a courthouse, that
is owned or operated | by a
law enforcement agency at which persons are or may be held | in detention in
connection with criminal charges against those | persons.
| In this Section, "electronic recording" includes motion | picture,
audiotape, or videotape, or digital recording.
|
| (a-5) An oral, written, or sign language statement of a | minor, who at the time of the commission of the offense was | under 18 years of age, is presumed to be inadmissible when the | statement is obtained from the minor while the minor is subject | to custodial interrogation by a law enforcement officer, | State's Attorney, juvenile officer, or other public official or | employee prior to the officer, State's Attorney, public | official, or employee: | (1) continuously reads to the minor, in its entirety | and without stopping for purposes of a response from the | minor or verifying comprehension, the following statement: | "You have the right to remain silent. That means you do not | have to say anything. Anything you do say can be used | against you in court. You have the right to get help from a | lawyer. If you cannot pay for a lawyer, the court will get | you one for free. You can ask for a lawyer at any time. You | have the right to stop this interview at any time."; and | (2) after reading the statement required by paragraph | (1) of this subsection (a-5), the public official or | employee shall ask the minor the following questions and | wait for the minor's response to each question: | (A) "Do you want to have a lawyer?" | (B) "Do you want to talk to me?" | (a-10) An oral, written, or sign language statement of a | minor, who at the time of the commission of the offense was | under 18 years of age, made as a result of a custodial |
| interrogation conducted at a police station or other place of | detention on or after the effective date of this amendatory Act | of the 99th General Assembly shall be presumed to be | inadmissible as evidence in a criminal proceeding or a juvenile | court proceeding for an act that if committed by an adult would | be a misdemeanor offense under Article 11 of the Criminal Code | of 2012 or a felony offense under the Criminal Code of 2012 | unless: | (1) an electronic recording is made of the custodial | interrogation; and | (2) the recording is substantially accurate and not | intentionally altered. | (b) An oral, written, or sign language statement of an | accused made as a
result of a
custodial
interrogation conducted | at a police station or other place of detention shall be | presumed
to be inadmissible as
evidence against the
accused in | any
criminal
proceeding brought under Section 9-1, 9-1.2, 9-2, | 9-2.1, 9-3, 9-3.2, or 9-3.3
of the Criminal Code of 1961 or the | Criminal Code of 2012 or under clause (d)(1)(F) of Section | 11-501 of the Illinois Vehicle Code
unless:
| (1) an electronic recording
is made of the custodial | interrogation; and
| (2) the recording is substantially accurate and not | intentionally altered.
| (b-5) Under the following circumstances, an oral, written, | or sign language statement of an accused made as a result of a |
| custodial interrogation conducted at a police station or other | place of detention shall be presumed to be inadmissible as | evidence against the accused, unless an electronic recording is | made of the custodial interrogation and the recording is | substantially accurate and not intentionally altered: | (1) in any criminal proceeding brought under Section | 11-1.40 or 20-1.1 of the Criminal Code of 1961 or the | Criminal Code of 2012, if the custodial interrogation was | conducted on or after June 1, 2014; | (2) in any criminal proceeding brought under Section | 10-2, 18-4, or 19-6 of the Criminal Code of 1961 or the | Criminal Code of 2012, if the custodial interrogation was | conducted on or after June 1, 2015; and | (3) in any criminal proceeding brought under Section | 11-1.30 or 18-2 or subsection (e) of Section 12-3.05 of the | Criminal Code of 1961 or the Criminal Code of 2012, if the | custodial interrogation was conducted on or after June 1, | 2016. | (b-10) If, during the course of an electronically recorded | custodial interrogation conducted under this Section, the | accused makes a statement that creates a reasonable suspicion | to believe the accused has committed an offense other than an | offense required to be recorded under subsection (b) or (b-5), | the interrogators may, without the accused's consent, continue | to record the interrogation as it relates to the other offense | notwithstanding any provision of law to the contrary. Any oral, |
| written, or sign language statement of an accused made as a | result of an interrogation under this subsection shall be | presumed to be inadmissible as evidence against the accused in | any criminal proceeding, unless the recording is substantially | accurate and not intentionally altered. | (c) Every electronic recording made under this Section
must | be preserved
until such time as the
defendant's conviction
for | any
offense relating to the statement is final and all direct | and habeas corpus
appeals are
exhausted,
or the prosecution of | such offenses is barred by law.
| (d) If the court finds, by a preponderance of the evidence, | that the
defendant
was
subjected to a custodial interrogation | in violation of this Section, then any
statements made
by the
| defendant during or following that non-recorded custodial | interrogation, even
if
otherwise in compliance with this | Section, are presumed to be inadmissible in
any criminal
| proceeding against the defendant except for the purposes of | impeachment.
| (e) Nothing in this Section precludes the admission (i) of | a statement made
by the
accused in open court at his or her | trial, before a grand jury, or at
a preliminary hearing, (ii)
| of a
statement made during a
custodial interrogation that was | not recorded as required by
this
Section, because electronic | recording was not feasible, (iii) of a
voluntary
statement,
| whether or not the result of a custodial interrogation, that | has a bearing on
the
credibility of the accused as a witness,
|
| (iv) of a spontaneous statement that is
not made in response to | a question,
(v) of a statement made after questioning that is | routinely
asked during the processing of the arrest of the | suspect, (vi) of a statement
made
during a custodial | interrogation by a suspect who requests, prior to making the
| statement, to respond to the
interrogator's questions only if
| an electronic recording is not made of the statement, provided | that an
electronic
recording is made of the statement of | agreeing to respond to
the interrogator's question, only if a | recording is not made of the statement,
(vii) of a
statement | made
during a custodial
interrogation that is conducted | out-of-state, (viii)
of a statement
given in violation of | subsection (b) at a time when the interrogators are unaware | that a death has in fact
occurred, (ix) of a statement given in | violation of subsection (b-5) at a time when the interrogators | are unaware of facts and circumstances that would create | probable cause to believe that the accused committed an offense | required to be recorded under subsection (b-5), or (x) of any | other
statement that may be
admissible under law. The State | shall bear the burden of proving, by a
preponderance of the | evidence, that one of the exceptions described in this
| subsection (e) is
applicable.
Nothing in
this Section precludes | the admission of a statement, otherwise inadmissible
under
this | Section, that is used only for impeachment and not as | substantive
evidence.
| (f) The presumption of inadmissibility of a statement made |
| by a suspect at
a custodial interrogation at a police station | or other place of detention may
be overcome by a preponderance | of the evidence
that
the statement was voluntarily given and is | reliable, based on the totality of
the
circumstances.
| (g) Any electronic recording of any statement made by an | accused during a
custodial interrogation that is compiled by | any law enforcement agency as
required by this Section for the | purposes of fulfilling the requirements of
this
Section shall | be confidential and exempt from public inspection and copying, | as
provided under Section 7 of the Freedom of Information Act, | and the information
shall not be transmitted to anyone except | as needed to comply with this
Section.
| (Source: P.A. 97-1150, eff. 1-25-13; 98-547, eff. 1-1-14.)
|
Effective Date: 1/1/2017
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