Public Act 099-0882
 
SB2370 EnrolledLRB099 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.)