HB2945ham001 98TH GENERAL ASSEMBLY

Rep. Scott Drury

Filed: 4/12/2013

09800HB2945ham001 LRB098 09205 MRW 44452 a

AMENDMENT TO HOUSE BILL 2945

AMENDMENT NO. ______. Amend House Bill 2945 by replacing everything after the enacting clause with the following:

"Section 5. The Juvenile Court Act of 1987 is amended by changing Section 5-401.5 as follows:

(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, "minor" means an individual who at the time of the commission of the offense was under the age of 18 years.

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) On or after the effective date of this amendatory Act of the 98th General Assembly, an electronic recording of a minor shall be made of all custodial interrogations conducted at a police station or other place of detention, where the offense if committed by an adult:

(1) could be charged 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; or

(2) could be charged as a Class 1 or Class X felony.

(b) For an act that if committed by an adult would be 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, an 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 on or after July 18, 2005 the effective date of this amendatory Act of the 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 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 electronic recording is substantially accurate and not intentionally altered.

(c) (Blank). Every electronic recording required 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 subsection (b) this Section, then any statements made by the minor during or following that non-recorded custodial interrogation, even if otherwise in compliance with subsection (b) this Section, are presumed to be inadmissible in any criminal proceeding or juvenile court proceeding against the minor except for the purposes of impeachment.

(d-1) The presumption of inadmissibility set forth in subsections (b) and (d) 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.

(d-2) A court shall consider compliance or noncompliance with the requirements of this Section in adjudicating a motion to suppress or any other motion to bar any statement for which an electronic recording was required to have been made under this Section.

(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 at a time when the interrogators are unaware that a death has in fact occurred, or the offense if committed by an adult could be charged as a Class 1 or Class X felony, or (ix) 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) (Blank). 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.

(f-1) Unless it has been established by a preponderance of the evidence that an exception listed in subsection (e) is applicable, if an unrecorded statement or an electronically recorded custodial interrogation that is not substantially accurate or has been intentionally altered is introduced into evidence where the statement was required to be electronically recorded under subsection (a-5), the court shall, upon the request of the defendant, provide the jury with cautionary instructions, which at a minimum shall include the following, with changes that are necessary for consistency with the evidence:

"The interview of the defendant by law enforcement officials which took place on (insert date) at (insert location) was not electronically recorded as required by our law. Because the interview was not electronically recorded, you have not been provided the most reliable evidence as to what was said and done by the participants. You were not able to hear the exact words used by the participants or the tone or inflection of their voices (nor were you able to see the actual interactions between the defendant and law enforcement officials).

Accordingly, as you go about determining what occurred during the interview, you should give special attention to whether you are satisfied that what was said and done has been accurately reported by the participants, including testimony as to statements attributed by law enforcement witnesses to the defendant."

(g) Every electronic recording required 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.

(g-1) 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.

(Source: P.A. 96-1251, eff. 1-1-11; 97-1150, eff. 1-25-13.)

Section 10. 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) On or after the effective date of this amendatory Act of the 98th General Assembly, an electronic recording shall be made of all custodial interrogations conducted at a police station or other place of detention, where the offense:

(1) could be charged 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; or

(2) could be charged as a Class 1 or Class X felony.

(b) 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, an An oral, written, or sign language statement of an accused made as a result of a custodial interrogation at a police station or other place of detention on or after July 18, 2005 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 electronic recording is substantially accurate and not intentionally altered.

(c) (Blank). Every electronic recording required 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 subsection (b) this Section, then any statements made by the defendant during or following that non-recorded custodial interrogation, even if otherwise in compliance with subsection (b) this Section, are presumed to be inadmissible in any criminal proceeding against the defendant except for the purposes of impeachment.

(d-1) The presumption of inadmissibility set forth in subsection (b) or (d) 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.

(d-2) A court shall consider compliance or noncompliance with the requirements of this Section in adjudicating a motion to suppress or any other motion to bar any statement for which an electronic recording was required to have been made under this Section.

(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 at a time when the interrogators are unaware that a death has in fact occurred, or the offense could be charged as a Class 1 or Class X felony, or (ix) 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) (Blank). 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.

(f-1) Unless it has been established by a preponderance of the evidence that an exception listed in subsection (e) is applicable, if an unrecorded statement or electronically recorded custodial interrogation that is not substantially accurate or has been intentionally altered is introduced into evidence where the statement was required to be electronically recorded under subsection (a-5), the court shall, upon the request of the defendant, provide the jury with cautionary instructions, which at a minimum shall include the following, with changes that are necessary for consistency with the evidence:

"The interview of the defendant by law enforcement officials which took place on (insert date) at (insert location) was not electronically recorded as required by our law. Because the interview was not electronically recorded, you have not been provided the most reliable evidence as to what was said and done by the participants. You were not able to hear the exact words used by the participants or the tone or inflection of their voices (nor were you able to see the actual interactions between the defendant and law enforcement officials).

Accordingly, as you go about determining what occurred during the interview, you should give special attention to whether you are satisfied that what was said and done has been accurately reported by the participants, including testimony as to statements attributed by law enforcement witnesses to the defendant."

(g) Every electronic recording required 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.

(h) 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.)".