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91_HB4039ham002
LRB9111363RCpkam01
1 AMENDMENT TO HOUSE BILL 4039
2 AMENDMENT NO. . Amend House Bill 4039, AS AMENDED,
3 by replacing the title with the following:
4 "AN ACT in relation to interrogations."; and
5 by replacing everything after the enacting clause with the
6 following:
7 "Section 5. The Juvenile Court Act of 1987 is amended by
8 adding Section 5-401.5 as follows:
9 (705 ILCS 405/5-401.5 new)
10 Sec. 5-401.5. When statements by minor may be used.
11 (a) In this Section, a "written statement of a minor"
12 means a statement signed by the minor or a statement made by
13 the minor in his or her own handwriting or, if the minor is
14 unable to write, a statement bearing his or her mark, when
15 the mark has been witnessed by a person other than a peace
16 officer.
17 (b) No oral, written, or sign language statement of a
18 minor who, at the time of the commission of the offense, was
19 under the age of 17 years made as a result of a custodial
20 interrogation shall be admissible as evidence against the
21 minor in any proceeding under this Act in which the minor is
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1 alleged to be delinquent for an act that if committed by an
2 adult would be a non-probationable felony unless:
3 (1) the minor is represented by an attorney who is
4 present at all times during the custodial interrogation;
5 (2) an electronic video and audio recording is made
6 of the custodial interrogation;
7 (3) prior to the custodial interrogation but during
8 the recording, the minor is given the following warnings:
9 i. that the minor has the right to remain
10 silent and not make any statement at all, and that
11 any statement he or she makes may be used against
12 him or her at his or her trial;
13 ii. that any statement he or she makes may be
14 used as evidence against him or her in court;
15 iii. that he or she has the right to have an
16 attorney present to advise him or her prior to and
17 during any questioning;
18 iv. that if he or she is unable to employ an
19 attorney, he or she has the right to have an
20 attorney appointed to advise him or her prior to and
21 during any questioning; and
22 v. that he or she has the right to terminate
23 the interrogation at any time.
24 (4) prior to the statement but during the recording,
25 the minor knowingly, intelligently, and voluntarily
26 waives any rights described in paragraph (3);
27 (5) the recording device was capable of making an
28 accurate recording, the operator was competent, and the
29 recording is accurate and has not been altered;
30 (6) all voices on the recording are identified;
31 (7) not later than the 20th day before the date of
32 the proceeding, the attorney representing the minor is
33 provided with a true, complete, and accurate copy of all
34 recordings of the minor made under this Section.
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1 (c) In addition to the requirements of subsection (b) of
2 this Section, no written statement made by a minor as a
3 result of a custodial interrogation is admissible as evidence
4 against him or her in any proceeding under this Act unless it
5 is shown on the face of the statement that:
6 (1) the minor, prior to making the statement,
7 received from the person to whom the statement is made a
8 warning that:
9 (A) he or she has the right to remain silent
10 and not make any statement at all and that any
11 statement he or she makes may be used against him or
12 her in any proceeding under this Act;
13 (B) any statement he or she makes may be used
14 as evidence against him or her in court;
15 (C) he or she has the right to have an
16 attorney present to advise him or her prior to and
17 during any questioning;
18 (D) if he or she is unable to employ an
19 attorney, he or she has the right to have an
20 attorney appointed to advise the minor prior to and
21 during any questioning; and
22 (E) he or she has the right to terminate the
23 interrogation at any time.
24 (2) the minor, prior to and during the making of
25 the statement, knowingly, intelligently, and voluntarily
26 waived the rights set out in the warning prescribed by
27 item (1) of this subsection (c).
28 (d) Every electronic video and audio recording of any
29 statement made by a minor during a custodial interrogation
30 must be preserved until such time as the minor's adjudication
31 for any offense relating to the statement is final and all
32 direct and habeas corpus appeals are exhausted, or the
33 prosecution of such offenses is barred by law.
34 (e) If the minor is a deaf person, the minor's statements
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1 under subsection (b) of this Section are not admissible
2 against the minor unless the warnings in subsection (b) are
3 interpreted to the deaf person by an interpreter who is
4 qualified and sworn as provided by Illinois law.
5 (f) If the minor can prove, by a preponderance of the
6 evidence, that he or she was subjected to a custodial
7 interrogation prior to the custodial interrogation that was
8 the subject of the electronic video and audio recording, and
9 if that prior custodial interrogation was not recorded as
10 required by this Section, then any statements made by the
11 minor during or following that non-recorded custodial
12 interrogation, even if otherwise in compliance with this
13 Section, are inadmissible in any criminal proceeding against
14 the minor except for the purposes of impeachment.
15 (g) In all cases where a question is raised as to the
16 voluntariness of a statement of a minor, the court must make
17 an independent finding in the absence of the jury as to
18 whether the statement was made under voluntary conditions.
19 If the statement has been found to have been voluntarily made
20 and held admissible as a matter of law and fact by the court
21 in a hearing in the absence of the jury, the court must enter
22 an order stating its conclusion as to whether or not the
23 statement was voluntarily made, along with the specific
24 finding of facts upon which the conclusion was based, which
25 order shall be filed among the papers of the cause. The
26 order may not be exhibited to the jury nor the finding of the
27 order made known to the jury in any manner. Upon the finding
28 by the judge as a matter of law and fact that the statement
29 was voluntarily made, evidence pertaining to the matter may
30 be submitted to the jury and it shall be instructed that
31 unless a jury believes beyond a reasonable doubt that the
32 statement was voluntarily made, the jury may not consider the
33 statement for any purpose nor any evidence obtained as a
34 result of the statement. In any case in which a motion to
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1 suppress the statement has been filed and evidence has been
2 submitted to the court on this issue, the court within its
3 discretion may reconsider the evidence in its finding that
4 the statement was voluntarily made and the same evidence
5 submitted to the court at the hearing on the motion to
6 suppress shall be made a part of the record the same as if it
7 were being presented at the time of trial. However, the
8 State or the minor shall be entitled to present any new
9 evidence on the issue of the voluntariness of the statement
10 prior to the court's final ruling and order stating its
11 findings.
12 (h) Nothing in this Section precludes the admission (i)
13 of a statement made by the minor in open court in any
14 proceeding under this Act, before a grand jury, or at a
15 preliminary hearing, (ii) of a statement that is the res
16 gestae of the arrest or of the offense, (iii) of a statement
17 that does not stem from custodial interrogation, (iv) of a
18 statement made during a custodial interrogation that was not
19 electronically recorded as required by this Section, provided
20 that a court finds by clear and convincing evidence that
21 electronic recording of the minor's statements was not
22 feasible, (v) of a voluntary statement, whether or not the
23 result of custodial interrogation, that has a bearing on the
24 credibility of the accused as a witness, or (vi) of any other
25 statement that may be admissible under law. The State shall
26 bear the burden of proving, by a preponderance of the
27 evidence, that one of the exceptions described in this
28 subsection (h) is applicable, except that the State shall
29 bear the burden of proving by clear and convincing evidence
30 that the exception in subsection (iv) is applicable. Nothing
31 in this Section precludes the admission of a statement,
32 otherwise inadmissible under this Section, that is used only
33 for impeachment and not as substantive evidence.
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1 Section 10. The Criminal Code of 1961 is amended by
2 changing Section 14-3 as follows:
3 (720 ILCS 5/14-3) (from Ch. 38, par. 14-3)
4 Sec. 14-3. Exemptions. The following activities shall
5 be exempt from the provisions of this Article:
6 (a) Listening to radio, wireless and television
7 communications of any sort where the same are publicly made;
8 (b) Hearing conversation when heard by employees of any
9 common carrier by wire incidental to the normal course of
10 their employment in the operation, maintenance or repair of
11 the equipment of such common carrier by wire so long as no
12 information obtained thereby is used or divulged by the
13 hearer;
14 (c) Any broadcast by radio, television or otherwise
15 whether it be a broadcast or recorded for the purpose of
16 later broadcasts of any function where the public is in
17 attendance and the conversations are overheard incidental to
18 the main purpose for which such broadcasts are then being
19 made;
20 (d) Recording or listening with the aid of any device to
21 any emergency communication made in the normal course of
22 operations by any federal, state or local law enforcement
23 agency or institutions dealing in emergency services,
24 including, but not limited to, hospitals, clinics, ambulance
25 services, fire fighting agencies, any public utility,
26 emergency repair facility, civilian defense establishment or
27 military installation;
28 (e) Recording the proceedings of any meeting required to
29 be open by the Open Meetings Act, as amended;
30 (f) Recording or listening with the aid of any device to
31 incoming telephone calls of phone lines publicly listed or
32 advertised as consumer "hotlines" by manufacturers or
33 retailers of food and drug products. Such recordings must be
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1 destroyed, erased or turned over to local law enforcement
2 authorities within 24 hours from the time of such recording
3 and shall not be otherwise disseminated. Failure on the part
4 of the individual or business operating any such recording or
5 listening device to comply with the requirements of this
6 subsection shall eliminate any civil or criminal immunity
7 conferred upon that individual or business by the operation
8 of this Section;
9 (g) With prior notification to the State's Attorney of
10 the county in which it is to occur, recording or listening
11 with the aid of any device to any conversation where a law
12 enforcement officer, or any person acting at the direction of
13 law enforcement, is a party to the conversation and has
14 consented to it being intercepted or recorded under
15 circumstances where the use of the device is necessary for
16 the protection of the law enforcement officer or any person
17 acting at the direction of law enforcement, in the course of
18 an investigation of a forcible felony, a felony violation of
19 the Illinois Controlled Substances Act, a felony violation of
20 the Cannabis Control Act, or any "streetgang related" or
21 "gang-related" felony as those terms are defined in the
22 Illinois Streetgang Terrorism Omnibus Prevention Act. Any
23 recording or evidence derived as the result of this exemption
24 shall be inadmissible in any proceeding, criminal, civil or
25 administrative, except (i) where a party to the conversation
26 suffers great bodily injury or is killed during such
27 conversation, or (ii) when used as direct impeachment of a
28 witness concerning matters contained in the interception or
29 recording. The Director of the Department of State Police
30 shall issue regulations as are necessary concerning the use
31 of devices, retention of tape recordings, and reports
32 regarding their use;
33 (h) Recordings made simultaneously with a video
34 recording of an oral conversation between a peace officer,
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1 who has identified his or her office, and a person stopped
2 for an investigation of an offense under the Illinois Vehicle
3 Code;
4 (i) Recording of a conversation made by or at the
5 request of a person, not a law enforcement officer or agent
6 of a law enforcement officer, who is a party to the
7 conversation, under reasonable suspicion that another party
8 to the conversation is committing, is about to commit, or has
9 committed a criminal offense against the person or a member
10 of his or her immediate household, and there is reason to
11 believe that evidence of the criminal offense may be obtained
12 by the recording; and
13 (j) The use of a telephone monitoring device by either
14 (1) a corporation or other business entity engaged in
15 marketing or opinion research or (2) a corporation or other
16 business entity engaged in telephone solicitation, as defined
17 in this subsection, to record or listen to oral telephone
18 solicitation conversations or marketing or opinion research
19 conversations by an employee of the corporation or other
20 business entity when:
21 (i) the monitoring is used for the purpose of
22 service quality control of marketing or opinion research
23 or telephone solicitation, the education or training of
24 employees or contractors engaged in marketing or opinion
25 research or telephone solicitation, or internal research
26 related to marketing or opinion research or telephone
27 solicitation; and
28 (ii) the monitoring is used with the consent of at
29 least one person who is an active party to the marketing
30 or opinion research conversation or telephone
31 solicitation conversation being monitored.
32 No communication or conversation or any part, portion, or
33 aspect of the communication or conversation made, acquired,
34 or obtained, directly or indirectly, under this exemption
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1 (j), may be, directly or indirectly, furnished to any law
2 enforcement officer, agency, or official for any purpose or
3 used in any inquiry or investigation, or used, directly or
4 indirectly, in any administrative, judicial, or other
5 proceeding, or divulged to any third party.
6 When recording or listening authorized by this subsection
7 (j) on telephone lines used for marketing or opinion research
8 or telephone solicitation purposes results in recording or
9 listening to a conversation that does not relate to marketing
10 or opinion research or telephone solicitation; the person
11 recording or listening shall, immediately upon determining
12 that the conversation does not relate to marketing or opinion
13 research or telephone solicitation, terminate the recording
14 or listening and destroy any such recording as soon as is
15 practicable.
16 Business entities that use a telephone monitoring or
17 telephone recording system pursuant to this exemption (j)
18 shall provide current and prospective employees with notice
19 that the monitoring or recordings may occur during the course
20 of their employment. The notice shall include prominent
21 signage notification within the workplace.
22 Business entities that use a telephone monitoring or
23 telephone recording system pursuant to this exemption (j)
24 shall provide their employees or agents with access to
25 personal-only telephone lines which may be pay telephones,
26 that are not subject to telephone monitoring or telephone
27 recording.
28 For the purposes of this subsection (j), "telephone
29 solicitation" means a communication through the use of a
30 telephone by live operators:
31 (i) soliciting the sale of goods or services;
32 (ii) receiving orders for the sale of goods or
33 services;
34 (iii) assisting in the use of goods or services; or
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1 (iv) engaging in the solicitation, administration,
2 or collection of bank or retail credit accounts.
3 For the purposes of this subsection (j), "marketing or
4 opinion research" means a marketing or opinion research
5 interview conducted by a live telephone interviewer engaged
6 by a corporation or other business entity whose principal
7 business is the design, conduct, and analysis of polls and
8 surveys measuring the opinions, attitudes, and responses of
9 respondents toward products and services, or social or
10 political issues, or both.
11 (k) Electronic recordings, including but not limited to,
12 motion picture, videotape, or other visual and audio
13 recording, made of a custodial interrogation of an individual
14 by a law enforcement officer under Section 5-401.5 of the
15 Juvenile Court Act of 1987 or Section 103-2.1 of the Code of
16 Criminal Procedure of 1963.
17 (Source: P.A. 91-357, eff. 7-29-99.)
18 Section 15. The Code of Criminal Procedure of 1963 is
19 amended by adding Section 103-2.1 and Article 106F as
20 follows:
21 (725 ILCS 5/103-2.1 new)
22 Sec. 103-2.1. When statements by accused may be used.
23 (a) In this Section, a "written statement of an accused"
24 means a statement signed by the accused or a statement made
25 by the accused in his or her own handwriting or, if the
26 accused is unable to write, a statement bearing his or her
27 mark, when the mark has been witnessed by a person other than
28 a peace officer.
29 (b) No oral, written, or sign language statement of an
30 accused made as a result of a custodial interrogation shall
31 be admissible as evidence against the accused in any criminal
32 proceeding brought under Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3,
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1 9-3.2, 9-3.3, 12-13, 12-14, 12-14.1, 12-15, or 12-16 of the
2 Criminal Code of 1961, unless:
3 (1) an electronic video and audio recording is made
4 of the custodial interrogation;
5 (2) prior to the custodial interrogation but during
6 the recording the accused is given the following
7 warnings:
8 (i) that the accused has the right to remain
9 silent and not make any statement at all, and that
10 any statement the accused makes may be used against
11 the accused at his or her trial;
12 (ii) that any statement the accused makes may
13 be used as evidence against the accused in court;
14 (iii) that the accused has the right to have an
15 attorney present to advise him or her prior to and
16 during any questioning;
17 (iv) that if the accused is unable to employ an
18 attorney, he or she has the right to have an
19 attorney appointed to advise him or her prior to and
20 during any questioning; and
21 (v) that he or she has the right to terminate
22 the interrogation at any time.
23 (3) prior to the statement but during the recording,
24 the accused knowingly, intelligently, and voluntarily
25 waives the rights described in paragraph (2);
26 (4) the recording device was capable of making an
27 accurate recording, the operator was competent, and the
28 recording is accurate and has not been altered;
29 (5) all voices on the recording are identified;
30 (6) not later than the 20th day before the date of
31 the proceeding, the attorney representing the defendant
32 is provided with a true, complete, and accurate copy of
33 all recordings of the defendant made under this Section.
34 (c) In addition to the requirements of subsection (b) of
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1 this Section, no written statement made by an accused as a
2 result of a custodial interrogation is admissible as evidence
3 against his or her in any criminal proceeding unless it is
4 shown on the face of the statement that:
5 (1) the accused, prior to making the statement,
6 received from the person to whom the statement is made a
7 warning that:
8 (A) he or she has the right to remain silent
9 and not make any statement at all and that any
10 statement he or she makes may be used against him or
11 her at his or her trial;
12 (B) any statement he or she makes may be used
13 as evidence against him or her in court;
14 (C) He or she has the right to have an
15 attorney present to advise him or her prior to and
16 during any questioning;
17 (D) if he or she is unable to employ an
18 attorney, he or she has the right to have an
19 attorney appointed to advise him or her prior to and
20 during any questioning; and
21 (E) he or she has the right to terminate the
22 interrogation at any time.
23 (2) the accused, prior to and during the making of
24 the statement, knowingly, intelligently, and voluntarily
25 waived the rights set out in the warning prescribed by
26 item (1) of this subsection (c).
27 (d) Every electronic video and audio recording of any
28 statement made by an accused during a custodial interrogation
29 must be preserved until such time as the defendant's
30 conviction for any offense relating to the statement is final
31 and all direct and habeas corpus appeals are exhausted, or
32 the prosecution of such offenses is barred by law.
33 (e) If the accused is a deaf person, the accused's
34 statements under subsection (b) of this Section are not
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1 admissible against the accused unless the warnings in
2 subsection (b) are interpreted to the deaf person by an
3 interpreter who is qualified and sworn as provided by
4 Illinois law.
5 (f) If the defendant can prove, by a preponderance of the
6 evidence, that he or she was subjected to a custodial
7 interrogation prior to the custodial interrogation that was
8 the subject of the electronic video and audio recording, and
9 if that prior custodial interrogation was not recorded as
10 required by this Section, then any statements made by the
11 defendant during or following that non-recorded custodial
12 interrogation, even if otherwise in compliance with this
13 Section, are inadmissible in any criminal proceeding against
14 the defendant except for the purposes of impeachment.
15 (g) In all cases where a question is raised as to the
16 voluntariness of a statement of an accused, the court must
17 make an independent finding in the absence of the jury as to
18 whether the statement was made under voluntary conditions.
19 If the statement has been found to have been voluntarily made
20 and held admissible as a matter of law and fact by the court
21 in a hearing in the absence of the jury, the court must enter
22 an order stating its conclusion as to whether or not the
23 statement was voluntarily made, along with the specific
24 finding of facts upon which the conclusion was based, which
25 order shall be filed among the papers of the cause. The
26 order shall not be exhibited to the jury nor the finding of
27 the order made known to the jury in any manner. Upon the
28 finding by the judge as a matter of law and fact that the
29 statement was voluntarily made, evidence pertaining to the
30 matter may be submitted to the jury and it shall be
31 instructed that unless a jury believes beyond a reasonable
32 doubt that the statement was voluntarily made, the jury may
33 not consider the statement for any purpose nor any evidence
34 obtained as a result of the statement. In any case where a
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1 motion to suppress the statement has been filed and evidence
2 has been submitted to the court on this issue, the court
3 within its discretion may reconsider the evidence in its
4 finding that the statement was voluntarily made and the same
5 evidence submitted to the court at the hearing on the motion
6 to suppress shall be made a part of the record the same as if
7 it were being presented at the time of trial. However, the
8 State or the defendant shall be entitled to present any new
9 evidence on the issue of the voluntariness of the statement
10 prior to the court's final ruling and order stating its
11 findings.
12 (h) Nothing in this Section precludes the admission (i)
13 of a statement made by the accused in open court at his or
14 her trial, before a grand jury, or at a preliminary hearing,
15 (ii) of a statement that is the res gestae of the arrest or
16 of the offense, (iii) of a statement that does not stem from
17 custodial interrogation, (iv) of a statement made during a
18 custodial interrogation that was not electronically recorded
19 as required by this Section, provided that a court finds by
20 clear and convincing evidence that electronic recording of
21 the accused's statements was not feasible, (v) of a voluntary
22 statement, whether or not the result of custodial
23 interrogation, that has a bearing on the credibility of the
24 accused as a witness, or (vi) of any other statement that may
25 be admissible under law. The State shall bear the burden of
26 proving, by a preponderance of the evidence, that one of the
27 exceptions described in this subsection (h) is applicable,
28 except that the State shall bear the burden of proving by
29 clear and convincing evidence that the exception in clause
30 (iv) is applicable. Nothing in this Section precludes the
31 admission of a statement, otherwise inadmissible under this
32 Section, that is used only for impeachment and not as
33 substantive evidence.
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1 (725 ILCS 5/Art. 106F heading new)
2 ARTICLE 106F. VIDEOTAPE OF INTERROGATIONS
3 (725 ILCS 5/106F-5 new)
4 Sec. 106F-5. Videotape of interrogations of suspects.
5 (a) A peace officer who interrogates a person in a
6 police station who is suspected of committing a capital
7 offense must videotape the interrogation.
8 (b) The videotape is admissible in court in a
9 prosecution of the suspect for an offense if the suspect
10 confesses to the offense or otherwise makes an admission that
11 may be used in a prosecution of the suspect for the offense
12 and if the suspect recants his or her confession or
13 contradicts any admission made to a peace officer.
14 (c) The Department of State Police shall make grants
15 available to local law enforcement agencies, subject to a
16 separate appropriation, for the purpose of purchasing
17 videotape equipment.
18 Section 99. Effective date. This Act takes effect upon
19 becoming law.".