103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB3321

 

Introduced 2/7/2024, by Sen. Robert Peters

 

SYNOPSIS AS INTRODUCED:
 
55 ILCS 5/3-4006  from Ch. 34, par. 3-4006
705 ILCS 405/5-170
705 ILCS 405/5-401.5

    Amends the Juvenile Court Act of 1987. Provides that in a proceeding under the Delinquent Minors Article of the Act, a minor who was under 18 (rather than under 15) years of age at the time of the commission of an act that if committed by an adult would be a violation of any offense under the Criminal Code of 1961 or the Criminal Code of 2012 (rather than a homicide offense or criminal sexual assault, aggravated criminal sexual assault, predatory criminal sexual assault of a child, criminal sexual abuse, or aggravated criminal sexual abuse) must be represented by counsel throughout the entire custodial interrogation of the minor. Provides that in custodial interrogations, a minor may not waive the right to the assistance of counsel. Provides that 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 ensuring that the minor is represented by counsel throughout the custodial interrogation. Provides that an oral, written, or sign language statement of a minor made without counsel present throughout the entire custodial interrogation of the minor shall be inadmissible as evidence against the minor in any juvenile court proceeding or criminal proceeding. Deletes provision that 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. Amends the Counties Code to make conforming changes.


LRB103 36293 RLC 69381 b

 

 

A BILL FOR

 

SB3321LRB103 36293 RLC 69381 b

1    AN ACT concerning courts.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Counties Code is amended by changing
5Section 3-4006 as follows:
 
6    (55 ILCS 5/3-4006)  (from Ch. 34, par. 3-4006)
7    Sec. 3-4006. Duties of public defender. The Public
8Defender, as directed by the court, shall act as attorney,
9without fee, before any court within any county for all
10persons who are held in custody or who are charged with the
11commission of any criminal offense, and who the court finds
12are unable to employ counsel.
13    The Public Defender shall be the attorney, without fee,
14when so appointed by the court under Section 1-5 of the
15Juvenile Court Act of 1987.
16    In cases subject to Section 5-170 of the Juvenile Court
17Act of 1987 or subsection (a-5) of Section 103-2.1 of the Code
18of Criminal Procedure of 1963 involving a minor who was under
1918 15 years of age at the time of the commission of the
20offense, that occurs in a county with a full-time public
21defender office, a public defender, without fee or
22appointment, may represent and have access to a minor during a
23custodial interrogation. In cases subject to Section 5-170 of

 

 

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1the Juvenile Court Act of 1987 or subsection (a-5) of Section
2103-2.1 of the Code of Criminal Procedure of 1963 involving a
3minor who was under 18 15 years of age at the time of the
4commission of the offense, that occurs in a county without a
5full-time public defender, the law enforcement agency
6conducting the custodial interrogation shall ensure that the
7minor is able to consult with an attorney who is under contract
8with the county to provide public defender services.
9Representation by the public defender shall terminate at the
10first court appearance if the court determines that the minor
11is not indigent.
12    Every court shall, with the consent of the defendant and
13where the court finds that the rights of the defendant would be
14prejudiced by the appointment of the public defender, appoint
15counsel other than the public defender, except as otherwise
16provided in Section 113-3 of the "Code of Criminal Procedure
17of 1963". That counsel shall be compensated as is provided by
18law. He shall also, in the case of the conviction of any such
19person, prosecute any proceeding in review which in his
20judgment the interests of justice require.
21    In counties with a population over 3,000,000, the public
22defender, without fee or appointment and with the concurrence
23of the county board, may act as attorney to noncitizens in
24immigration cases. Representation by the public defender in
25immigration cases shall be limited to those arising in
26immigration courts located within the geographical boundaries

 

 

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1of the county where the public defender has been appointed to
2office unless the board authorizes the public defender to
3provide representation outside the county.
4(Source: P.A. 102-410, eff. 1-1-22; 102-1117, eff. 1-13-23.)
 
5    Section 10. The Juvenile Court Act of 1987 is amended by
6changing Sections 5-170 and 5-401.5 as follows:
 
7    (705 ILCS 405/5-170)
8    Sec. 5-170. Representation by counsel.
9    (a) In a proceeding under this Article, a minor who was
10under 18 15 years of age at the time of the commission of an
11act that if committed by an adult would be a violation of any
12offense Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, 9-3.3,
1311-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14,
1412-14.1, 12-15, or 12-16 of the Criminal Code of 1961 or the
15Criminal Code of 2012 must be represented by counsel
16throughout the entire custodial interrogation of the minor. In
17custodial interrogations, a minor may not waive the right to
18the assistance of counsel.
19    (b) In a judicial proceeding under this Article, a minor
20may not waive the right to the assistance of counsel in the
21minor's defense.
22(Source: P.A. 103-22, eff. 8-8-23.)
 
23    (705 ILCS 405/5-401.5)

 

 

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1    Sec. 5-401.5. When statements by minor may be used.
2    (a) In this Section, "custodial interrogation" means any
3interrogation (i) during which a reasonable person in the
4subject's position would consider the subject to be in custody
5and (ii) during which a question is asked that is reasonably
6likely to elicit an incriminating response.
7    In this Section, "electronic recording" includes motion
8picture, audiotape, videotape, or digital recording.
9    In this Section, "place of detention" means a building or
10a police station that is a place of operation for a municipal
11police department or county sheriff department or other law
12enforcement agency at which persons are or may be held in
13detention in connection with criminal charges against those
14persons or allegations that those persons are delinquent
15minors.
16    (a-5) An oral, written, or sign language statement of a
17minor, who at the time of the commission of the offense was
18under 18 years of age, is presumed to be inadmissible when the
19statement is obtained from the minor while the minor is
20subject to custodial interrogation by a law enforcement
21officer, State's Attorney, juvenile officer, or other public
22official or employee prior to the officer, State's Attorney,
23public official, or employee:
24        (1) ensuring that the minor is represented by counsel
25    throughout the custodial interrogation;
26        (2) (1) continuously reading reads to the minor, in

 

 

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1    its entirety and without stopping for purposes of a
2    response from the minor or verifying comprehension, the
3    following statement: "You have the right to remain silent.
4    That means you do not have to say anything. Anything you do
5    say can be used against you in court. You have the right to
6    get help from a lawyer. If you cannot pay for a lawyer, the
7    court will get you one for free. You can ask for a lawyer
8    at any time. You have the right to stop this interview at
9    any time."; and
10        (3) (2) after reading the statement required by
11    paragraphs paragraph (1) and (2) of this subsection (a-5),
12    the public official or employee shall ask the minor the
13    following questions and wait for the minor's response to
14    each question:
15            (A) "Do you want to have a lawyer?"
16            (B) "Do you want to talk to me?"
17    (b) An oral, written, or sign language statement of a
18minor who, at the time of the commission of the offense was
19under the age of 18 years, made as a result of a custodial
20interrogation conducted at a police station or other place of
21detention on or after the effective date of this amendatory
22Act of the 99th General Assembly shall be presumed to be
23inadmissible as evidence against the minor in any criminal
24proceeding or juvenile court proceeding, for an act that if
25committed by an adult would be a misdemeanor offense under
26Article 11 of the Criminal Code of 2012 or any felony offense

 

 

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1unless:
2        (1) an electronic recording is made of the custodial
3    interrogation; and
4        (2) the recording is substantially accurate and not
5    intentionally altered.
6    (b-5) (Blank).
7    (b-10) If, during the course of an electronically recorded
8custodial interrogation conducted under this Section of a
9minor who, at the time of the commission of the offense was
10under the age of 18 years, the minor makes a statement that
11creates a reasonable suspicion to believe the minor has
12committed an act that if committed by an adult would be an
13offense other than an offense required to be recorded under
14subsection (b), the interrogators may, without the minor's
15consent, continue to record the interrogation as it relates to
16the other offense notwithstanding any provision of law to the
17contrary. Any oral, written, or sign language statement of a
18minor made as a result of an interrogation under this
19subsection shall be presumed to be inadmissible as evidence
20against the minor in any criminal proceeding or juvenile court
21proceeding, unless the recording is substantially accurate and
22not intentionally altered.
23    (c) Every electronic recording made under this Section
24must be preserved until such time as the minor's adjudication
25for any offense relating to the statement is final and all
26direct and habeas corpus appeals are exhausted, or the

 

 

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1prosecution of such offenses is barred by law.
2    (d) If the court finds, by a preponderance of the
3evidence, that the minor was subjected to a custodial
4interrogation in violation of this Section, then any
5statements made by the minor during or following that
6non-recorded custodial interrogation, even if otherwise in
7compliance with this Section, are presumed to be inadmissible
8in any criminal proceeding or juvenile court proceeding
9against the minor except for the purposes of impeachment.
10    (d-5) An oral, written, or sign language statement of a
11minor made without counsel present throughout the entire
12custodial interrogation of the minor shall be inadmissible as
13evidence against the minor in any juvenile court proceeding or
14criminal proceeding.
15    (e) Nothing in this Section precludes the admission (i) of
16a statement made by the minor in open court in any criminal
17proceeding or juvenile court proceeding, before a grand jury,
18or at a preliminary hearing, (ii) of a statement made during a
19custodial interrogation that was not recorded as required by
20this Section because electronic recording was not feasible,
21(iii) of a voluntary statement, whether or not the result of a
22custodial interrogation, that has a bearing on the credibility
23of the accused as a witness, (iv) of a spontaneous statement
24that is not made in response to a question, (v) of a statement
25made after questioning that is routinely asked during the
26processing of the arrest of the suspect, (vi) of a statement

 

 

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1made during a custodial interrogation by a suspect who
2requests, prior to making the statement, to respond to the
3interrogator's questions only if an electronic recording is
4not made of the statement, provided that an electronic
5recording is made of the statement of agreeing to respond to
6the interrogator's question, only if a recording is not made
7of the statement, (vii) of a statement made during a custodial
8interrogation that is conducted out-of-state, (viii) of a
9statement given in violation of subsection (b) at a time when
10the interrogators are unaware that a death has in fact
11occurred, (ix) (blank), or (x) of any other statement that may
12be admissible under law. The State shall bear the burden of
13proving, by a preponderance of the evidence, that one of the
14exceptions described in this subsection (e) is applicable.
15Nothing in this Section precludes the admission of a
16statement, otherwise inadmissible under this Section, that is
17used only for impeachment and not as substantive evidence.
18    (f) (Blank). The presumption of inadmissibility of a
19statement made by a suspect at a custodial interrogation at a
20police station or other place of detention may be overcome by a
21preponderance of the evidence that the statement was
22voluntarily given and is reliable, based on the totality of
23the circumstances.
24    (g) Any electronic recording of any statement made by a
25minor during a custodial interrogation that is compiled by any
26law enforcement agency as required by this Section for the

 

 

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1purposes of fulfilling the requirements of this Section shall
2be confidential and exempt from public inspection and copying,
3as provided under Section 7 of the Freedom of Information Act,
4and the information shall not be transmitted to anyone except
5as needed to comply with this Section.
6    (h) A statement, admission, confession, or incriminating
7information made by or obtained from a minor related to the
8instant offense, as part of any behavioral health screening,
9assessment, evaluation, or treatment, whether or not
10court-ordered, shall not be admissible as evidence against the
11minor on the issue of guilt only in the instant juvenile court
12proceeding. The provisions of this subsection (h) are in
13addition to and do not override any existing statutory and
14constitutional prohibition on the admission into evidence in
15delinquency proceedings of information obtained during
16screening, assessment, or treatment.
17    (i) The changes made to this Section by Public Act 98-61
18apply to statements of a minor made on or after January 1, 2014
19(the effective date of Public Act 98-61).
20(Source: P.A. 103-22, eff. 8-8-23.)