093_HB0223eng HB0223 Engrossed LRB093 04402 RLC 04452 b 1 AN ACT in relation to interrogations. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 5. The Illinois Criminal Justice Information Act 5 is amended by adding Section 7.5 as follows: 6 (20 ILCS 3930/7.5 new) 7 Sec. 7.5. Grants for electronic recording equipment. 8 (a) The Authority, from appropriations made to it for 9 that purpose, shall make grants to local law enforcement 10 agencies for the purpose of purchasing equipment for 11 electronic recording of interrogations. 12 (b) The Authority shall promulgate rules to implement 13 this Section. 14 Section 10. The Illinois Police Training Act is amended 15 by adding Section 10.3 as follows: 16 (50 ILCS 705/10.3 new) 17 Sec. 10.3. Training of police officers to conduct 18 electronic interrogations. From appropriations made to it 19 for that purpose, the Board shall initiate, administer, and 20 conduct training programs for permanent police officers, 21 part-time police officers, and recruits on the methods and 22 technical aspects of conducting electronic recordings of 23 interrogations. 24 Section 15. The Juvenile Court Act of 1987 is amended by 25 adding Section 5-401.5 as follows: 26 (705 ILCS 405/5-401.5 new) 27 Sec. 5-401.5. When statements by minor may be used. HB0223 Engrossed -2- LRB093 04402 RLC 04452 b 1 (a) In this Section, "custodial interrogation" means any 2 interrogation (i) during which a reasonable person in the 3 subject's position would consider himself or herself to be in 4 custody and (ii) during which a question is asked that is 5 reasonably likely to elicit an incriminating response. 6 In this Section, "electronic recording" includes motion 7 picture, audiotape, videotape, or digital recording. 8 In this Section, "place of detention" means a building or 9 a police station that is a place of operation for a municipal 10 police department or county sheriff department or other law 11 enforcement agency at which persons are or may be held in 12 detention in connection with criminal charges against those 13 persons or allegations that those persons are delinquent 14 minors. 15 (b) An oral, written, or sign language statement of a 16 minor who, at the time of the commission of the offense was 17 under the age of 17 years, made as a result of a custodial 18 interrogation conducted at a police station or other place of 19 detention on or after the effective date of this amendatory 20 Act of the 93rd General Assembly shall be presumed to be 21 inadmissible as evidence against the minor in any criminal 22 proceeding or juvenile court proceeding, for an act that if 23 committed by an adult would be brought under Section 9-1, 24 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, or 9-3.3, of the Criminal Code 25 of 1961 unless: 26 (1) an electronic recording is made of the 27 custodial interrogation; and 28 (2) the recording is substantially accurate and not 29 intentionally altered. 30 (c) Every electronic recording required under this 31 Section must be preserved until such time as the minor's 32 adjudication for any offense relating to the statement is 33 final and all direct and habeas corpus appeals are exhausted, 34 or the prosecution of such offenses is barred by law. HB0223 Engrossed -3- LRB093 04402 RLC 04452 b 1 (d) If the court finds, by a preponderance of the 2 evidence, that the minor was subjected to a custodial 3 interrogation in violation of this Section, then any 4 statements made by the minor during or following that 5 non-recorded custodial interrogation, even if otherwise in 6 compliance with this Section, are presumed to be inadmissible 7 in any criminal proceeding or juvenile court proceeding 8 against the minor except for the purposes of impeachment. 9 (e) Nothing in this Section precludes the admission (i) 10 of a statement made by the minor in open court in any 11 criminal proceeding or juvenile court proceeding, before a 12 grand jury, or at a preliminary hearing, (ii) of a statement 13 made during a custodial interrogation that was not recorded 14 as required by this Section because electronic recording was 15 not feasible, (iii) of a voluntary statement, whether or not 16 the result of a custodial interrogation, that has a bearing 17 on the credibility of the accused as a witness, (iv) of a 18 spontaneous statement that is not made in response to a 19 question, (v) of a statement made after questioning that is 20 routinely asked during the processing of the arrest of the 21 suspect, (vi) of a statement made during a custodial 22 interrogation by a suspect who requests, prior to making the 23 statement, to respond to the interrogator's questions only if 24 an electronic recording is not made of the statement, 25 provided that an electronic recording is made of the 26 statement of agreeing to respond to the interrogator's 27 question, only if a recording is not made of the statement, 28 (vii) of a statement made during a custodial interrogation 29 that is conducted out-of-state, (viii) of a statement given 30 at a time when the interrogators are unaware that a death has 31 in fact occurred, or (ix) of any other statement that may be 32 admissible under law. The State shall bear the burden of 33 proving, by a preponderance of the evidence, that one of the 34 exceptions described in this subsection (e) is applicable. HB0223 Engrossed -4- LRB093 04402 RLC 04452 b 1 Nothing in this Section precludes the admission of a 2 statement, otherwise inadmissible under this Section, that is 3 used only for impeachment and not as substantive evidence. 4 (f) The presumption of inadmissibility of a statement 5 made by a suspect at a custodial interrogation may be 6 overcome by a preponderance of the evidence that the 7 statement was voluntarily given and is reliable, based on the 8 totality of the circumstances. 9 (g) Any electronic recording of any statement made by a 10 minor during a custodial interrogation that is compiled by 11 any law enforcement agency as required by this Section for 12 the purposes of fulfilling the requirements of this Section 13 shall be confidential and exempt from public inspection and 14 copying, as provided under Section 7 of the Freedom of 15 Information Act, and the information shall not be transmitted 16 to anyone except as needed to comply with this Section. 17 Section 20. The Criminal Code of 1961 is amended by 18 changing Section 14-3 as follows: 19 (720 ILCS 5/14-3) (from Ch. 38, par. 14-3) 20 Sec. 14-3. Exemptions. The following activities shall 21 be exempt from the provisions of this Article: 22 (a) Listening to radio, wireless and television 23 communications of any sort where the same are publicly made; 24 (b) Hearing conversation when heard by employees of any 25 common carrier by wire incidental to the normal course of 26 their employment in the operation, maintenance or repair of 27 the equipment of such common carrier by wire so long as no 28 information obtained thereby is used or divulged by the 29 hearer; 30 (c) Any broadcast by radio, television or otherwise 31 whether it be a broadcast or recorded for the purpose of 32 later broadcasts of any function where the public is in HB0223 Engrossed -5- LRB093 04402 RLC 04452 b 1 attendance and the conversations are overheard incidental to 2 the main purpose for which such broadcasts are then being 3 made; 4 (d) Recording or listening with the aid of any device to 5 any emergency communication made in the normal course of 6 operations by any federal, state or local law enforcement 7 agency or institutions dealing in emergency services, 8 including, but not limited to, hospitals, clinics, ambulance 9 services, fire fighting agencies, any public utility, 10 emergency repair facility, civilian defense establishment or 11 military installation; 12 (e) Recording the proceedings of any meeting required to 13 be open by the Open Meetings Act, as amended; 14 (f) Recording or listening with the aid of any device to 15 incoming telephone calls of phone lines publicly listed or 16 advertised as consumer "hotlines" by manufacturers or 17 retailers of food and drug products. Such recordings must be 18 destroyed, erased or turned over to local law enforcement 19 authorities within 24 hours from the time of such recording 20 and shall not be otherwise disseminated. Failure on the part 21 of the individual or business operating any such recording or 22 listening device to comply with the requirements of this 23 subsection shall eliminate any civil or criminal immunity 24 conferred upon that individual or business by the operation 25 of this Section; 26 (g) With prior notification to the State's Attorney of 27 the county in which it is to occur, recording or listening 28 with the aid of any device to any conversation where a law 29 enforcement officer, or any person acting at the direction of 30 law enforcement, is a party to the conversation and has 31 consented to it being intercepted or recorded under 32 circumstances where the use of the device is necessary for 33 the protection of the law enforcement officer or any person 34 acting at the direction of law enforcement, in the course of HB0223 Engrossed -6- LRB093 04402 RLC 04452 b 1 an investigation of a forcible felony, a felony violation of 2 the Illinois Controlled Substances Act, a felony violation of 3 the Cannabis Control Act, or any "streetgang related" or 4 "gang-related" felony as those terms are defined in the 5 Illinois Streetgang Terrorism Omnibus Prevention Act. Any 6 recording or evidence derived as the result of this exemption 7 shall be inadmissible in any proceeding, criminal, civil or 8 administrative, except (i) where a party to the conversation 9 suffers great bodily injury or is killed during such 10 conversation, or (ii) when used as direct impeachment of a 11 witness concerning matters contained in the interception or 12 recording. The Director of the Department of State Police 13 shall issue regulations as are necessary concerning the use 14 of devices, retention of tape recordings, and reports 15 regarding their use; 16 (g-5) With approval of the State's Attorney of the 17 county in which it is to occur, recording or listening with 18 the aid of any device to any conversation where a law 19 enforcement officer, or any person acting at the direction of 20 law enforcement, is a party to the conversation and has 21 consented to it being intercepted or recorded in the course 22 of an investigation of any offense defined in Article 29D of 23 this Code. In all such cases, an application for an order 24 approving the previous or continuing use of an eavesdropping 25 device must be made within 48 hours of the commencement of 26 such use. In the absence of such an order, or upon its 27 denial, any continuing use shall immediately terminate. The 28 Director of State Police shall issue rules as are necessary 29 concerning the use of devices, retention of tape recordings, 30 and reports regarding their use. 31 Any recording or evidence obtained or derived in the 32 course of an investigation of any offense defined in Article 33 29D of this Code shall, upon motion of the State's Attorney 34 or Attorney General prosecuting any violation of Article 29D, HB0223 Engrossed -7- LRB093 04402 RLC 04452 b 1 be reviewed in camera with notice to all parties present by 2 the court presiding over the criminal case, and, if ruled by 3 the court to be relevant and otherwise admissible, it shall 4 be admissible at the trial of the criminal case. 5 This subsection (g-5) is inoperative on and after January 6 1, 2005. No conversations recorded or monitored pursuant to 7 this subsection (g-5) shall be inadmissable in a court of law 8 by virtue of the repeal of this subsection (g-5) on January 9 1, 2005. 10 (h) Recordings made simultaneously with a video 11 recording of an oral conversation between a peace officer, 12 who has identified his or her office, and a person stopped 13 for an investigation of an offense under the Illinois Vehicle 14 Code; 15 (i) Recording of a conversation made by or at the 16 request of a person, not a law enforcement officer or agent 17 of a law enforcement officer, who is a party to the 18 conversation, under reasonable suspicion that another party 19 to the conversation is committing, is about to commit, or has 20 committed a criminal offense against the person or a member 21 of his or her immediate household, and there is reason to 22 believe that evidence of the criminal offense may be obtained 23 by the recording; and 24 (j) The use of a telephone monitoring device by either 25 (1) a corporation or other business entity engaged in 26 marketing or opinion research or (2) a corporation or other 27 business entity engaged in telephone solicitation, as defined 28 in this subsection, to record or listen to oral telephone 29 solicitation conversations or marketing or opinion research 30 conversations by an employee of the corporation or other 31 business entity when: 32 (i) the monitoring is used for the purpose of 33 service quality control of marketing or opinion research 34 or telephone solicitation, the education or training of HB0223 Engrossed -8- LRB093 04402 RLC 04452 b 1 employees or contractors engaged in marketing or opinion 2 research or telephone solicitation, or internal research 3 related to marketing or opinion research or telephone 4 solicitation; and 5 (ii) the monitoring is used with the consent of at 6 least one person who is an active party to the marketing 7 or opinion research conversation or telephone 8 solicitation conversation being monitored. 9 No communication or conversation or any part, portion, or 10 aspect of the communication or conversation made, acquired, 11 or obtained, directly or indirectly, under this exemption 12 (j), may be, directly or indirectly, furnished to any law 13 enforcement officer, agency, or official for any purpose or 14 used in any inquiry or investigation, or used, directly or 15 indirectly, in any administrative, judicial, or other 16 proceeding, or divulged to any third party. 17 When recording or listening authorized by this subsection 18 (j) on telephone lines used for marketing or opinion research 19 or telephone solicitation purposes results in recording or 20 listening to a conversation that does not relate to marketing 21 or opinion research or telephone solicitation; the person 22 recording or listening shall, immediately upon determining 23 that the conversation does not relate to marketing or opinion 24 research or telephone solicitation, terminate the recording 25 or listening and destroy any such recording as soon as is 26 practicable. 27 Business entities that use a telephone monitoring or 28 telephone recording system pursuant to this exemption (j) 29 shall provide current and prospective employees with notice 30 that the monitoring or recordings may occur during the course 31 of their employment. The notice shall include prominent 32 signage notification within the workplace. 33 Business entities that use a telephone monitoring or 34 telephone recording system pursuant to this exemption (j) HB0223 Engrossed -9- LRB093 04402 RLC 04452 b 1 shall provide their employees or agents with access to 2 personal-only telephone lines which may be pay telephones, 3 that are not subject to telephone monitoring or telephone 4 recording. 5 For the purposes of this subsection (j), "telephone 6 solicitation" means a communication through the use of a 7 telephone by live operators: 8 (i) soliciting the sale of goods or services; 9 (ii) receiving orders for the sale of goods or 10 services; 11 (iii) assisting in the use of goods or services; or 12 (iv) engaging in the solicitation, administration, 13 or collection of bank or retail credit accounts. 14 For the purposes of this subsection (j), "marketing or 15 opinion research" means a marketing or opinion research 16 interview conducted by a live telephone interviewer engaged 17 by a corporation or other business entity whose principal 18 business is the design, conduct, and analysis of polls and 19 surveys measuring the opinions, attitudes, and responses of 20 respondents toward products and services, or social or 21 political issues, or both. 22 (k) Electronic recordings, including but not limited to, 23 a motion picture, videotape, digital, or other visual or 24 audio recording, made of a custodial interrogation of an 25 individual at a police station or other place of detention by 26 a law enforcement officer under Section 5-401.5 of the 27 Juvenile Court Act of 1987 or Section 103-2.1 of the Code of 28 Criminal Procedure of 1963. 29 (Source: P.A. 91-357, eff. 7-29-99; 92-854, eff. 12-5-02.) 30 Section 25. The Code of Criminal Procedure of 1963 is 31 amended by adding Section 103-2.1 as follows: 32 (725 ILCS 5/103-2.1 new) HB0223 Engrossed -10- LRB093 04402 RLC 04452 b 1 Sec. 103-2.1. When statements by accused may be used. 2 (a) In this Section, "custodial interrogation" means any 3 interrogation during which (i) a reasonable person in the 4 subject's position would consider himself or herself to be in 5 custody and (ii) during which a question is asked that is 6 reasonably likely to elicit an incriminating response. 7 In this Section, "place of detention" means a building or 8 a police station that is a place of operation for a municipal 9 police department or county sheriff department or other law 10 enforcement agency, not a courthouse, that is owned or 11 operated by a law enforcement agency at which persons are or 12 may be held in detention in connection with criminal charges 13 against those persons. 14 In this Section, "electronic recording" includes motion 15 picture, audiotape, or videotape, or digital recording. 16 (b) An oral, written, or sign language statement of an 17 accused made as a result of a custodial interrogation at a 18 police station or other place of detention shall be presumed 19 to be inadmissible as evidence against the accused in any 20 criminal proceeding brought under Section 9-1, 9-1.2, 9-2, 21 9-2.1, 9-3, 9-3.2, or 9-3.3 of the Criminal Code of 1961 22 unless: 23 (1) an electronic recording is made of the custodial 24 interrogation; and 25 (2) the recording is substantially accurate and not 26 intentionally altered. 27 (c) Every electronic recording required under this 28 Section must be preserved until such time as the defendant's 29 conviction for any offense relating to the statement is final 30 and all direct and habeas corpus appeals are exhausted, or 31 the prosecution of such offenses is barred by law. 32 (d) If the court finds, by a preponderance of the 33 evidence, that the defendant was subjected to a custodial 34 interrogation in violation of this Section, then any HB0223 Engrossed -11- LRB093 04402 RLC 04452 b 1 statements made by the defendant during or following that 2 non-recorded custodial interrogation, even if otherwise in 3 compliance with this Section, are presumed to be inadmissible 4 in any criminal proceeding against the defendant except for 5 the purposes of impeachment. 6 (e) Nothing in this Section precludes the admission (i) 7 of a statement made by the accused in open court at his or 8 her trial, before a grand jury, or at a preliminary hearing, 9 (ii) of a statement made during a custodial interrogation 10 that was not recorded as required by this Section, because 11 electronic recording was not feasible, (iii) of a voluntary 12 statement, whether or not the result of a custodial 13 interrogation, that has a bearing on the credibility of the 14 accused as a witness, (iv) of a spontaneous statement that is 15 not made in response to a question, (v) of a statement made 16 after questioning that is routinely asked during the 17 processing of the arrest of the suspect, (vi) of a statement 18 made during a custodial interrogation by a suspect who 19 requests, prior to making the statement, to respond to the 20 interrogator's questions only if an electronic recording is 21 not made of the statement, provided that an electronic 22 recording is made of the statement of agreeing to respond to 23 the interrogator's question, only if a recording is not made 24 of the statement, (vii) of a statement made during a 25 custodial interrogation that is conducted out-of-state, 26 (viii) of a statement given at a time when the interrogators 27 are unaware that a death has in fact occurred, or (ix) of any 28 other statement that may be admissible under law. The State 29 shall bear the burden of proving, by a preponderance of the 30 evidence, that one of the exceptions described in this 31 subsection (e) is applicable. Nothing in this Section 32 precludes the admission of a statement, otherwise 33 inadmissible under this Section, that is used only for 34 impeachment and not as substantive evidence. HB0223 Engrossed -12- LRB093 04402 RLC 04452 b 1 (f) The presumption of inadmissibility of a statement 2 made by a suspect at a custodial interrogation may be 3 overcome by a preponderance of the evidence that the 4 statement was voluntarily given and is reliable, based on the 5 totality of the circumstances. 6 (g) Any electronic recording of any statement made by an 7 accused during a custodial interrogation that is compiled by 8 any law enforcement agency as required by this Section for 9 the purposes of fulfilling the requirements of this Section 10 shall be confidential and exempt from public inspection and 11 copying, as provided under Section 7 of the Freedom of 12 Information Act, and the information shall not be transmitted 13 to anyone except as needed to comply with this Section. 14 Section 95. The State Mandates Act is amended by adding 15 Section 8.27 as follows: 16 (30 ILCS 805/8.27 new) 17 Sec. 8.27. Exempt mandate. Notwithstanding Sections 6 18 and 8 of this Act, no reimbursement by the State is required 19 for the implementation of any mandate created by this 20 amendatory Act of the 93rd General Assembly. 21 Section 99. Effective date. Sections 5, 10, 20, and 95 22 of this Act and this Section 99 take effect upon becoming 23 law. Sections 15 and 25 of this Act take effect 2 years 24 after becoming law.