Sen. Don Harmon
Filed: 3/9/2005
 
 

 




 

 		












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AMENDMENT TO SENATE BILL 72 




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    AMENDMENT NO. ______. Amend Senate Bill 72 by replacing 
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everything after the enacting clause with the following:

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



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    (705 ILCS 405/5-401.5)



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    (This Section may contain text from a Public Act with a 
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delayed effective
date)

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    Sec. 5-401.5. When statements by minor may be used. 

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    (a) In this Section, "custodial interrogation" means any 
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interrogation
(i) during which a reasonable person in the 
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subject's position
would consider himself or herself to be in 
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custody and (ii) during which
a
question is asked that is 
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reasonably likely to elicit an incriminating
response.

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    In this Section, "electronic recording" includes motion 
16
picture,
audiotape, videotape, or digital recording.

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    In this Section, "place of detention" means a building
or a 
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police station that is a place of operation for a municipal 
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police
department or county sheriff department or other law 
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enforcement agency
at which persons are or may be held in 
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detention in
connection with criminal charges against those 
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persons or allegations that
those
persons are delinquent 
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minors.

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    (b) An oral, written, or sign language statement of a minor 
 


 






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who, at the time
of the
commission of the offense was under the 
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age of 17
years, made as a
result of a custodial interrogation 
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conducted at a police station or other
place of detention on or 
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after
the effective date of
this amendatory Act of the 93rd 
5
General Assembly shall be presumed to be
inadmissible as 
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evidence against the
minor in
any criminal proceeding or 
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juvenile court proceeding,
for an act that if committed by an 
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adult would be
brought under Section 9-1, 9-1.2, 9-2, 9-2.1, 
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9-3, 9-3.2, or 9-3.3,
of the Criminal Code of 1961
or under 
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clause (d)(1)(F) of  Section 11-501 of the Illinois Vehicle Code

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unless:


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        (1) an electronic recording
is made of the custodial 
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    interrogation; and


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        (2) the recording is substantially accurate and not 
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    intentionally altered.

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    (c) Every electronic recording required under this Section

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must be preserved
until such time as the
minor's adjudication

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for any
offense relating to the statement is final and all 
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direct and habeas corpus
appeals are
exhausted,
or the 
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prosecution of such offenses is barred by law.

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    (d) If the court finds, by a preponderance of the evidence, 
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that the
minor
was
subjected to a custodial interrogation in 
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violation of this Section,
then any statements made
by the

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minor during or following that non-recorded custodial 
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interrogation, even
if
otherwise in compliance with this 
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Section, are presumed to be inadmissible in
any criminal

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proceeding or juvenile court proceeding against the minor 
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except for the
purposes of impeachment. 

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    (e) Nothing in this Section precludes the admission (i) of 
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a statement made
by the
minor in open court in any criminal 
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proceeding or juvenile court proceeding,
before a grand jury, 
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or
at a
preliminary hearing,
(ii) of a
statement made during a

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custodial interrogation that was not recorded as required by

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this
Section because electronic recording was not feasible, 
 


 






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(iii) of a
voluntary
statement,
whether or not the result of a 
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custodial interrogation, that has a bearing on
the
credibility 
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of the accused as a witness, (iv)
of a spontaneous statement
 
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that is not made in response to a question,
(v) of a statement 
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made after questioning that is routinely
asked during the 
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processing of the arrest of the suspect, (vi) of a statement

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made during a custodial interrogation by a suspect who 
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requests, prior to
making
the statement, to respond to the

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interrogator's questions only if
an electronic recording is not 
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made of the statement, provided that an
electronic
recording is 
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made of the statement of agreeing to respond to
the 
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interrogator's question, only if a recording is not made of the 
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statement,
(vii)
of a statement made
during a custodial

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interrogation that is conducted out-of-state,
(viii)
of a

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statement given at a time when the interrogators are unaware 
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that a death
has in fact occurred, or (ix) of any
other 
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statement that may be admissible under law.  The State shall 
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bear the
burden of proving, by a preponderance of the evidence, 
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that one of the
exceptions described in this subsection (e) is 
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applicable.  Nothing in this
Section precludes the admission of 
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a statement, otherwise inadmissible under
this Section, that is 
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used only for impeachment and not as substantive
evidence.

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    (f) The presumption of inadmissibility of a statement made 
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by a suspect at
a custodial interrogation at a police station 
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or other place of detention may
be overcome by a preponderance 
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of the evidence
that
the statement was voluntarily given and is 
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reliable, based on the totality of
the
circumstances.

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    (g) Any electronic recording of any statement made by a 
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minor during a
custodial interrogation that is compiled by any 
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law enforcement agency as
required by this Section for the 
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purposes of fulfilling the requirements of
this
Section shall 
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be confidential and exempt from public inspection and copying, 
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as
provided under Section 7 of the Freedom of Information Act, 
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and the information
shall not be transmitted to anyone except 
 


 






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as needed to comply with this
Section.

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(Source: P.A. 93-206, eff. 7-18-05; 93-517, eff. 8-6-05.)

 
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    Section 10. The Code of Criminal Procedure of 1963 is 
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amended  by changing Section 103-2.1 as follows:
 



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    (725 ILCS 5/103-2.1)



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    (This Section may contain text from a Public Act with a 
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delayed effective
date)

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    Sec. 103-2.1. When statements by accused may be used. 

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    (a) In this Section, "custodial interrogation" means any 
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interrogation
during which (i) a reasonable person in the 
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subject's position would consider
himself or herself to be in 
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custody and (ii) during which
a question is asked that is 
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reasonably likely to elicit an incriminating
response.

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    In this Section, "place of detention" means a building or a 
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police station
that is a place of operation for a municipal 
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police department or county
sheriff department or other law 
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enforcement agency, not a courthouse, that
is owned or operated 
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by a
law enforcement agency at which persons are or may be held 
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in detention in
connection with criminal charges against those 
20
persons.

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    In this Section, "electronic recording" includes motion 
22
picture,
audiotape, or videotape, or digital recording.

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    (b) An oral, written, or sign language statement of an 
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accused made as a
result of a
custodial
interrogation at a 
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police station or other place of detention shall be presumed
to 
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be inadmissible as
evidence against the
accused in any
criminal

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proceeding brought under Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 
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9-3.2, or 9-3.3
of the Criminal Code of 1961 or under clause 
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(d)(1)(F) of  Section 11-501 of the Illinois Vehicle Code

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unless:


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        (1) an electronic recording
is made of the custodial 
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    interrogation; and


 


 






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        (2) the recording is substantially accurate and not 
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    intentionally altered.

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    (c) Every electronic recording required under this Section

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must be preserved
until such time as the
defendant's conviction

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for any
offense relating to the statement is final and all 
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direct and habeas corpus
appeals are
exhausted,
or the 
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prosecution of such offenses is barred by law.

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    (d) If the court finds, by a preponderance of the evidence, 
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that the
defendant
was
subjected to a custodial interrogation 
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in violation of this Section, then any
statements made
by the

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defendant during or following that non-recorded custodial 
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interrogation, even
if
otherwise in compliance with this 
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Section, are presumed to be inadmissible in
any criminal

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proceeding against the defendant except for the purposes of 
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impeachment. 

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    (e) Nothing in this Section precludes the admission (i) of 
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a statement made
by the
accused in open court at his or her 
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trial, before a grand jury, or at
a preliminary hearing, (ii)

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of a
statement made during a
custodial interrogation that was 
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not recorded as required by
this
Section, because electronic 
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recording was not feasible, (iii) of a
voluntary
statement,

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whether or not the result of a custodial interrogation, that 
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has a bearing on
the
credibility of the accused as a witness,

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(iv) of a spontaneous statement that is
not made in response to 
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a question,
(v) of a statement made after questioning that is 
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routinely
asked during the processing of the arrest of the 
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suspect, (vi) of a statement
made
during a custodial 
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interrogation by a suspect who requests, prior to making the

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statement, to respond to the
interrogator's questions only if

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an electronic recording is not made of the statement, provided 
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that an
electronic
recording is made of the statement of 
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agreeing to respond to
the interrogator's question, only if a 
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recording is not made of the statement,
(vii) of a
statement 
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made
during a custodial
interrogation that is conducted 
 


 






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out-of-state, (viii)
of a statement
given at a time when the 
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interrogators are unaware that a death has in fact
occurred, or 
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(ix) of any other
statement that may be
admissible under law.  
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The State shall bear the burden of proving, by a
preponderance 
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of the evidence, that one of the exceptions described in this

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subsection (e) is
applicable.
Nothing in
this Section precludes 
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the admission of a statement, otherwise inadmissible
under
this 
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Section, that is used only for impeachment and not as 
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substantive
evidence.

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    (f) The presumption of inadmissibility of a statement made 
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by a suspect at
a custodial interrogation at a police station 
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or other place of detention may
be overcome by a preponderance 
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of the evidence
that
the statement was voluntarily given and is 
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reliable, based on the totality of
the
circumstances.

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    (g) Any electronic recording of any statement made by an 
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accused during a
custodial interrogation that is compiled by 
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any law enforcement agency as
required by this Section for the 
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purposes of fulfilling the requirements of
this
Section shall 
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be confidential and exempt from public inspection and copying, 
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as
provided under Section 7 of the Freedom of Information Act, 
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and the information
shall not be transmitted to anyone except 
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as needed to comply with this
Section.

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(Source: P.A. 93-206, eff. 7-18-05; 93-517, eff. 8-6-05.)

 

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    Section 99. Effective date. This Act takes effect upon 
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becoming law.".