093_HB3390

 
                                     LRB093 08570 RLC 08796 b

 1        AN  ACT  concerning  recording  of statements in criminal
 2    investigations.

 3        Be it enacted by the People of  the  State  of  Illinois,
 4    represented in the General Assembly:

 5        Section 2.  The Illinois Criminal Justice Information Act
 6    is amended by adding Section 7.5 as follows:

 7        (20 ILCS 3930/7.5 new)
 8        Sec. 7.5.  Grants for electronic recording equipment.
 9        (a)  The  Authority,  from  appropriations made to it for
10    that purpose, shall make  grants  to  local  law  enforcement
11    agencies   for   the  purpose  of  purchasing  equipment  for
12    electronic recording of interrogations.
13        (b)  The Authority shall promulgate  rules  to  implement
14    this Section.

15        Section  5.   The Illinois Police Training Act is amended
16    by adding Section 10.3 as follows:

17        (50 ILCS 705/10.3 new)
18        Sec.  10.3.  Training  of  police  officers  to   conduct
19    electronic  interrogations.    From appropriations made to it
20    for that purpose, the Board shall initiate,  administer,  and
21    conduct  training  programs  for  permanent  police officers,
22    part-time police officers, and recruits on  the  methods  and
23    technical  aspects  of  conducting  electronic  recordings of
24    interrogations.

25        Section 10.  The Juvenile Court Act of 1987 is amended by
26    adding Section 5-401.5 as follows:

27        (705 ILCS 405/5-401.5 new)
 
                            -2-      LRB093 08570 RLC 08796 b
 1        Sec. 5-401.5.  When statements by minor may be used.
 2        (a)  In this Section, "custodial interrogation" means any
 3    interrogation (i) during which a  reasonable  person  in  the
 4    subject's  position,  innocent  of  any crime, would consider
 5    himself or herself to be in custody and (ii) during  which  a
 6    question  is  asked  that  is  reasonably likely to elicit an
 7    incriminating response.
 8        In this Section, "electronic recording"  includes  motion
 9    picture, audiotape, or videotape.
10        In  this  Section,  "place of detention" means a building
11    under the control  of  a  law  enforcement  agency  at  which
12    persons  are  or  may be held in detention in connection with
13    criminal charges against those persons  or  allegations  that
14    those persons are delinquent minors.
15        (b) An oral or sign language statement of a minor who, at
16    the  time  of the commission of the offense was under the age
17    of 17 years, made as a result of  a  custodial  interrogation
18    conducted  at a police station or other place of detention on
19    or after the effective date of this  amendatory  Act  of  the
20    93rd General Assembly shall be presumed to be inadmissible as
21    evidence  against  the  minor  in  any criminal proceeding or
22    juvenile court proceeding, for an act that if committed by an
23    adult would be brought under Section 9-1, 9-1.2, 9-2,  9-2.1,
24    9-3,  9-3.2, 9-3.3, 12-13, 12-14, 12-14.1, 12-15, or 12-16 of
25    the Criminal Code of 1961 unless:
26             (1)  an  electronic  recording  is   made   of   the
27        custodial interrogation;
28             (2)  the  recording  is  accurate  and  has not been
29        altered; and
30             (3) not later than the 20th day before the  date  of
31        any proceeding in criminal or juvenile court at which the
32        statement  is  to  be  admitted  as  evidence against the
33        minor, the attorney representing the minor  is  permitted
34        to  review  a  true,  complete,  and accurate copy of all
 
                            -3-      LRB093 08570 RLC 08796 b
 1        recordings of the minor made under this Section.
 2        (c) Every electronic recording of any statement made by a
 3    minor during a custodial interrogation at a police station or
 4    other place of detention must be preserved until such time as
 5    the minor's adjudication for  any  offense  relating  to  the
 6    statement  is  final and all direct and habeas corpus appeals
 7    are exhausted, or the prosecution of such offenses is  barred
 8    by law.
 9        (d)  If  the  court  finds,  by  a  preponderance  of the
10    evidence,  that  the  minor  was  subjected  to  a  custodial
11    interrogation at a police station or other place of detention
12    prior to the custodial interrogation at a police  station  or
13    other place of detention and after the effective date of this
14    amendatory  Act  of  the  93rd  General Assembly that was the
15    subject of  the  electronic  recording,  and  if  that  prior
16    custodial interrogation at a police station or other place of
17    detention  relating  to  the same offense was not recorded as
18    required by this Section, then any  statements  made  by  the
19    minor   during   or  following  that  non-recorded  custodial
20    interrogation  at  a  police  station  or  other   place   of
21    detention, even if otherwise in compliance with this Section,
22    are presumed to be inadmissible in any criminal proceeding or
23    juvenile  court  proceeding  against the minor except for the
24    purposes of impeachment.
25        (e) Nothing in this Section precludes the  admission  (i)
26    of  a  statement  made  by  the  minor  in  open court in any
27    criminal proceeding or juvenile court  proceeding,  before  a
28    grand  jury, or at a preliminary hearing, (ii) of a statement
29    made during a custodial interrogation that was  not  recorded
30    as  required by this Section because electronic recording was
31    not feasible, (iii) of a voluntary statement, whether or  not
32    the  result  of a custodial interrogation, that has a bearing
33    on the credibility of the accused as a  witness,  (iv)  of  a
34    statement   made   under  exigent  circumstances,  (v)  of  a
 
                            -4-      LRB093 08570 RLC 08796 b
 1    spontaneous statement  that is not  made  in  response  to  a
 2    question,  (vi) of a statement made after questioning that is
 3    routinely asked during the processing of the  arrest  of  the
 4    suspect,  (vii)  of  a  statement  made  during  a  custodial
 5    interrogation  by  a  suspect who agrees, prior to making the
 6    statement, to respond to the interrogator's questions only if
 7    an  electronic  recording  is  not  made  of  the  statement,
 8    provided  that  an  electronic  recording  is  made  of   the
 9    statement  of  agreeing  to  respond  to  the  interrogator's
10    question,  only  if a recording is not made of the statement,
11    (viii) of a statement made during a  custodial  interrogation
12    that is conducted out-of-state, (ix) of a statement made by a
13    suspect  who  is being interrogated simultaneously with other
14    suspects concerning the same offense, but only to the  extent
15    that  no electric recording equipment is available because it
16    is  being  utilized  for  the  interrogations  of  the  other
17    suspects for the same offense, (x) of a statement given at  a
18    time  when  the  interrogators are unaware that a death or an
19    act of sexual assault or sexual conduct has in fact occurred,
20    or (xi) of any other statement that may be  admissible  under
21    law.   The  State  shall  bear  the  burden  of proving, by a
22    preponderance of the evidence, that  one  of  the  exceptions
23    described  in  this subsection (e) is applicable.  Nothing in
24    this  Section  precludes  the  admission  of   a   statement,
25    otherwise  inadmissible under this Section, that is used only
26    for impeachment and not as substantive evidence.
27        (f)  The presumption of inadmissibility  of  a  statement
28    made  by  a  suspect  at  a  custodial  interrogation  may be
29    overcome  by  a  preponderance  of  the  evidence  that   the
30    statement was voluntarily given and is reliable, based on the
31    totality of the circumstances.

32        Section  15.   The  Criminal  Code  of 1961 is amended by
33    changing Section 14-3 as follows:
 
                            -5-      LRB093 08570 RLC 08796 b
 1        (720 ILCS 5/14-3) (from Ch. 38, par. 14-3)
 2        Sec. 14-3.  Exemptions.  The following  activities  shall
 3    be exempt from the provisions of this Article:
 4        (a)  Listening   to   radio,   wireless   and  television
 5    communications of any sort where the same are publicly made;
 6        (b)  Hearing conversation when heard by employees of  any
 7    common  carrier  by  wire  incidental to the normal course of
 8    their employment in the operation, maintenance or  repair  of
 9    the  equipment  of  such common carrier by wire so long as no
10    information obtained thereby  is  used  or  divulged  by  the
11    hearer;
12        (c)  Any  broadcast  by  radio,  television  or otherwise
13    whether it be a broadcast or  recorded  for  the  purpose  of
14    later  broadcasts  of  any  function  where  the public is in
15    attendance and the conversations are overheard incidental  to
16    the  main  purpose  for  which such broadcasts are then being
17    made;
18        (d)  Recording or listening with the aid of any device to
19    any emergency communication made  in  the  normal  course  of
20    operations  by  any  federal,  state or local law enforcement
21    agency  or  institutions  dealing  in   emergency   services,
22    including,  but not limited to, hospitals, clinics, ambulance
23    services,  fire  fighting  agencies,  any   public   utility,
24    emergency  repair facility, civilian defense establishment or
25    military installation;
26        (e)  Recording the proceedings of any meeting required to
27    be open by the Open Meetings Act, as amended;
28        (f)  Recording or listening with the aid of any device to
29    incoming telephone calls of phone lines  publicly  listed  or
30    advertised   as   consumer  "hotlines"  by  manufacturers  or
31    retailers of food and drug products.  Such recordings must be
32    destroyed, erased or turned over  to  local  law  enforcement
33    authorities  within  24 hours from the time of such recording
34    and shall not be otherwise disseminated.  Failure on the part
 
                            -6-      LRB093 08570 RLC 08796 b
 1    of the individual or business operating any such recording or
 2    listening device to comply  with  the  requirements  of  this
 3    subsection  shall  eliminate  any  civil or criminal immunity
 4    conferred upon that individual or business by  the  operation
 5    of this Section;
 6        (g)  With  prior  notification to the State's Attorney of
 7    the county in which it is to occur,  recording  or  listening
 8    with  the  aid  of any device to any conversation where a law
 9    enforcement officer, or any person acting at the direction of
10    law enforcement, is a  party  to  the  conversation  and  has
11    consented   to   it   being  intercepted  or  recorded  under
12    circumstances where the use of the device  is  necessary  for
13    the  protection  of the law enforcement officer or any person
14    acting at the direction of law enforcement, in the course  of
15    an  investigation of a forcible felony, a felony violation of
16    the Illinois Controlled Substances Act, a felony violation of
17    the Cannabis Control Act,  or  any  "streetgang  related"  or
18    "gang-related"  felony  as  those  terms  are  defined in the
19    Illinois Streetgang Terrorism  Omnibus  Prevention  Act.  Any
20    recording or evidence derived as the result of this exemption
21    shall  be  inadmissible in any proceeding, criminal, civil or
22    administrative, except (i) where a party to the  conversation
23    suffers   great  bodily  injury  or  is  killed  during  such
24    conversation, or (ii) when used as direct  impeachment  of  a
25    witness  concerning  matters contained in the interception or
26    recording.  The Director of the Department  of  State  Police
27    shall  issue  regulations as are necessary concerning the use
28    of  devices,  retention  of  tape  recordings,  and   reports
29    regarding their use;
30        (g-5)  With  approval  of  the  State's  Attorney  of the
31    county in which it is to occur, recording or  listening  with
32    the  aid  of  any  device  to  any  conversation  where a law
33    enforcement officer, or any person acting at the direction of
34    law enforcement, is a  party  to  the  conversation  and  has
 
                            -7-      LRB093 08570 RLC 08796 b
 1    consented  to  it being intercepted or recorded in the course
 2    of an investigation of any offense defined in Article 29D  of
 3    this  Code.  In  all  such cases, an application for an order
 4    approving the previous or continuing use of an  eavesdropping
 5    device  must  be  made within 48 hours of the commencement of
 6    such use.  In the absence of  such  an  order,  or  upon  its
 7    denial,  any  continuing use shall immediately terminate. The
 8    Director of State Police shall issue rules as  are  necessary
 9    concerning  the use of devices, retention of tape recordings,
10    and reports regarding their use.
11        Any recording or evidence  obtained  or  derived  in  the
12    course  of an investigation of any offense defined in Article
13    29D of this Code shall, upon motion of the  State's  Attorney
14    or Attorney General prosecuting any violation of Article 29D,
15    be  reviewed  in camera with notice to all parties present by
16    the court presiding over the criminal case, and, if ruled  by
17    the  court  to be relevant and otherwise admissible, it shall
18    be admissible at the trial of the criminal case.
19        This subsection (g-5) is inoperative on and after January
20    1, 2005. No conversations recorded or monitored  pursuant  to
21    this subsection (g-5) shall be inadmissable in a court of law
22    by  virtue  of the repeal of this subsection (g-5) on January
23    1, 2005;.
24        (h)  Recordings  made   simultaneously   with   a   video
25    recording  of  an  oral conversation between a peace officer,
26    who has identified his or her office, and  a  person  stopped
27    for an investigation of an offense under the Illinois Vehicle
28    Code;
29        (i)  Recording  of  a  conversation  made  by  or  at the
30    request of a person, not a law enforcement officer  or  agent
31    of  a  law  enforcement  officer,  who  is  a  party  to  the
32    conversation,  under  reasonable suspicion that another party
33    to the conversation is committing, is about to commit, or has
34    committed a criminal offense against the person or  a  member
 
                            -8-      LRB093 08570 RLC 08796 b
 1    of  his  or  her  immediate household, and there is reason to
 2    believe that evidence of the criminal offense may be obtained
 3    by the recording; and
 4        (j)  The use of a telephone monitoring device  by  either
 5    (1)  a  corporation  or  other  business  entity  engaged  in
 6    marketing  or  opinion research or (2) a corporation or other
 7    business entity engaged in telephone solicitation, as defined
 8    in this subsection, to record or  listen  to  oral  telephone
 9    solicitation  conversations  or marketing or opinion research
10    conversations by an employee  of  the  corporation  or  other
11    business entity when:
12             (i)  the  monitoring  is  used  for  the  purpose of
13        service quality control of marketing or opinion  research
14        or  telephone  solicitation, the education or training of
15        employees or contractors engaged in marketing or  opinion
16        research  or telephone solicitation, or internal research
17        related to marketing or  opinion  research  or  telephone
18        solicitation; and
19             (ii)  the  monitoring is used with the consent of at
20        least one person who is an active party to the  marketing
21        or    opinion    research   conversation   or   telephone
22        solicitation conversation being monitored.
23        No communication or conversation or any part, portion, or
24    aspect of the communication or conversation  made,  acquired,
25    or  obtained,  directly  or  indirectly, under this exemption
26    (j), may be, directly or indirectly,  furnished  to  any  law
27    enforcement  officer,  agency, or official for any purpose or
28    used in any inquiry or investigation, or  used,  directly  or
29    indirectly,   in   any  administrative,  judicial,  or  other
30    proceeding, or divulged to any third party.
31        When recording or listening authorized by this subsection
32    (j) on telephone lines used for marketing or opinion research
33    or telephone solicitation purposes results  in  recording  or
34    listening to a conversation that does not relate to marketing
 
                            -9-      LRB093 08570 RLC 08796 b
 1    or  opinion  research  or  telephone solicitation; the person
 2    recording or listening shall,  immediately  upon  determining
 3    that the conversation does not relate to marketing or opinion
 4    research  or  telephone solicitation, terminate the recording
 5    or listening and destroy any such recording  as  soon  as  is
 6    practicable.
 7        Business  entities  that  use  a  telephone monitoring or
 8    telephone recording system pursuant  to  this  exemption  (j)
 9    shall  provide  current and prospective employees with notice
10    that the monitoring or recordings may occur during the course
11    of their employment.   The  notice  shall  include  prominent
12    signage notification within the workplace.
13        Business  entities  that  use  a  telephone monitoring or
14    telephone recording system pursuant  to  this  exemption  (j)
15    shall  provide  their  employees  or  agents  with  access to
16    personal-only telephone lines which may  be  pay  telephones,
17    that  are  not  subject  to telephone monitoring or telephone
18    recording.
19        For the  purposes  of  this  subsection  (j),  "telephone
20    solicitation"  means  a  communication  through  the use of a
21    telephone by live operators:
22             (i)  soliciting the sale of goods or services;
23             (ii)  receiving orders for  the  sale  of  goods  or
24        services;
25             (iii)  assisting in the use of goods or services; or
26             (iv)  engaging  in the solicitation, administration,
27        or collection of bank or retail credit accounts.
28        For the purposes of this subsection  (j),  "marketing  or
29    opinion  research"  means  a  marketing  or  opinion research
30    interview conducted by a live telephone  interviewer  engaged
31    by  a  corporation  or  other business entity whose principal
32    business is the design, conduct, and analysis  of  polls  and
33    surveys  measuring  the opinions, attitudes, and responses of
34    respondents  toward  products  and  services,  or  social  or
 
                            -10-     LRB093 08570 RLC 08796 b
 1    political issues, or both;.
 2        (k)  Electronic recordings, including but not limited to,
 3    a motion  picture,  videotape,  or  other  visual  and  audio
 4    recording, made of a custodial interrogation of an individual
 5    at  a  police  station  or  other place of detention by a law
 6    enforcement officer under Section  5-401.5  of  the  Juvenile
 7    Court  Act of 1987 or Section 103-2.1 of the Code of Criminal
 8    Procedure of 1963; and
 9        (l)  With prior notification to and  verbal  approval  of
10    the  State's Attorney or his or her designee of the county in
11    which the conversation is anticipated to occur, recording  or
12    listening  with  the  aid  of  an  eavesdropping  device to a
13    conversation in which  a  law  enforcement  officer,  or  any
14    person  acting at the direction of a law enforcement officer,
15    is a party to an undercover conversation and has consented to
16    the conversation being intercepted or recorded in the  course
17    of  an  investigation  of  a felony violation of the Illinois
18    Controlled Substances  Act  or  a  felony  violation  of  the
19    Cannabis  Control  Act.  The  Director of  State Police shall
20    adopt any necessary rules  concerning  the  use  of  devices,
21    retention  of  recording  media,  and reports regarding their
22    use.
23    (Source: P.A. 91-357, eff. 7-29-99; 92-854, eff. 12-5-02.)

24        Section 20.  The Code of Criminal Procedure  of  1963  is
25    amended by adding Section 103-2.1 as follows:

26        (725 ILCS 5/103-2.1 new)
27        Sec. 103-2.1.  When statements by accused may be used.
28        (a)  In this Section, "custodial interrogation" means any
29    interrogation  during  which  (i)  a reasonable person in the
30    subject's position, innocent of  any  crime,  would  consider
31    himself  or  herself to be in custody and (ii) during which a
32    question is asked that is  reasonably  likely  to  elicit  an
 
                            -11-     LRB093 08570 RLC 08796 b
 1    incriminating response.
 2        In  this  Section,  "place of detention" means a building
 3    under the control  of  a  law  enforcement  agency  at  which
 4    persons  are  or  may be held in detention in connection with
 5    criminal charges against those persons.
 6        In this Section, "electronic recording"  includes  motion
 7    picture, audiotape, or videotape.
 8        (b) An oral or sign language statement of an accused made
 9    as  a result of a custodial interrogation at a police station
10    or  other  place  of  detention  shall  be  presumed  to   be
11    inadmissible  as evidence against the accused in any criminal
12    proceeding brought under Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3,
13    9-3.2, 9-3.3, 12-13, 12-14, 12-14.1, 12-15, or 12-16  of  the
14    Criminal Code of 1961 unless:
15             (1) an electronic recording is made of the custodial
16        interrogation;
17             (2)  the  recording  is  accurate  and  has not been
18        altered; and
19             (3) not later than the 20th day before the  date  of
20        any  criminal  proceeding at which the statement is to be
21        offered as evidence against the defendant,  the  attorney
22        representing the defendant is permitted to review a true,
23        complete,  and  accurate  copy  of  all recordings of the
24        defendant made under this Section.
25        (c) Every electronic recording of any statement  made  by
26    an  accused  during  a  custodial  interrogation  at a police
27    station or other place of detention must be  preserved  until
28    such  time  as  the  defendant's  conviction  for any offense
29    relating to the statement is final and all direct and  habeas
30    corpus  appeals  are  exhausted,  or  the prosecution of such
31    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 at a police station or other place of detention
 
                            -12-     LRB093 08570 RLC 08796 b
 1    prior to the custodial interrogation at a police  station  or
 2    other place of detention and after the effective date of this
 3    amendatory  Act  of  the  93rd  General Assembly that was the
 4    subject of  the  electronic  recording,  and  if  that  prior
 5    custodial interrogation at a police station or other place of
 6    detention  relating  to  the same offense was not recorded as
 7    required by this Section, then any  statements  made  by  the
 8    defendant  during  or  following  that non-recorded custodial
 9    interrogation  at  a  police  station  or  other   place   of
10    detention, even if otherwise in compliance with this Section,
11    are  presumed  to  be inadmissible in any criminal proceeding
12    against the defendant except for the purposes of impeachment.
13        (e) Nothing in this Section precludes the  admission  (i)
14    of  a  statement  made by the accused in open court at his or
15    her trial, before a grand jury, or at a preliminary  hearing,
16    (ii)  of  a  statement  made during a custodial interrogation
17    that was not recorded as required by  this  Section,  because
18    electronic  recording  was not feasible, (iii) of a voluntary
19    statement,  whether  or  not  the  result  of   a   custodial
20    interrogation,  that  has a bearing on the credibility of the
21    accused as a witness, (iv) of a statement made under  exigent
22    circumstances,  (v)  of  a  spontaneous statement that is not
23    made in response to a question,  (vi)  of  a  statement  made
24    after   questioning   that  is  routinely  asked  during  the
25    processing of the arrest of the suspect, (vii) of a statement
26    made during  a  custodial  interrogation  by  a  suspect  who
27    agrees,  prior  to  making  the  statement, to respond to the
28    interrogator's questions only if an electronic  recording  is
29    not  made  of  the  statement,  provided  that  an electronic
30    recording is made of the statement of agreeing to respond  to
31    the  interrogator's question, only if a recording is not made
32    of the  statement,  (viii)  of  a  statement  made  during  a
33    custodial  interrogation that is conducted out-of-state, (ix)
34    of a statement made by a suspect who  is  being  interrogated
 
                            -13-     LRB093 08570 RLC 08796 b
 1    simultaneously   with  other  suspects  concerning  the  same
 2    offense, but only to the extent that no electronic  recording
 3    equipment  (video  or audio) is available because it is being
 4    utilized for the interrogations of the other suspects for the
 5    same offense, (x) of a statement given at  a  time  when  the
 6    interrogators  are  unaware  that a death or an act of sexual
 7    assault or sexual conduct has in fact occurred,  or  (xi)  of
 8    any  other  statement  that may be admissible under law.  The
 9    State shall bear the burden of proving, by a preponderance of
10    the evidence, that one of the exceptions  described  in  this
11    subsection  (e)  is  applicable.    Nothing  in  this Section
12    precludes   the   admission   of   a   statement,   otherwise
13    inadmissible under  this  Section,  that  is  used  only  for
14    impeachment and not as substantive evidence.
15        (f)  The  presumption  of  inadmissibility of a statement
16    made by  a  suspect  at  a  custodial  interrogation  may  be
17    overcome   by  a  preponderance  of  the  evidence  that  the
18    statement was voluntarily given and is reliable, based on the
19    totality of the circumstances.

20        Section 95.  The State Mandates Act is amended by  adding
21    Section 8.27 as follows:

22        (30 ILCS 805/8.27 new)
23        Sec.  8.27.  Exempt  mandate.  Notwithstanding Sections 6
24    and 8 of this Act, no reimbursement by the State is  required
25    for  the  implementation  of  any  mandate  created  by  this
26    amendatory Act of the 93rd General Assembly.

27        Section  99.   Effective date.  Sections 2, 5, 15, and 95
28    of this Act and this Section 99  take  effect  upon  becoming
29    law.   Sections  10  and  20  of this Act take effect 2 years
30    after becoming law.
 
                            -14-     LRB093 08570 RLC 08796 b
 1                                INDEX
 2               Statutes amended in order of appearance
 3    20 ILCS 3930/7.5 new
 4    50 ILCS 705/10.3 new
 5    705 ILCS 405/5-401.5 new
 6    720 ILCS 5/14-3           from Ch. 38, par. 14-3
 7    725 ILCS 5/103-2.1 new
 8    30 ILCS 805/8.27 new