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Full Text of SB1825  102nd General Assembly

SB1825 102ND GENERAL ASSEMBLY

  
  

 


 
102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
SB1825

 

Introduced 2/26/2021, by Sen. Patricia Van Pelt

 

SYNOPSIS AS INTRODUCED:
 
705 ILCS 405/5-170
705 ILCS 405/5-401.5
725 ILCS 5/103-2.1

    Amends the Juvenile Court Act of 1987 and the Code of Criminal Procedure of 1963. Provides that a minor who was under 18 at the time of the commission of any offense (currently, specified offenses), including criminal proceedings under the Criminal Code of 2012, must be represented by counsel throughout the entire 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 in any juvenile court proceeding or criminal proceeding against the minor.


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FISCAL NOTE ACT MAY APPLY
STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT

 

 

A BILL FOR

 

SB1825LRB102 15353 KMF 20713 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Juvenile Court Act of 1987 is amended by
5changing Sections 5-170 and 5-401.5 as follows:
 
6    (705 ILCS 405/5-170)
7    Sec. 5-170. Representation by counsel.
8    (a) In a proceeding under this Article, a minor who was
9under 18 15 years of age at the time of the commission of any
10offense an act that if committed by an adult would be a
11violation of Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2,
129-3.3, 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-13,
1312-14, 12-14.1, 12-15, or 12-16 of the Criminal Code of 1961 or
14the Criminal Code of 2012 must be represented by counsel
15throughout the entire custodial interrogation of the minor.
16    (b) In a judicial proceeding under this Article, a minor
17may not waive the right to the assistance of counsel in his or
18her defense.
19(Source: P.A. 99-882, eff. 1-1-17.)
 
20    (705 ILCS 405/5-401.5)
21    Sec. 5-401.5. When statements by minor may be used.
22    (a) In this Section, "custodial interrogation" means any

 

 

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1interrogation (i) during which a reasonable person in the
2subject's position would consider himself or herself to be in
3custody and (ii) during which a question is asked that is
4reasonably likely to elicit an incriminating response.
5    In this Section, "electronic recording" includes motion
6picture, audiotape, videotape, or digital recording.
7    In this Section, "place of detention" means a building or
8a police station that is a place of operation for a municipal
9police department or county sheriff department or other law
10enforcement agency at which persons are or may be held in
11detention in connection with criminal charges against those
12persons or allegations that those persons are delinquent
13minors.
14    (a-5) An oral, written, or sign language statement of a
15minor, who at the time of the commission of the offense was
16under 18 years of age, is presumed to be inadmissible when the
17statement is obtained from the minor while the minor is
18subject to custodial interrogation by a law enforcement
19officer, State's Attorney, juvenile officer, or other public
20official or employee prior to the officer, State's Attorney,
21public official, or employee:
22        (1) continuously reads to the minor, in its entirety
23    and without stopping for purposes of a response from the
24    minor or verifying comprehension, the following statement:
25    "You have the right to remain silent. That means you do not
26    have to say anything. Anything you do say can be used

 

 

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1    against you in court. You have the right to get help from a
2    lawyer. If you cannot pay for a lawyer, the court will get
3    you one for free. You can ask for a lawyer at any time. You
4    have the right to stop this interview at any time."; and
5        (2) after reading the statement required by paragraph
6    (1) of this subsection (a-5), the public official or
7    employee shall ask the minor the following questions and
8    wait for the minor's response to each question:
9            (A) "Do you want to have a lawyer?"
10            (B) "Do you want to talk to me?"
11    (b) An oral, written, or sign language statement of a
12minor who, at the time of the commission of the offense was
13under the age of 18 years, made as a result of a custodial
14interrogation conducted at a police station or other place of
15detention on or after the effective date of this amendatory
16Act of the 99th General Assembly shall be presumed to be
17inadmissible as evidence against the minor in any criminal
18proceeding or juvenile court proceeding, for an act that if
19committed by an adult would be a misdemeanor offense under
20Article 11 of the Criminal Code of 2012 or any felony offense
21unless:
22        (1) an electronic recording is made of the custodial
23    interrogation; and
24        (2) the recording is substantially accurate and not
25    intentionally altered.
26    (b-5) (Blank).

 

 

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

 

 

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

 

 

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1of the statement, (vii) of a statement made during a custodial
2interrogation that is conducted out-of-state, (viii) of a
3statement given in violation of subsection (b) at a time when
4the interrogators are unaware that a death has in fact
5occurred, (ix) (blank), or (x) of any other statement that may
6be admissible under law. The State shall bear the burden of
7proving, by a preponderance of the evidence, that one of the
8exceptions described in this subsection (e) is applicable.
9Nothing in this Section precludes the admission of a
10statement, otherwise inadmissible under this Section, that is
11used only for impeachment and not as substantive evidence.
12    (f) The presumption of inadmissibility of a statement made
13by a suspect at a custodial interrogation at a police station
14or other place of detention may be overcome by a preponderance
15of the evidence that the statement was voluntarily given and
16is reliable, based on the totality of the circumstances.
17    (g) Any electronic recording of any statement made by a
18minor during a custodial interrogation that is compiled by any
19law enforcement agency as required by this Section for the
20purposes of fulfilling the requirements of this Section shall
21be confidential and exempt from public inspection and copying,
22as provided under Section 7 of the Freedom of Information Act,
23and the information shall not be transmitted to anyone except
24as needed to comply with this Section.
25    (h) A statement, admission, confession, or incriminating
26information made by or obtained from a minor related to the

 

 

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1instant offense, as part of any behavioral health screening,
2assessment, evaluation, or treatment, whether or not
3court-ordered, shall not be admissible as evidence against the
4minor on the issue of guilt only in the instant juvenile court
5proceeding. The provisions of this subsection (h) are in
6addition to and do not override any existing statutory and
7constitutional prohibition on the admission into evidence in
8delinquency proceedings of information obtained during
9screening, assessment, or treatment.
10    (i) The changes made to this Section by Public Act 98-61
11apply to statements of a minor made on or after January 1, 2014
12(the effective date of Public Act 98-61).
13(Source: P.A. 98-61, eff. 1-1-14; 98-547, eff. 1-1-14; 98-756,
14eff. 7-16-14; 99-882, eff. 1-1-17.)
 
15    Section 10. The Code of Criminal Procedure of 1963 is
16amended by changing Section 103-2.1 as follows:
 
17    (725 ILCS 5/103-2.1)
18    Sec. 103-2.1. When statements by accused may be used.
19    (a) In this Section, "custodial interrogation" means any
20interrogation during which (i) a reasonable person in the
21subject's position would consider himself or herself to be in
22custody and (ii) during which a question is asked that is
23reasonably likely to elicit an incriminating response.
24    In this Section, "place of detention" means a building or

 

 

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1a police station that is a place of operation for a municipal
2police department or county sheriff department or other law
3enforcement agency, not a courthouse, that is owned or
4operated by a law enforcement agency at which persons are or
5may be held in detention in connection with criminal charges
6against those persons.
7    In this Section, "electronic recording" includes motion
8picture, audiotape, or videotape, or digital recording.
9    (a-5) An oral, written, or sign language statement of a
10minor, who at the time of the commission of the offense was
11under 18 years of age, is presumed to be inadmissible when the
12statement is obtained from the minor while the minor is
13subject to custodial interrogation by a law enforcement
14officer, State's Attorney, juvenile officer, or other public
15official or employee prior to the officer, State's Attorney,
16public official, or employee:
17        (1) continuously reads to the minor, in its entirety
18    and without stopping for purposes of a response from the
19    minor or verifying comprehension, the following statement:
20    "You have the right to remain silent. That means you do not
21    have to say anything. Anything you do say can be used
22    against you in court. You have the right to get help from a
23    lawyer. If you cannot pay for a lawyer, the court will get
24    you one for free. You can ask for a lawyer at any time. You
25    have the right to stop this interview at any time."; and
26        (2) after reading the statement required by paragraph

 

 

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1    (1) of this subsection (a-5), the public official or
2    employee shall ask the minor the following questions and
3    wait for the minor's response to each question:
4            (A) "Do you want to have a lawyer?"
5            (B) "Do you want to talk to me?"
6    (a-10) An oral, written, or sign language statement of a
7minor, who at the time of the commission of the offense was
8under 18 years of age, made as a result of a custodial
9interrogation conducted at a police station or other place of
10detention on or after the effective date of this amendatory
11Act of the 99th General Assembly shall be presumed to be
12inadmissible as evidence in a criminal proceeding or a
13juvenile court proceeding for an act that if committed by an
14adult would be a misdemeanor offense under Article 11 of the
15Criminal Code of 2012 or a felony offense under the Criminal
16Code of 2012 unless:
17        (1) an electronic recording is made of the custodial
18    interrogation; and
19        (2) the recording is substantially accurate and not
20    intentionally altered.
21    (b) An oral, written, or sign language statement of an
22accused made as a result of a custodial interrogation
23conducted at a police station or other place of detention
24shall be presumed to be inadmissible as evidence against the
25accused in any criminal proceeding brought under Section 9-1,
269-1.2, 9-2, 9-2.1, 9-3, 9-3.2, or 9-3.3 of the Criminal Code of

 

 

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11961 or the Criminal Code of 2012 or under clause (d)(1)(F) of
2Section 11-501 of the Illinois Vehicle Code unless:
3        (1) an electronic recording is made of the custodial
4    interrogation; and
5        (2) the recording is substantially accurate and not
6    intentionally altered.
7    (b-5) Under the following circumstances, an oral, written,
8or sign language statement of an accused made as a result of a
9custodial interrogation conducted at a police station or other
10place of detention shall be presumed to be inadmissible as
11evidence against the accused, unless an electronic recording
12is made of the custodial interrogation and the recording is
13substantially accurate and not intentionally altered:
14        (1) in any criminal proceeding brought under Section
15    11-1.40 or 20-1.1 of the Criminal Code of 1961 or the
16    Criminal Code of 2012, if the custodial interrogation was
17    conducted on or after June 1, 2014;
18        (2) in any criminal proceeding brought under Section
19    10-2, 18-4, or 19-6 of the Criminal Code of 1961 or the
20    Criminal Code of 2012, if the custodial interrogation was
21    conducted on or after June 1, 2015; and
22        (3) in any criminal proceeding brought under Section
23    11-1.30 or 18-2 or subsection (e) of Section 12-3.05 of
24    the Criminal Code of 1961 or the Criminal Code of 2012, if
25    the custodial interrogation was conducted on or after June
26    1, 2016.

 

 

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1    (b-10) If, during the course of an electronically recorded
2custodial interrogation conducted under this Section, the
3accused makes a statement that creates a reasonable suspicion
4to believe the accused has committed an offense other than an
5offense required to be recorded under subsection (b) or (b-5),
6the interrogators may, without the accused's consent, continue
7to record the interrogation as it relates to the other offense
8notwithstanding any provision of law to the contrary. Any
9oral, written, or sign language statement of an accused made
10as a result of an interrogation under this subsection shall be
11presumed to be inadmissible as evidence against the accused in
12any criminal proceeding, unless the recording is substantially
13accurate and not intentionally altered.
14    (b-15) In a criminal proceeding brought under the Criminal
15Code of 2012, a minor who was under 18 years of age at the time
16of the commission of the offense must be represented by
17counsel throughout the entire custodial interrogation of the
18minor.
19    (c) Every electronic recording made under this Section
20must be preserved until such time as the defendant's
21conviction for any offense relating to the statement is final
22and all direct and habeas corpus appeals are exhausted, or the
23prosecution of such offenses is barred by law.
24    (d) If the court finds, by a preponderance of the
25evidence, that the defendant was subjected to a custodial
26interrogation in violation of this Section, then any

 

 

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1statements made by the defendant during or following that
2non-recorded custodial interrogation, even if otherwise in
3compliance with this Section, are presumed to be inadmissible
4in any criminal proceeding against the defendant except for
5the purposes of impeachment.
6    (e) Nothing in this Section precludes the admission (i) of
7a statement made by the accused in open court at his or her
8trial, before a grand jury, or at a preliminary hearing, (ii)
9of a statement made during a custodial interrogation that was
10not recorded as required by this Section, because electronic
11recording was not feasible, (iii) of a voluntary statement,
12whether or not the result of a custodial interrogation, that
13has a bearing on the credibility of the accused as a witness,
14(iv) of a spontaneous statement that is not made in response to
15a question, (v) of a statement made after questioning that is
16routinely asked during the processing of the arrest of the
17suspect, (vi) of a statement made during a custodial
18interrogation by a suspect who requests, prior to making the
19statement, to respond to the interrogator's questions only if
20an electronic recording is not made of the statement, provided
21that an electronic recording is made of the statement of
22agreeing to respond to the interrogator's question, only if a
23recording is not made of the statement, (vii) of a statement
24made during a custodial interrogation that is conducted
25out-of-state, (viii) of a statement given in violation of
26subsection (b) at a time when the interrogators are unaware

 

 

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1that a death has in fact occurred, (ix) of a statement given in
2violation of subsection (b-5) at a time when the interrogators
3are unaware of facts and circumstances that would create
4probable cause to believe that the accused committed an
5offense required to be recorded under subsection (b-5), or (x)
6of any other statement that may be admissible under law. The
7State shall bear the burden of proving, by a preponderance of
8the evidence, that one of the exceptions described in this
9subsection (e) is applicable. Nothing in this Section
10precludes the admission of a statement, otherwise inadmissible
11under this Section, that is used only for impeachment and not
12as substantive evidence.
13    (f) The presumption of inadmissibility of a statement made
14by a suspect at a custodial interrogation at a police station
15or other place of detention may be overcome by a preponderance
16of the evidence that the statement was voluntarily given and
17is reliable, based on the totality of the circumstances.
18    (g) Any electronic recording of any statement made by an
19accused during a custodial interrogation that is compiled by
20any law enforcement agency as required by this Section for the
21purposes of fulfilling the requirements of this Section shall
22be confidential and exempt from public inspection and copying,
23as provided under Section 7 of the Freedom of Information Act,
24and the information shall not be transmitted to anyone except
25as needed to comply with this Section.
26(Source: P.A. 98-547, eff. 1-1-14; 99-882, eff. 1-1-17.)