Illinois-2023-SB3321-Introduced

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.

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A BILL FOR

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1 AN ACT concerning courts.

2 Be it enacted by the People of the State of Illinois,

3 represented in the General Assembly:

4 Section 5. The Counties Code is amended by changing

5 Section 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

8 Defender, as directed by the court, shall act as attorney,

9 without fee, before any court within any county for all

10 persons who are held in custody or who are charged with the

11 commission of any criminal offense, and who the court finds

12 are unable to employ counsel.

13 The Public Defender shall be the attorney, without fee,

14 when so appointed by the court under Section 1-5 of the

15 Juvenile Court Act of 1987.

16 In cases subject to Section 5-170 of the Juvenile Court

17 Act of 1987 or subsection (a-5) of Section 103-2.1 of the Code

18 of Criminal Procedure of 1963 involving a minor who was under

19 18 ~~15~~ years of age at the time of the commission of the

20 offense, that occurs in a county with a full-time public

21 defender office, a public defender, without fee or

22 appointment, may represent and have access to a minor during a

23 custodial interrogation. In cases subject to Section 5-170 of

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1 the Juvenile Court Act of 1987 or subsection (a-5) of Section

2 103-2.1 of the Code of Criminal Procedure of 1963 involving a

3 minor who was under 18 ~~15~~ years of age at the time of the

4 commission of the offense, that occurs in a county without a

5 full-time public defender, the law enforcement agency

6 conducting the custodial interrogation shall ensure that the

7 minor is able to consult with an attorney who is under contract

8 with the county to provide public defender services.

9 Representation by the public defender shall terminate at the

10 first court appearance if the court determines that the minor

11 is not indigent.

12 Every court shall, with the consent of the defendant and

13 where the court finds that the rights of the defendant would be

14 prejudiced by the appointment of the public defender, appoint

15 counsel other than the public defender, except as otherwise

16 provided in Section 113-3 of the "Code of Criminal Procedure

17 of 1963". That counsel shall be compensated as is provided by

18 law. He shall also, in the case of the conviction of any such

19 person, prosecute any proceeding in review which in his

20 judgment the interests of justice require.

21 In counties with a population over 3,000,000, the public

22 defender, without fee or appointment and with the concurrence

23 of the county board, may act as attorney to noncitizens in

24 immigration cases. Representation by the public defender in

25 immigration cases shall be limited to those arising in

26 immigration courts located within the geographical boundaries

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1 of the county where the public defender has been appointed to

2 office unless the board authorizes the public defender to

3 provide 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

6 changing 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

10 under 18 ~~15~~ years of age at the time of the commission of an

11 act that if committed by an adult would be a violation of any

12 offense ~~Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, 9-3.3,~~

13 ~~11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14,~~

14 ~~12-14.1, 12-15, or 12-16~~ of the Criminal Code of 1961 or the

15 Criminal Code of 2012 must be represented by counsel

16 throughout the entire custodial interrogation of the minor. In

17 custodial interrogations, a minor may not waive the right to

18 the assistance of counsel.

19 (b) In a judicial proceeding under this Article, a minor

20 may not waive the right to the assistance of counsel in the

21 minor'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

3 interrogation (i) during which a reasonable person in the

4 subject's position would consider the subject to be in custody

5 and (ii) during which a question is asked that is reasonably

6 likely to elicit an incriminating response.

7 In this Section, "electronic recording" includes motion

8 picture, audiotape, videotape, or digital recording.

9 In this Section, "place of detention" means a building or

10 a police station that is a place of operation for a municipal

11 police department or county sheriff department or other law

12 enforcement agency at which persons are or may be held in

13 detention in connection with criminal charges against those

14 persons or allegations that those persons are delinquent

15 minors.

16 (a-5) An oral, written, or sign language statement of a

17 minor, who at the time of the commission of the offense was

18 under 18 years of age, is presumed to be inadmissible when the

19 statement is obtained from the minor while the minor is

20 subject to custodial interrogation by a law enforcement

21 officer, State's Attorney, juvenile officer, or other public

22 official or employee prior to the officer, State's Attorney,

23 public 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

18 minor who, at the time of the commission of the offense was

19 under the age of 18 years, made as a result of a custodial

20 interrogation conducted at a police station or other place of

21 detention on or after the effective date of this amendatory

22 Act of the 99th General Assembly shall be presumed to be

23 inadmissible as evidence against the minor in any criminal

24 proceeding or juvenile court proceeding, for an act that if

25 committed by an adult would be a misdemeanor offense under

26 Article 11 of the Criminal Code of 2012 or any felony offense

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1 unless:

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

8 custodial interrogation conducted under this Section of a

9 minor who, at the time of the commission of the offense was

10 under the age of 18 years, the minor makes a statement that

11 creates a reasonable suspicion to believe the minor has

12 committed an act that if committed by an adult would be an

13 offense other than an offense required to be recorded under

14 subsection (b), the interrogators may, without the minor's

15 consent, continue to record the interrogation as it relates to

16 the other offense notwithstanding any provision of law to the

17 contrary. Any oral, written, or sign language statement of a

18 minor made as a result of an interrogation under this

19 subsection shall be presumed to be inadmissible as evidence

20 against the minor in any criminal proceeding or juvenile court

21 proceeding, unless the recording is substantially accurate and

22 not intentionally altered.

23 (c) Every electronic recording made under this Section

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

25 for any offense relating to the statement is final and all

26 direct and habeas corpus appeals are exhausted, or the

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1 prosecution of such offenses is barred by law.

2 (d) If the court finds, by a preponderance of the

3 evidence, that the minor was subjected to a custodial

4 interrogation in violation of this Section, then any

5 statements made by the minor during or following that

6 non-recorded custodial interrogation, even if otherwise in

7 compliance with this Section, are presumed to be inadmissible

8 in any criminal proceeding or juvenile court proceeding

9 against the minor except for the purposes of impeachment.

10 (d-5) An oral, written, or sign language statement of a

11 minor made without counsel present throughout the entire

12 custodial interrogation of the minor shall be inadmissible as

13 evidence against the minor in any juvenile court proceeding or

14 criminal proceeding.

15 (e) Nothing in this Section precludes the admission (i) of

16 a statement made by the minor in open court in any criminal

17 proceeding or juvenile court proceeding, before a grand jury,

18 or at a preliminary hearing, (ii) of a statement made during a

19 custodial interrogation that was not recorded as required by

20 this Section because electronic recording was not feasible,

21 (iii) of a voluntary statement, whether or not the result of a

22 custodial interrogation, that has a bearing on the credibility

23 of the accused as a witness, (iv) of a spontaneous statement

24 that is not made in response to a question, (v) of a statement

25 made after questioning that is routinely asked during the

26 processing of the arrest of the suspect, (vi) of a statement

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1 made during a custodial interrogation by a suspect who

2 requests, prior to making the statement, to respond to the

3 interrogator's questions only if an electronic recording is

4 not made of the statement, provided that an electronic

5 recording is made of the statement of agreeing to respond to

6 the interrogator's question, only if a recording is not made

7 of the statement, (vii) of a statement made during a custodial

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

9 statement given in violation of subsection (b) at a time when

10 the interrogators are unaware that a death has in fact

11 occurred, (ix) (blank), or (x) of any other statement that may

12 be admissible under law. The State shall bear the burden of

13 proving, by a preponderance of the evidence, that one of the

14 exceptions described in this subsection (e) is applicable.

15 Nothing in this Section precludes the admission of a

16 statement, otherwise inadmissible under this Section, that is

17 used only for impeachment and not as substantive evidence.

18 (f) (Blank). ~~The presumption of inadmissibility of a~~

19 ~~statement made by a suspect at a custodial interrogation at a~~

20 ~~police station or other place of detention may be overcome by a~~

21 ~~preponderance of the evidence that the statement was~~

22 ~~voluntarily given and is reliable, based on the totality of~~

23 ~~the circumstances.~~

24 (g) Any electronic recording of any statement made by a

25 minor during a custodial interrogation that is compiled by any

26 law enforcement agency as required by this Section for the

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