(725 ILCS 5/Tit. VI heading)
(725 ILCS 5/Art. 115 heading)
(725 ILCS 5/115-1) (from Ch. 38, par. 115-1)
Sec. 115-1.
Method of Trial.
All prosecutions except on a plea of guilty
or guilty but mentally ill shall be tried by the court and a jury unless
the defendant waives a jury trial in writing.
(Source: P.A. 87-410.)
(725 ILCS 5/115-1.5)
Sec. 115-1.5. Waiver of counsel by persons under 17 years of age prohibited. A person under 17 years of age may not waive the right to the assistance of counsel in his or her defense in any judicial proceeding. This Section does not apply to a minor charged with an offense for which the penalty is a fine only. Except for violations of Sections 11-401, 11-402, 11-501, and 11-503 of the Illinois Vehicle Code, this Section does not apply to proceedings involving violations of the Illinois Vehicle Code.
(Source: P.A. 94-345, eff. 7-26-05.)
(725 ILCS 5/115-2) (from Ch. 38, par. 115-2)
Sec. 115-2.
Pleas of Guilty and guilty but mentally ill.
(a) Before
or during trial a plea of guilty
may be accepted when:
(1) The defendant enters a plea of guilty in open court;
(2) The court has informed the defendant of the consequences of his plea
and of the maximum penalty provided by law which may be imposed upon
acceptance of such plea.
Upon acceptance of a plea of guilty the court shall determine
the factual basis for the plea.
(b) Before or during trial a plea of guilty but mentally ill may be
accepted by the court when:
(1) the defendant has undergone an examination by a clinical psychologist
or psychiatrist
and has waived his right to trial; and
(2) the judge has examined the psychiatric or psychological report or reports; and
(3) the judge has held a hearing, at which either party may present evidence,
on the issue of the defendant's mental health and, at the conclusion of
such hearing, is satisfied that there is a factual basis that the defendant
was mentally ill at the time of the offense to which the plea is entered.
(Source: P.A. 82-553.)
(725 ILCS 5/115-3) (from Ch. 38, par. 115-3)
Sec. 115-3. Trial by the Court.
(a) A trial shall be conducted in
the presence of the defendant unless he waives the right to be present.
(b) Upon conclusion of the trial the court shall enter a general
finding, except that, when the affirmative defense of insanity has been
presented during the trial and acquittal is based solely upon the
defense of insanity, the court shall enter a finding of not guilty by
reason of insanity. In the event of a finding of not guilty by reason
of insanity, a hearing shall be held pursuant to the Mental Health and
Developmental Disabilities Code to determine whether the defendant is
subject to involuntary admission.
(c) When the defendant has asserted a defense of insanity, the court
may find the defendant guilty but mentally ill if, after hearing all of
the evidence, the court finds that:
(Source: P.A. 97-1150, eff. 1-25-13.)
(725 ILCS 5/115-4) (from Ch. 38, par. 115-4)
Sec. 115-4. Trial by Court and Jury.)
(a) Questions of law shall be
decided by the court and questions of fact by the jury.
(b) The jury shall consist of 12 members.
(c) Upon request the parties shall be furnished with a list of
prospective jurors with their addresses if known.
(d) Each party may challenge jurors for cause.
If a prospective juror has a physical impairment, the court shall consider
such prospective juror's ability to perceive and appreciate the evidence
when considering a challenge for cause.
(e) A defendant tried alone shall be allowed 20 peremptory
challenges in a capital case, 10 in a case in which the punishment may
be imprisonment in the penitentiary, and 5 in all other cases; except
that, in a single trial of more than one defendant, each defendant shall
be allowed 12 peremptory challenges in a capital case, 6 in a case in
which the punishment may be imprisonment in the penitentiary, and 3 in
all other cases. If several charges against a defendant or defendants
are consolidated for trial, each defendant shall be allowed peremptory
challenges upon one charge only, which single charge shall be the charge
against that defendant authorizing the greatest maximum penalty. The
State shall be allowed the same number of peremptory challenges as all
of the defendants.
(f) After examination by the court the jurors may be examined,
passed upon, accepted and tendered by opposing counsel as provided by
Supreme Court rules.
(g) After the jury is impaneled and sworn the court may direct the
selection of 2 alternate jurors who shall take the same oath as the
regular jurors. Each party shall have one additional peremptory
challenge for each alternate juror. If before the final submission of a
cause a member of the jury dies or is discharged he shall be replaced by
an alternate juror in the order of selection.
(h) A trial by the court and jury shall be conducted in the presence
of the defendant unless he waives the right to be present.
(i) After arguments of counsel the court shall instruct the jury as
to the law.
(j) Unless the affirmative defense of insanity has been presented
during the trial, the jury shall return a general verdict as to each
offense charged. When the affirmative defense of insanity has been
presented during the trial, the court shall provide the jury not only
with general verdict forms but also with a special verdict form of not
guilty by reason of insanity, as to each offense charged, and in such
event the court shall separately instruct the jury that a special verdict
of not guilty by reason of insanity may be returned instead of a general
verdict but such special verdict requires a unanimous finding by the jury
that the defendant committed the acts charged but at the time of the
commission of those acts the defendant was insane. In the event of a
verdict of not guilty by reason of insanity, a hearing shall be held
pursuant to the Mental Health and Developmental Disabilities Code to
determine whether the defendant is subject to involuntary admission.
When the affirmative defense of insanity has been presented during the trial,
the court, where warranted by the evidence, shall also provide the jury
with a special verdict form of guilty but mentally ill, as to each offense
charged and shall separately instruct the jury that a special verdict of
guilty but mentally ill may be returned instead of a general verdict, but
that such special verdict requires a unanimous finding by the jury that:
(1) the State has proven beyond a reasonable doubt that the defendant is
guilty of the offense charged; and (2) the defendant has failed to prove
his insanity as required in subsection (b) of Section 3-2 of the Criminal
Code of 2012 and subsections (a), (b) and (e) of Section 6-2
of the Criminal Code of 2012; and (3) the defendant has proven
by a preponderance of the evidence that he was mentally ill, as defined in
subsections (c) and (d) of Section 6-2 of the Criminal Code of 2012 at the time of the offense.
(k) When, at the close of the State's evidence or at the close of
all of the evidence, the evidence is insufficient to support a finding
or verdict of guilty the court may and on motion of the defendant shall
make a finding or direct the jury to return a verdict of not guilty,
enter a judgment of acquittal and discharge the defendant.
(l) When the jury retires to consider its verdict an officer of the
court shall be appointed to keep them together and to prevent
conversation between the jurors and others; however, if any juror is deaf,
the jury may be accompanied by and may communicate with a court-appointed
interpreter during its deliberations. Upon agreement between the
State and defendant or his counsel the jury may seal and deliver its
verdict to the clerk of the court, separate, and then return such
verdict in open court at its next session.
(m) In the trial of a capital or other offense, any juror who is a
member of a panel or jury which has been impaneled and sworn as a panel
or as a jury shall be permitted to separate from other such jurors
during every period of adjournment to a later day, until final
submission of the cause to the jury for determination, except that no
such separation shall be permitted in any trial after the court, upon
motion by the defendant or the State or upon its own motion, finds a
probability that prejudice to the defendant or to the State will result
from such separation.
(n) The members of the jury shall be entitled to take notes during the
trial, and the sheriff of the county in which the jury is sitting shall
provide them with writing materials for this purpose. Such notes shall
remain confidential, and shall be destroyed by the sheriff after the verdict
has been returned or a mistrial declared.
(o) A defendant tried by the court and jury shall only be found guilty,
guilty but mentally ill, not guilty or not guilty by reason of insanity,
upon the unanimous verdict of the jury.
(Source: P.A. 97-1150, eff. 1-25-13.)
(725 ILCS 5/115-4.1) (from Ch. 38, par. 115-4.1)
Sec. 115-4.1. Absence of defendant.
(a) When a defendant after arrest
and an initial court appearance for a non-capital felony or a misdemeanor,
fails to appear for trial, at the request of the State and after the State
has affirmatively proven through substantial evidence that the defendant
is willfully avoiding trial, the court may commence trial in the absence
of the defendant. Absence of a defendant as specified in this Section
shall not be a bar to indictment of a defendant, return of information
against a defendant, or arraignment of a defendant for the charge for which
pretrial release has been granted. If a defendant fails
to appear at arraignment, the court may enter a plea of "not guilty" on his
behalf. If a defendant absents himself before trial on a capital felony,
trial may proceed as specified in this Section provided that the State
certifies that it will not seek a death sentence following conviction.
Trial in the defendant's absence shall be by jury unless
the defendant had previously waived trial by jury. The absent defendant
must be represented by retained or appointed counsel.
The court, at the conclusion of all of the proceedings, may order the clerk
of the circuit court to pay counsel such sum as the court deems reasonable,
from any bond monies which were posted by the defendant with the clerk,
after the clerk has first deducted all court costs. If trial had previously
commenced in the presence of the defendant and the defendant willfully absents
himself for two successive court days, the court shall proceed to trial. All
procedural rights guaranteed by the United States Constitution, Constitution
of the State of Illinois, statutes of the State of Illinois, and rules of court
shall apply to the proceedings the same as if the defendant were present
in court and had not either had his or her pretrial release revoked or escaped
from custody. The court may set the case for a trial which may be conducted
under this Section despite the failure of the defendant to appear at the
hearing at which the trial date is set. When such trial date is set the
clerk shall send to the defendant, by certified mail at his last known address
indicated on his bond slip, notice of the new date which has been set for
trial. Such notification shall be required when the defendant was not
personally present in open court at the time when the case was set for trial.
(b) The absence of a defendant from a trial conducted pursuant to this
Section does not operate as a bar to concluding the trial, to a judgment
of conviction resulting therefrom, or to a final disposition of the trial
in favor of the defendant.
(c) Upon a verdict of not guilty, the court shall enter judgment for the
defendant. Upon a verdict of guilty, the court shall set a date for the
hearing of post-trial motions and shall hear such motion in the absence
of the defendant. If post-trial motions are denied, the court shall proceed
to conduct a sentencing hearing and to impose a sentence upon the defendant.
(d) A defendant who is absent for part of the proceedings of trial,
post-trial motions, or sentencing, does not thereby forfeit his right to be
present at all remaining proceedings.
(e) When a defendant who in his absence has been either convicted or
sentenced or both convicted and sentenced appears before the court, he must
be granted a new trial or new sentencing hearing if the defendant can
establish that his failure to appear in court was both without his fault
and due to circumstances beyond his control. A hearing with notice to the
State's Attorney on the defendant's request for a new trial or a new
sentencing hearing must be held before any such request may be granted. At
any such hearing both the defendant and the State may present evidence.
(f) If the court grants only the defendant's request for a new sentencing
hearing, then a new sentencing hearing shall be held in accordance with
the provisions of the Unified Code of Corrections. At any such hearing,
both the defendant and the State may offer evidence of the defendant's conduct
during his period of absence from the court. The court may impose any sentence
authorized by the Unified Code of Corrections and is not in any way limited
or restricted by any sentence previously imposed.
(g) A defendant whose motion under paragraph (e) for a new trial or new
sentencing hearing has been denied may file a notice of appeal therefrom.
Such notice may also include a request for review of the judgment and sentence
not vacated by the trial court.
(Source: P.A. 101-652, eff. 1-1-23.)
(725 ILCS 5/115-4.5)
Sec. 115-4.5. Death of defendant. Whenever the prosecuting attorney learns of the death of the defendant prior to the entry of a final and appealable judgment in a criminal case, he or she shall promptly notify the other party and file a certificate of notice of the defendant's death with the circuit court before which the case is pending. Upon filing of the certificate, the court shall enter an order abating the proceedings ab initio.
(Source: P.A. 99-778, eff. 1-1-17.)
(725 ILCS 5/115-5) (from Ch. 38, par. 115-5)
Sec. 115-5. Business records as evidence.
(a) Any writing or record, whether in the form of an entry in a book
or otherwise, made as a memorandum or record of any act, transaction,
occurrence, or event, shall be admissible as evidence of such act,
transaction, occurrence, or event, if made in regular course of any
business, and if it was the regular course of such business to make such
memorandum or record at the time of such act, transaction, occurrence, or
event or within a reasonable time thereafter.
All other circumstances of the making of such writing or record,
including lack of personal knowledge by the entrant or maker, may be shown
to affect its weight, but such circumstances shall not affect its
admissibility.
The term "business," as used in this Section, includes business,
profession, occupation, and calling of every kind.
(b) If any business, institution, member of a profession or calling, or
any department or agency of government, in the regular course of business
or activity has kept or recorded any memorandum, writing, entry, print,
representation or combination thereof, of any act, transaction, occurrence,
or event, and in the regular course of business has caused any or all of
the same to be recorded, copied, or reproduced by any photographic,
photostatic, microfilm, micro-card, miniature photographic, optical
imaging, or other
process which accurately reproduces or forms a medium for so
reproducing the original, the original may be destroyed in the regular
course of business unless its preservation is required by law. Such
reproduction, when satisfactorily identified, is as admissible in evidence
as the original itself in any proceeding whether the original is in
existence or not and an enlargement or facsimile of such reproduction is
likewise admissible in evidence if the original reproduction is in
existence and available for inspection under direction of court. The
introduction of a reproduced record, enlargement, or facsimile does not
preclude admission of the original. This Section shall not be construed to
exclude from evidence any document or copy thereof which is otherwise
admissible under the rules of evidence.
(c) No writing or record made in the regular course of any business
shall become admissible as evidence by the application of this Section if:
(d) Upon request of the moving party and with reasonable notice given to the opposing party, in a criminal prosecution in which the defendant is accused of an offense under Article 16 or 17 of the Criminal Code of 1961 or the Criminal Code of 2012, the court may, after a hearing, for good cause and upon appropriate safeguards, permit live foundational testimony business records as evidence, subject to cross-examination, in open court by means of a contemporaneous audio and video transmission from outside of this State.
(Source: P.A. 98-579, eff. 1-1-14.)
(725 ILCS 5/115-5.1) (from Ch. 38, par. 115-5.1)
Sec. 115-5.1.
In any civil or criminal action the records of the
coroner's medical or
laboratory examiner summarizing and detailing the performance of his
or her official duties in performing medical examinations upon deceased persons
or autopsies, or both, and kept in the ordinary course of business of
the coroner's office, duly certified by the county coroner or chief
supervisory coroner's pathologist or medical examiner, shall be received
as competent evidence in any court of this State, to the extent
permitted by this Section. These reports, specifically including but not
limited to the pathologist's protocol, autopsy reports and toxicological
reports, shall be public documents and thereby may be admissible as
prima facie evidence of the facts, findings, opinions, diagnoses and
conditions stated therein.
A duly certified coroner's protocol or autopsy report, or both,
complying with the requirements of this Section may be duly
admitted into evidence as an exception to the hearsay rule as prima
facie proof of the cause of death of the person to whom it relates. The
records referred to in this Section shall be limited to the records of
the results of post-mortem examinations of the findings of autopsy and
toxicological laboratory examinations.
Persons who prepare reports or records offered in evidence hereunder
may be subpoenaed as witnesses in civil or criminal cases upon the request of either
party to the cause. However, if such person is dead, the county coroner
or a duly authorized official of the coroner's office may testify to the
fact that the examining pathologist, toxicologist or other medical or
laboratory examiner is deceased and that the offered report or record
was prepared by such deceased person. The witness must further attest
that the medical report or record was prepared in the ordinary and usual
course of the deceased person's duty or employment in conformity with the
provisions of this Section.
(Source: P.A. 82-783.)
(725 ILCS 5/115-6) (from Ch. 38, par. 115-6)
Sec. 115-6. Appointment of Psychiatrist or Clinical Psychologist. If the defendant has given notice that he may rely upon the defense of insanity
as defined in Section 6-2 of the Criminal Code of 2012 or the defendant
indicates that he intends to plead guilty but mentally ill or the defense
of intoxicated or drugged condition as defined in Section 6-3 of the Criminal
Code of 2012 or if the facts and circumstances of the case justify a reasonable
belief that the aforesaid defenses may be raised, the Court shall, on motion
of the State, order the defendant to submit to examination
by at least one clinical psychologist or psychiatrist, to be named by the
prosecuting attorney. The
Court shall also order the defendant to submit to an examination by one
neurologist, one clinical psychologist and one
electroencephalographer to be named by the prosecuting attorney if the
State asks for one or more of such additional examinations. The Court may
order additional examinations if the Court finds that additional
examinations by additional experts will be of substantial value in the
determination of issues of insanity or
drugged conditions. The reports of
such experts shall be made available to the defense. Any statements made by
defendant to such experts shall not be admissible against the defendant
unless he raises the defense of insanity or the defense of drugged
condition, in which case they shall be admissible only on the issue of
whether he was insane or drugged. The refusal of the defendant to cooperate
in such examinations shall not automatically preclude the raising of the aforesaid
defenses but shall preclude the defendant from offering expert evidence or
testimony tending to support such defenses if the expert evidence or
testimony is based upon the expert's examination of the defendant. If
the Court, after a hearing, determines to its satisfaction that the defendant's
refusal to cooperate was unreasonable it may, in its sound discretion, bar
any or all evidence upon the defense asserted.
(Source: P.A. 97-1150, eff. 1-25-13.)
(725 ILCS 5/115-6.1)
Sec. 115-6.1. Prostitution; affirmative defense.
(a) In prosecutions for prostitution, when the accused intends to raise at trial the affirmative defense provided in subsection (c-5) of Section 11-14 of the Criminal Code of 2012 and has reason to believe that the evidence presented in asserting that defense may jeopardize the safety of the accused, courtroom personnel, or others impacted by human trafficking, the accused may file under seal a motion for an in camera hearing to review the accused's safety concerns. Upon receipt of the motion and notice to the parties, the court shall conduct an in camera hearing, with counsel present, limited to review of potential safety concerns. The court shall cause an official record of the in camera hearing to be made, which shall be kept under seal. The court shall not consider the merits of the affirmative defense during the in camera review.
(b) If the court finds by a preponderance of the evidence that the assertion of an affirmative defense under subsection (c-5) of Section 11-14 of the Criminal Code of 2012 by the accused in open court would likely jeopardize the safety of the accused, court personnel, or other persons, the court may clear the courtroom with the agreement of the accused, order additional in camera hearings, seal the records, prohibit court personnel from disclosing the proceedings without prior court approval, or take any other appropriate measure that in the court's discretion will enhance the safety of the proceedings and ensure the accused a full and fair opportunity to assert his or her affirmative defense.
(c) Statements made by the accused during the in camera hearing to review safety concerns shall not be admissible against the accused for the crimes charged.
(Source: P.A. 99-109, eff. 7-22-15.)
(725 ILCS 5/115-7) (from Ch. 38, par. 115-7)
Sec. 115-7. a. In prosecutions for predatory criminal sexual assault of a
child, aggravated criminal sexual assault,
criminal sexual assault, aggravated criminal sexual abuse,
criminal sexual abuse, or criminal transmission of HIV; and in
prosecutions for battery and aggravated battery, when the commission of the
offense involves sexual penetration or sexual conduct as defined in Section
11-0.1 of the Criminal Code of 2012; and with the trial or retrial of the
offenses formerly known as rape, deviate sexual assault, indecent liberties
with a child, and aggravated indecent liberties with a child, the prior
sexual activity or the reputation of the alleged victim or corroborating
witness under Section 115-7.3 of this Code is inadmissible except
(1) as evidence
concerning the past sexual conduct of the alleged victim or corroborating
witness under Section 115-7.3 of this Code with the accused
when
this evidence is offered by the accused upon the issue of whether the alleged
victim or corroborating witness under Section 115-7.3 of this Code
consented to the sexual conduct with respect to which the offense is
alleged; or (2) when constitutionally required to be admitted.
b. No evidence admissible under this Section shall be introduced unless
ruled admissible by the trial judge after an offer of proof has been made
at a hearing to be held in camera in order to determine whether the defense
has evidence to impeach the witness in the event that prior sexual activity
with the defendant is denied. Such offer of proof shall include
reasonably specific information as to the date, time and place of the past
sexual conduct
between the alleged victim or corroborating witness under Section 115-7.3 of
this Code and the defendant. Unless the court finds
that reasonably specific information as to date, time or place, or some
combination thereof, has been offered as to prior sexual activity with
the defendant, counsel for the defendant shall be ordered
to refrain from inquiring into prior sexual activity between the alleged
victim or corroborating witness under Section 115-7.3 of this Code and the
defendant.
The court shall not admit evidence under this Section unless it determines at
the hearing that the evidence is relevant and the probative value of the
evidence outweighs the danger of unfair prejudice. The evidence shall be
admissible at trial to the extent an order made by the court specifies the
evidence that may be admitted and areas with respect to which the alleged
victim or corroborating witness under Section 115-7.3 of this Code may be
examined or cross examined.
(Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
(725 ILCS 5/115-7.1) (from Ch. 38, par. 115-7.1)
Sec. 115-7.1.
Court may not order mental examination of sex victim.
Except where explicitly authorized by this Code or by the Rules of the Supreme
Court of Illinois, no court may require or order a witness who is the victim
of an alleged sex offense to submit to or undergo either a psychiatric or
psychological examination.
(Source: P.A. 83-289.)
(725 ILCS 5/115-7.2) (from Ch. 38, par. 115-7.2)
Sec. 115-7.2.
In a prosecution for an illegal sexual act perpetrated upon a
victim, including but not limited to prosecutions for violations of
Sections 11-1.20 through 11-1.60 or 12-13 through 12-16 of the Criminal Code of 1961 or the Criminal Code of 2012, or ritualized
abuse of a child under Section 12-33 of the Criminal Code of 1961 or the Criminal Code of 2012, testimony
by
an expert, qualified by the court relating to any
recognized and accepted form of post-traumatic stress syndrome shall be
admissible as evidence.
(Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
(725 ILCS 5/115-7.3)
Sec. 115-7.3. Evidence in certain cases.
(a) This Section applies to criminal cases in which:
(b) If the defendant is accused of an offense set forth in paragraph (1)
or (2) of subsection (a) or the defendant is tried or retried for any of the
offenses set forth in paragraph (3) of subsection (a), evidence of the
defendant's commission of another offense or offenses set forth in paragraph
(1), (2), or (3) of subsection (a), or evidence to rebut that proof or an
inference from that proof, may be admissible (if that evidence is otherwise
admissible under the rules of evidence) and may be considered for its bearing
on any matter to which it is relevant.
(c) In weighing the probative value of the evidence against undue
prejudice to the defendant, the court may consider:
(d) In a criminal case in which the prosecution intends to offer evidence
under this Section, it must disclose the evidence, including statements of
witnesses or a summary of the substance of any testimony, at a reasonable time
in advance of trial, or during trial if the court excuses pretrial notice on
good cause shown.
(e) In a criminal case in which evidence is offered under this Section,
proof may be made by specific instances of conduct, testimony as to reputation,
or testimony in the form of an expert opinion, except that the prosecution may
offer
reputation testimony only after the opposing party has offered that
testimony.
(f) In prosecutions for a violation of Section 10-2, 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-3.05, 12-4, 12-13, 12-14,
12-14.1, 12-15, 12-16, or 18-5 of the Criminal Code of 1961 or the Criminal Code of 2012, involving the
involuntary delivery
of a controlled substance to a victim, no inference may be made about the fact
that a victim did not consent to a test for the presence of controlled
substances.
(Source: P.A. 97-1109, eff. 1-1-13; 97-1150, eff. 1-25-13; 98-160, eff. 1-1-14.)
(725 ILCS 5/115-7.4)
Sec. 115-7.4. Evidence in domestic violence cases.
(a) In a criminal prosecution in which the defendant is accused of an offense of domestic violence as defined in paragraphs (1) and (3) of Section 103 of the Illinois Domestic Violence Act of 1986, or first degree murder or second degree murder when the commission of the offense involves domestic violence, evidence of the defendant's commission of another offense or offenses of domestic violence is admissible, and may be considered for its bearing on any matter to which it is relevant.
(b) In weighing the probative value of the evidence against undue prejudice to the defendant, the court may consider:
(c) In a criminal case in which the prosecution intends to offer evidence under this Section, it must disclose the evidence, including statements of witnesses or a summary of the substance of any testimony, at a reasonable time in advance of trial, or during trial if the court excuses pretrial notice on good cause shown.
(d) In a criminal case in which evidence is offered under this Section, proof may be made by specific instances of conduct, testimony as to reputation, or testimony in the form of an expert opinion, except that the prosecution may offer reputation testimony only after the opposing party has offered that testimony.
(Source: P.A. 97-1036, eff. 8-20-12.)
(725 ILCS 5/115-8) (from Ch. 38, par. 115-8)
Sec. 115-8.
A defendant may waive his right to be present during trial. However,
upon motion of the State's Attorney made prior to or during trial, the
court shall order the defendant to present himself in open court for the
purpose of identification.
(Source: P.A. 77-1426.)
(725 ILCS 5/115-9) (from Ch. 38, par. 115-9)
Sec. 115-9.
(a) In a prosecution for theft, retail theft, deceptive practice,
robbery, armed robbery, burglary or residential burglary, the court shall
receive as competent evidence, a photograph of property over which the accused
is alleged to have exerted unauthorized control or to have otherwise obtained
unlawfully, if the
photograph:
(1) will serve the purpose of demonstrating the nature of the property; and
(2) is otherwise admissible into evidence under all other rules of law
governing the admissibility of photographs into evidence. The fact that
it is impractical to introduce into evidence the actual property for any
reason, including its size, weight, or unavailability, need not be established
for the court to find a photograph of that property to be competent evidence.
If a photograph is found to be competent evidence under this subsection,
it is admissible into evidence in place of the property and to the same
extent as the property itself.
(b) A law enforcement agency that is holding as evidence property over
which a person is alleged to have exerted unauthorized control or to have
otherwise obtained unlawfully, shall return that property to its owner if:
(1) the property has been photographed in a manner that will serve the
purpose of demonstrating the nature of the property, and if these photographs
are filed with or retained by the law enforcement agency in place of the property;
(2) receipt for the property is obtained from the owner upon delivery by the
law enforcement agency;
(3) the prosecuting attorney who is prosecuting a case that involves the
property furnishes the law enforcement agency
with a written request for return of the property to its owner; and
(4) the property may be lawfully possessed by the owner.
(c) Notwithstanding the provisions of subsection (b) of this Section a
court may, if a motion so requesting is filed by defendant before expiration
of the time period specified in subsection (d) of this Section, order the
law enforcement agency to hold such property as evidence pending completion of trial.
(d) The time period during which the defendant may file a motion with
the court for retention of the property as evidence shall be as follows:
(1) if the property was being displayed, held, stored or offered for sale
to the public by a person or entity holding a Retailers Occupation Tax Number
issued by the State of Illinois, the time period shall expire 14 days after
the arrest of the defendant;
(2) for all other property, the time period shall expire 30 days after
the filing of an information or indictment, or in the case of misdemeanor
charges within 30 days after the filing of a complaint.
(Source: P.A. 83-1362.)
(725 ILCS 5/115-9.2)
Sec. 115-9.2. Currency used in undercover investigation.
(a) In a prosecution in which United States currency was used by a law enforcement officer or agency or by a person acting under the direction of a law enforcement officer or agency in an undercover investigation of an offense that has imprisonment as an available sentence for a violation of the offense, the court shall receive, as competent evidence, a photograph, photostatic copy, or photocopy of the currency used in the undercover investigation, if:
(b) The fact that it is impractical to introduce into evidence the actual currency for any reason, including its size, weight, or unavailability, need not be established for the court to find a photograph, photostatic copy, or photocopy of that currency to be competent evidence.
(c) If a photograph, photostatic copy, or photocopy is found to be competent evidence under this Section, it is admissible into evidence in place of the currency and to the same extent as the currency itself.
(Source: P.A. 99-685, eff. 1-1-17; 100-201, eff. 8-18-17.)
(725 ILCS 5/115-10) (from Ch. 38, par. 115-10)
Sec. 115-10. Certain hearsay exceptions.
(a) In a prosecution for a physical or sexual act perpetrated upon or
against a child under the age of 13, a
person with an intellectual disability, a person with a cognitive impairment, or a person with a developmental disability, including, but not
limited to, prosecutions for violations of Sections 11-1.20 through 11-1.60 or 12-13 through 12-16 of the
Criminal Code of 1961 or the Criminal Code of 2012 and prosecutions for violations of Sections
10-1 (kidnapping), 10-2 (aggravated kidnapping), 10-3 (unlawful restraint), 10-3.1 (aggravated unlawful restraint), 10-4 (forcible detention), 10-5 (child abduction), 10-6 (harboring a runaway), 10-7 (aiding or abetting child abduction), 11-9 (public indecency), 11-11 (sexual relations within families), 11-21 (harmful material), 12-1 (assault), 12-2 (aggravated assault), 12-3 (battery), 12-3.2 (domestic battery), 12-3.3 (aggravated domestic battery), 12-3.05 or
12-4 (aggravated battery), 12-4.1 (heinous battery), 12-4.2 (aggravated battery with a firearm), 12-4.3 (aggravated battery of a child), 12-4.7 (drug induced infliction of great bodily harm), 12-5 (reckless conduct), 12-6 (intimidation), 12-6.1 or 12-6.5 (compelling organization membership of persons), 12-7.1 (hate crime), 12-7.3 (stalking),
12-7.4 (aggravated stalking), 12-10 or 12C-35 (tattooing the body of a minor), 12-11 or 19-6 (home invasion), 12-21.5 or 12C-10 (child abandonment), 12-21.6 or 12C-5 (endangering the life or health of a child) or 12-32 (ritual mutilation) of the Criminal Code of
1961 or the Criminal Code of 2012 or any sex offense as defined in subsection (B) of Section 2 of the Sex Offender Registration Act, the following evidence shall be admitted as an exception to the
hearsay rule:
(b) Such testimony shall only be admitted if:
(c) If a statement is admitted pursuant to this Section, the court shall
instruct the jury that it is for the jury to determine the weight and
credibility to be given the statement and that, in making the determination,
it shall consider the age and maturity of the child, or the
intellectual capabilities of the person with an intellectual disability, a cognitive impairment, or developmental disability, the nature of the statement, the circumstances under which the
statement was made, and any other relevant factor.
(d) The proponent of the statement shall give the adverse party
reasonable notice of his intention to offer the statement and the
particulars of the statement.
(e) Statements described in paragraphs (1) and (2) of subsection (a) shall
not be excluded on the basis that they were obtained as a result of interviews
conducted pursuant to a protocol adopted by a Child Advocacy Advisory Board as
set forth in subsections (c), (d), and (e) of Section 3 of the Children's
Advocacy Center Act or that an interviewer or witness to the interview was or
is an employee, agent, or investigator of a State's Attorney's office.
(f) For the purposes of this Section:
"Person with a cognitive impairment" means a person with a significant impairment of cognition or memory that represents a marked deterioration from a previous level of function. Cognitive impairment includes, but is not limited to, dementia, amnesia, delirium, or a traumatic brain injury.
"Person with a developmental disability" means a person with a disability that is attributable to (1) an intellectual disability, cerebral palsy, epilepsy, or autism, or (2) any other condition that results in an impairment similar to that caused by an intellectual disability and requires services similar to those required by a person with an intellectual disability.
"Person with an intellectual disability" means a person with significantly subaverage general intellectual functioning which exists concurrently with an impairment in adaptive behavior.
(Source: P.A. 99-143, eff. 7-27-15; 99-752, eff. 1-1-17; 100-201, eff. 8-18-17.)
(725 ILCS 5/115-10.1) (from Ch. 38, par. 115-10.1)
Sec. 115-10.1.
Admissibility of Prior Inconsistent Statements.
In all
criminal cases, evidence of a statement made by a witness is not made inadmissible
by the hearsay rule if
(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement--
(1) was made under oath at a trial, hearing, or other proceeding, or
(2) narrates, describes, or explains an event or condition of which the
witness had personal knowledge, and
(A) the statement is proved to have been written or signed by the witness, or
(B) the witness acknowledged under oath the making of the statement
either in his testimony at the hearing or trial in which the admission into
evidence of the prior statement is being sought, or at a trial, hearing,
or other proceeding, or
(C) the statement is proved to have been accurately recorded by a tape
recorder, videotape recording, or any other similar electronic means of
sound recording.
Nothing in this Section shall render a prior inconsistent statement inadmissible
for purposes of impeachment because such statement was not recorded or otherwise
fails to meet the criteria set forth herein.
(Source: P.A. 83-1042.)
(725 ILCS 5/115-10.2)
Sec. 115-10.2. Admissibility of prior statements when witness refused to
testify despite a court order to testify.
(a) A statement not specifically covered by any other hearsay exception
but having equivalent circumstantial guarantees of trustworthiness, is not
excluded by the hearsay rule if the declarant is unavailable as defined in
subsection (c) and if the court determines that:
(b) A statement may not be admitted under this exception unless the
proponent of it makes known to the adverse party sufficiently in advance of the
trial or hearing to provide the adverse party with a fair opportunity to
prepare to meet it, the proponent's intention to offer the statement, and the
particulars of the statement, including the name and
address of the declarant.
(c) Unavailability as a witness is limited to the situation in which the
declarant persists in refusing to testify concerning the subject matter of the
declarant's statement despite an order of the court to do so.
(d) A declarant is not unavailable as a witness if exemption, refusal, claim
or lack of memory, inability or absence is due to the procurement or wrongdoing
of the proponent of a statement for purpose of preventing the witness from
attending or testifying.
(e) Nothing in this Section shall render a prior statement inadmissible for
purposes of impeachment because the statement was not recorded or otherwise
fails to meet the criteria set forth in this Section.
(f) Prior statements are admissible under this Section only if the statements were made under oath and were subject to cross-examination by the adverse party in a prior trial, hearing, or other proceeding.
(Source: P.A. 93-413, eff. 8-5-03; 93-443, eff. 8-5-03; 94-53, eff. 6-17-05.)
(725 ILCS 5/115-10.2a)
Sec. 115-10.2a.
Admissibility of prior statements in domestic violence
prosecutions when the witness is unavailable to testify.
(a) In a domestic violence prosecution, a statement, made by an
individual identified in Section 201 of the Illinois Domestic Violence Act of
1986 as a person protected by that Act, that is not specifically covered by
any other hearsay exception but having equivalent circumstantial guarantees
of trustworthiness, is not excluded by the hearsay rule if the declarant is
identified as unavailable as defined in subsection (c) and if the court
determines that:
(b) A statement may not be admitted under this exception unless the
proponent of
it
makes
known to the adverse party sufficiently in advance of the trial or hearing to
provide the adverse party with a fair opportunity to prepare to meet it, the
proponent's intention to offer the statement, and the particulars of the
statement,
including the name and address of the declarant.
(c) Unavailability as a witness includes circumstances in which the
declarant:
(d) A declarant is not unavailable as a witness if exemption, refusal, claim
of lack of memory, inability, or absence is due to the procurement or
wrongdoing of the proponent of a statement for purpose of preventing
the witness from attending or testifying.
(e) Nothing in this Section shall render a prior statement inadmissible for
purposes of impeachment because the statement was not recorded or
otherwise fails to meet the criteria set forth in this Section.
(Source: P.A. 97-1150, eff. 1-25-13.)
(725 ILCS 5/115-10.3)
Sec. 115-10.3. Hearsay exception regarding elder adults.
(a) In a prosecution for a physical act, abuse, neglect, or financial
exploitation
perpetrated upon or against an eligible adult, as defined in
the Adult Protective Services Act, who has been diagnosed by a physician to suffer from (i) any form of
dementia, developmental disability, or other form of mental incapacity or (ii)
any physical infirmity, including but not limited to
prosecutions for violations of Sections 10-1, 10-2, 10-3, 10-3.1, 10-4, 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-11,
12-1, 12-2, 12-3, 12-3.05, 12-3.2, 12-3.3, 12-4, 12-4.1, 12-4.2, 12-4.5, 12-4.6, 12-4.7, 12-5, 12-6, 12-7.3, 12-7.4, 12-11, 12-11.1, 12-13, 12-14, 12-15, 12-16, 12-21,
16-1, 16-1.3, 17-1, 17-3, 17-56, 18-1, 18-2, 18-3, 18-4, 18-5, 18-6, 19-6, 20-1.1,
24-1.2, and 33A-2, or subsection (b) of Section 12-4.4a of the Criminal Code of 2012, the following evidence shall be admitted
as an exception to the hearsay rule:
(b) Such testimony shall only be admitted if:
(c) If a statement is admitted pursuant to this Section, the court shall
instruct the jury that it is for the jury to determine the weight and
credibility to be given the statement and that, in making the determination, it
shall consider the condition of the eligible adult, the nature of
the
statement, the circumstances under which the statement was made, and any other
relevant factor.
(d) The proponent of the statement shall give the adverse party reasonable
notice of his or her intention to offer the statement and the particulars of
the statement.
(Source: P.A. 97-1108, eff. 1-1-13; 97-1109, eff. 1-1-13; 97-1150, eff. 1-25-13; 98-49, eff. 7-1-13.)
(725 ILCS 5/115-10.4)
Sec. 115-10.4. Admissibility of prior statements when witness is deceased.
(a) A statement not specifically covered by any other hearsay exception
but having equivalent circumstantial guarantees of trustworthiness is not
excluded by the hearsay rule if the declarant is deceased
and if the court determines that:
(b) A statement may not be admitted under this exception unless the
proponent of it makes known to the adverse party sufficiently in advance of the
trial or hearing to provide the adverse party with a fair opportunity to
prepare to meet it, the proponent's intention to offer the statement, and the
particulars of the statement, including the name
of the declarant.
(c) Unavailability as a witness under this Section is limited to the
situation in which the declarant is deceased.
(d) Any prior statement that is sought to be admitted under this Section
must have been made by the declarant under oath at a trial, hearing, or other
proceeding and been subject to cross-examination by the adverse party.
(e) Nothing in this Section shall render a prior statement inadmissible for
purposes of impeachment because the statement was not recorded or otherwise
fails to meet the criteria set forth in this Section.
(Source: P.A. 94-53, eff. 6-17-05.)
(725 ILCS 5/115-10.5)
Sec. 115-10.5. Hearsay exception regarding safe zone testimony.
(a) In any prosecution for any offense charged as a violation of Section
407 of the Illinois Controlled Substances Act, Section 55 of the Methamphetamine Control and Community Protection Act, or Section 5-130 of the Juvenile
Court Act of 1987 the following evidence shall be admitted as an exception to
the hearsay rule any testimony by any qualified individual regarding the status
of any property as:
(b) As used in this Section, "qualified individual" means any person who
(i) lived or worked within the territorial jurisdiction where the offense took
place when the offense took place; and (ii) is familiar with various public
places within the territorial jurisdiction where the offense took place when
the offense took place.
(c) For the purposes of this Section, "qualified individual" includes any
peace officer, or any member of any duly organized State, county, or municipal
peace unit, assigned to the territorial jurisdiction where the offense took
place when the offense took place.
(d) This Section applies to all prosecutions pending at the time this
amendatory Act of the 91st General Assembly takes effect and to all
prosecutions commencing on or after its effective date.
(Source: P.A. 94-556, eff. 9-11-05.)
(725 ILCS 5/115-10.6)
Sec. 115-10.6. (Repealed).
(Source: P.A. 97-1150, eff. 1-25-13. Repealed by P.A. 99-243, eff. 8-3-15.)
(725 ILCS 5/115-10.7)
Sec. 115-10.7. (Repealed).
(Source: P.A. 96-377, eff. 8-11-09. Repealed by P.A. 99-243, eff. 8-3-15.)
(725 ILCS 5/115-11) (from Ch. 38, par. 115-11)
Sec. 115-11.
In a prosecution for a criminal offense defined
in Article 11 or in Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 12-14.1, 12-15 or 12-16 of the
Criminal Code of 1961 or the Criminal Code of 2012, when the alleged victim of the offense was a minor
under 18
years of age at the time of the offense, the court may exclude from the proceedings
while the victim is testifying, regardless of the alleged victim's age at the time of the victim's courtroom testimony, all persons, who, in the opinion of the
court, do not have a direct interest in the case, except the media. When the court publishes to the trier of fact videos, photographs, or any depiction of a minor under 18 years of age engaged in a sex act, the court may exclude from the proceedings all persons, who in the opinion of the court, do not have a direct interest in the case, except the media. The court shall enter its finding that particular parties are disinterested and the basis for that finding into the record.
(Source: P.A. 102-994, eff. 5-27-22.)
(725 ILCS 5/115-11.1) (from Ch. 38, par. 115-11.1)
Sec. 115-11.1. Use of "Rape". The use of the word "rape", "rapist", or
any derivative of "rape" by any victim, witness, State's Attorney, defense
attorney, judge or other court personnel in any prosecutions of offenses in
Sections 11-1.20 through 11-1.60 or 12-13 through 12-16 of the Criminal Code of 1961 or the Criminal Code of 2012 is
not inadmissible.
(Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
(725 ILCS 5/115-12) (from Ch. 38, par. 115-12)
Sec. 115-12.
Substantive Admissibility of Prior Identification.
A statement
is not rendered inadmissible by the hearsay rule if (a) the declarant testifies
at the trial or hearing, and (b) the declarant is subject to cross-examination
concerning the statement, and (c) the statement is one of identification
of a person made after perceiving him.
(Source: P.A. 83-367.)
(725 ILCS 5/115-13) (from Ch. 38, par. 115-13)
Sec. 115-13.
In a prosecution for violation of Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14,
12-14.1,
12-15 or 12-16 of the Criminal Code of 1961 or the Criminal Code of 2012, statements made by the
victim to medical personnel for purposes of medical diagnosis or treatment
including descriptions of the cause of symptom, pain or sensations, or the
inception or general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment shall be admitted
as an exception to the hearsay rule.
(Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
(725 ILCS 5/115-14) (from Ch. 38, par. 115-14)
Sec. 115-14.
Witness Competency.
(a) Every person, irrespective of
age, is qualified to be a witness and no person is disqualified to testify
to any matter, except as provided in subsection (b).
(b) A person is disqualified to be a witness if he or she is:
(1) Incapable of expressing himself or herself concerning the matter so
as to be understood, either directly or through interpretation by one who
can understand him or her; or
(2) Incapable of understanding the duty of a witness to tell the truth.
(c) A party may move the court prior to a witness' testimony being
received in evidence, requesting that the court make a determination if a
witness is competent to testify. The hearing shall be conducted outside
the presence of the jury and the burden of proof shall be on the moving
party.
(Source: P.A. 85-1190.)
(725 ILCS 5/115-15)
Sec. 115-15. Laboratory reports.
(a) In any criminal prosecution for a violation of
the Cannabis
Control Act, the Illinois Controlled Substances Act, or the Methamphetamine Control and Community Protection Act, a laboratory report
from the Illinois State Police, Division of Forensic Services, that is
signed and sworn to by the person performing an
analysis and that states (1) that the substance that is the basis of the
alleged
violation
has been weighed and analyzed, and (2) the person's findings as to the
contents, weight and identity of the substance, and (3) that it contains any
amount of a controlled substance or cannabis is prima facie evidence of the
contents, identity and weight of the substance. Attached to the report
shall be a copy of a notarized statement by the signer of the report giving
the name of the signer and stating (i) that he or she is an employee of the
Illinois State Police, Division of Forensic Services,
(ii) the name and location of the laboratory where the analysis was
performed, (iii) that performing the analysis is a part of his or her regular
duties, and (iv) that the signer is qualified by education, training and
experience to perform the analysis. The signer shall also allege that
scientifically accepted tests were performed with due caution and that the
evidence was handled in accordance with established and accepted procedures
while in the custody of the laboratory.
(a-5) In any criminal prosecution for reckless homicide under Section 9-3
of the
Criminal Code of
1961 or the Criminal Code of 2012, or driving under the influence of alcohol, other drug, or combination of
both, in
violation of Section
11-501 of the Illinois Vehicle Code or in any civil action held under a
statutory summary
suspension or revocation hearing under Section 2-118.1 of the Illinois Vehicle Code, a
laboratory report from the
Illinois State Police, Division of Forensic Services, that is signed and
sworn to by the person
performing an analysis, and that states
that the sample of blood, other bodily substance, or urine was tested for alcohol or
drugs, and
contains the person's findings as to the presence and amount
of
alcohol or
drugs and type of drug is prima facie evidence of
the presence, content, and amount of the alcohol or drugs analyzed in
the blood, other bodily substance, or urine. Attached to the report must be a copy of a notarized
statement by the
signer of the report giving the name of the signer and stating (1) that he or
she is an employee
of the Illinois State Police, Division of Forensic Services, (2) the name
and location
of the laboratory where the analysis was performed, (3) that performing the
analysis is a part
of his or her regular duties, (4) that the signer is qualified by
education, training, and
experience to perform the analysis, and (5) that
scientifically accepted
tests were performed with due caution and that the evidence was handled in
accordance with
established and accepted procedures while in the custody of the laboratory.
(b) The State's Attorney shall serve a copy of the report on the
attorney of record for the accused, or on the accused if he or she has no
attorney, before any proceeding in which the report is to be used against
the accused other than at a preliminary hearing or grand jury hearing when
the report may be used without having been previously served upon the accused.
(c) The report shall not be prima facie evidence if the
accused or his or her attorney
demands the testimony of the person signing the report by serving the
demand upon the State's Attorney within 7 days from the accused or his or her
attorney's receipt of the report.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/115-16)
Sec. 115-16. Witness disqualification. No person shall
be disqualified as a witness in a
criminal case or proceeding by reason of his or her interest in the event of
the case or proceeding, as a party or otherwise, or by reason of
his or her having been convicted of a crime; but the
interest or conviction may be shown for the purpose of affecting the
credibility of the witness. A defendant in
a criminal case or proceeding shall only at his or her own request
be deemed a competent witness, and the person's neglect to testify shall not
create a presumption against the person, nor shall the court permit
a reference or comment to be made to or upon that
neglect.
In criminal cases, husband and wife may testify for or against each
other. Neither, however, may testify as to any
communication or admission
made by either of them to the other or as to any conversation between them
during marriage, except in cases in which either is charged with
an offense against the person or property of the other, in case of
spouse abandonment, when the interests of their child or
children or of any child or children in either spouse's care, custody, or
control are directly involved, when either is charged with or under investigation for an offense under Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-13,
12-14, 12-14.1, 12-15, or 12-16 of the
Criminal Code of 1961 or the Criminal Code of 2012 and the victim is a minor under 18 years of age in
either spouse's care, custody, or control at the time of the offense, or
as to matters in which either has acted as agent of the other.
(Source: P.A. 96-1242, eff. 7-23-10; 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
(725 ILCS 5/115-17)
Sec. 115-17. Clerk; issuance of subpoenas. It is the duty of the clerk of
the court to issue
subpoenas, either on the part of the people or of the accused, directed to the
sheriff or coroner of any county of this State. An attorney admitted to practice in the State of Illinois, as an officer of the court, may also issue subpoenas in a pending action. A witness
who is duly subpoenaed who neglects or refuses to attend any court, under
the requisitions of the subpoena, shall be proceeded against and
punished for contempt of the court. Attachments against witnesses who
live in a different county from that where the subpoena is
returnable
may be served in the same manner as warrants are directed to be served out of
the county from which they issue.
(Source: P.A. 96-485, eff. 1-1-10.)
(725 ILCS 5/115-17a)
Sec. 115-17a.
Subpoenas to crime victims.
In a post conviction proceeding,
before the crime victim may be subpoenaed by the defendant, the defendant must
first petition the court and give notice to the victim. At the hearing on the
petition, the victim shall be given the opportunity to appear and object to the
requested subpoena. At the request of the victim, the State's Attorney shall
represent the victim in the proceeding. The court shall grant the request for
the subpoena only if and to the extent it determines that the subpoena seeks
evidence that is material and relevant to the post conviction hearing. For the
purposes of this Section, "crime victim" has the meaning ascribed to it in
Section 3 of the Rights of Crime Victims and Witnesses Act.
(Source: Incorporates P.A. 89-291, eff. 1-1-96; 89-626, eff. 8-9-96.)
(725 ILCS 5/115-17b)
Sec. 115-17b. Administrative subpoenas.
(a) Definitions. As used in this Section:
(b) Subpoenas duces tecum. In any criminal investigation of an offense involving the sexual exploitation of children, the Attorney General, or his or her designee, or a State's Attorney, or his or her designee, may issue in writing and cause to be served subpoenas duces tecum to providers of electronic communication services or remote computing services requiring the production of records relevant to the investigation. Any such request for records shall not extend beyond requiring the provider to disclose the information specified in 18 U.S.C. 2703(c)(2). Any subpoena duces tecum issued under this Section shall be made returnable to the Chief Judge of the Circuit Court for the Circuit in which the State's Attorney resides, or his or her designee, or for subpoenas issued by the Attorney General, the subpoena shall be made returnable to the Chief Judge of the Circuit Court for the Circuit to which the investigation pertains, or his or her designee, to determine whether the documents are privileged and whether the subpoena is unreasonable or oppressive.
(c) Contents of subpoena. A subpoena under this Section shall describe the records or other things required to be produced and prescribe a return date within a reasonable period of time within which the objects or records can be assembled and made available.
(c-5) Contemporaneous notice to Chief Judge. Whenever a subpoena is issued under this Section, the Attorney General or his or her designee or the State's Attorney or his or her designee shall be required to provide a copy of the subpoena to the Chief Judge of the county in which the subpoena is returnable.
(d) Modifying or quashing subpoena. At any time before the return date specified in the subpoena, the person or entity to whom the subpoena is directed may petition for an order modifying or quashing the subpoena on the grounds that the subpoena is oppressive or unreasonable or that the subpoena seeks privileged documents or records.
(e) Ex parte order. An Illinois circuit court for the circuit in which the subpoena is or will be issued, upon application of the Attorney General, or his or her designee, or State's Attorney, or his or her designee, may issue an ex parte order that no person or entity disclose to any other person or entity (other than persons necessary to comply with the subpoena) the existence of such subpoena for a period of up to 90 days.
(f) Enforcement. A witness who is duly subpoenaed who neglects or refuses to comply with the subpoena shall be proceeded against and punished for contempt of the court. A subpoena duces tecum issued under this Section may be enforced pursuant to the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings.
(g) Immunity from civil liability. Notwithstanding any federal, State, or local law, any person, including officers, agents, and employees, receiving a subpoena under this Section, who complies in good faith with the subpoena and thus produces the materials sought, shall not be liable in any court of Illinois to any customer or other person for such production or for nondisclosure of that production to the customer.
(Source: P.A. 99-642, eff. 7-28-16.)
(725 ILCS 5/115-18)
Sec. 115-18.
Employee protected.
No employer shall
discharge or terminate, or threaten to
discharge or terminate, from his or her employment, or otherwise punish or
penalize his or her employee who is a witness to a
crime, because of time lost from regular employment resulting from his or
her attendance at a
proceeding under
subpoena issued in any criminal proceeding relative to the crime.
An
employer who knowingly or intentionally violates this
Section shall be
proceeded against and punished for contempt of court. This Section shall not
be construed as requiring an employer to pay an employee for time lost
resulting from attendance at any proceeding.
(Source: P.A. 89-234, eff. 1-1-96.)
(725 ILCS 5/115-19)
Sec. 115-19.
Polygraph.
In the course of a
criminal trial the court shall not
require, request, or suggest that the defendant submit to a polygraphic
detection deception test, commonly known as a lie detector test, to
questioning under the effect of thiopental sodium, or to any other test or
questioning by
means of a mechanical device or chemical substance.
(Source: P.A. 89-234, eff. 1-1-96.)
(725 ILCS 5/115-20)
Sec. 115-20.
Evidence of prior conviction.
(a) Evidence of a prior conviction
of a defendant for domestic battery, aggravated battery committed against a
family or household member as defined in Section 112A-3, stalking, aggravated
stalking, or violation of an order of protection is admissible in a later
criminal prosecution for any of these types of offenses when the victim is the
same person who was the victim of the previous offense that resulted in
conviction of the defendant.
(b) If the defendant is accused of an offense set forth in
subsection (a) or the defendant is tried or retried for any of the
offenses set forth in subsection (a), evidence of the
defendant's conviction for another offense or offenses set forth in
subsection (a)
may be admissible (if that evidence is otherwise
admissible under the rules of evidence) and may be considered for its bearing
on any matter to which it is relevant if the victim is the same person who
was the victim of the previous offense that resulted in conviction of the
defendant.
(c) In weighing the probative value of the evidence against undue
prejudice to the defendant, the court may consider:
(d) In a criminal case in which the prosecution intends to offer evidence
under this Section, it must disclose the evidence, including statements of
witnesses or a summary of the substance of any testimony, at a reasonable time
in advance of trial, or during trial if the court excuses pretrial notice on
good cause shown.
(e) In a criminal case in which evidence is offered under this Section,
proof may be made by specific instances of conduct as evidenced by proof of
conviction, testimony as to reputation,
or testimony in the form of an expert opinion, except that the prosecution may
offer
reputation testimony only after the opposing party has offered that
testimony.
(Source: P.A. 90-387, eff. 1-1-98.)
(725 ILCS 5/115-21)
Sec. 115-21. Informant testimony.
(a) For the purposes of this Section, "informant" means
someone who
is purporting to testify about admissions made to him or her by the accused
while detained or incarcerated in a penal institution contemporaneously.
(b) This Section applies to any criminal proceeding brought under Sections 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, 9-3.3, 11-1.30, 11-1.40, or 20-1.1 of the Criminal Code of 1961 or the Criminal Code of 2012, in which
the
prosecution
attempts to introduce evidence of incriminating statements made by the accused
to or overheard by an
informant.
(c) Except as provided in subsection (d-5), in any case under this Section, the prosecution shall disclose at least 30 days prior to a relevant evidentiary hearing or trial:
(d) Except as provided in subsection (d-5), in any case under this Section,
the prosecution shall timely
disclose at least 30 days prior to any relevant evidentiary hearing or trial its intent to introduce the testimony of an informant. The court
shall conduct a
hearing to determine whether the testimony of the informant is
reliable, unless the defendant waives such a hearing. If the
prosecution fails to show by a preponderance of the evidence that the
informant's
testimony
is reliable, the court shall not allow the testimony to be heard at trial. At
this hearing, the
court shall consider the factors enumerated in subsection (c) as well as any
other factors
relating to reliability.
(d-5) The court may permit the prosecution to disclose its intent to introduce the testimony of an informant with less notice than the 30-day notice required under subsections (c) and (d) of this Section if the court finds that the informant was not known prior to the 30-day notice period and could not have been discovered or obtained by the exercise of due diligence by the prosecution prior to the 30-day notice period. Upon good cause shown, the court may set a reasonable notice period under the circumstances or may continue the trial on its own motion to allow for a reasonable notice period, which motion shall toll the speedy trial period under Section 103-5 of this Code for the period of the continuance.
(e) If a lawful recording of an incriminating statement is made of an accused to an informant or made of a statement of an informant to law enforcement or the prosecution, including any deal, promise, inducement, or other benefit offered to the informant, the accused may request a reliability hearing under subsection (d) of this Section and the prosecution shall be subject to the disclosure requirements of subsection (c) of this Section.
(f) (Blank).
(g) This Section applies to all criminal prosecutions under subsection (b) of this Section on or after the effective date of this amendatory Act of the 100th General Assembly.
(Source: P.A. 100-1119, eff. 1-1-19.)
(725 ILCS 5/115-22)
Sec. 115-22. Witness inducements. When the State intends to introduce the
testimony of a witness in a capital case, the State shall, before trial,
disclose to the defendant and to his or her defense counsel the following
information, which shall be reduced to writing:
(Source: P.A. 93-605, eff. 11-19-03.)
(725 ILCS 5/115-23)
Sec. 115-23. Admissibility of cannabis. In a prosecution for a violation of subsection (a) of Section 4 of the Cannabis Control Act or a municipal ordinance for possession of cannabis that is punished by only a fine, cannabis shall only be admitted into evidence based upon:
(Source: P.A. 99-697, eff. 7-29-16.)
(725 ILCS 5/Art. 116 heading)
(725 ILCS 5/116-1) (from Ch. 38, par. 116-1)
Sec. 116-1.
Motion for new trial.
(a) Following a verdict or finding of guilty the court may grant the
defendant a new trial.
(b) A written motion for a new trial shall be filed by the defendant
within 30 days following the entry of a finding or the return of a verdict.
Reasonable notice of the motion shall be served upon the State.
(c) The motion for a new trial shall specify the grounds therefor.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/116-2) (from Ch. 38, par. 116-2)
Sec. 116-2.
Motion in arrest of judgment.
(a) A written motion in arrest
of judgment shall be filed by the defendant within 30 days following the
entry of a verdict or finding of guilty. Reasonable notice of the motion
shall be served upon the State.
(b) The court shall grant the motion when:
(1) The indictment, information or complaint does not charge an offense,
or
(2) The court is without jurisdiction of the cause.
(c) A motion in arrest of judgment attacking the indictment,
information, or complaint on the ground that it does not charge an offense
shall be denied if the indictment, information or complaint apprised the accused of the
precise offense charged with sufficient specificity to prepare his defense
and allow pleading a resulting conviction as a bar to future prosecution
out of the same conduct.
(Source: P.A. 86-391.)
(725 ILCS 5/116-2.1)
Sec. 116-2.1. Motion to vacate prostitution convictions for sex trafficking victims.
(a) A motion under this Section may be filed at any time following the entry of a verdict or finding of guilty where the conviction was under Section 11-14 (prostitution) or Section 11-14.2 (first offender; felony prostitution) of the Criminal Code of 1961 or the Criminal Code of 2012 or a similar local ordinance and the defendant's participation in the offense was a result of having been a trafficking victim under Section 10-9 (involuntary servitude, involuntary sexual servitude of a minor, or trafficking in persons) of the Criminal Code of 1961 or the Criminal Code of 2012; or a victim of a severe form of trafficking under the federal Trafficking Victims Protection Act (22 U.S.C. Section 7102(13)); provided that:
(b) The court may grant the motion if, in the discretion of the court, the violation was a result of the defendant having been a victim of human trafficking. Evidence of such may include, but is not limited to:
Alternatively, the court may consider such other evidence as it deems of sufficient credibility and probative value in determining whether the defendant is a trafficking victim or victim of a severe form of trafficking.
(c) If the court grants a motion under this Section, it must vacate the conviction and may take such additional action as is appropriate in the circumstances.
(Source: P.A. 97-267, eff. 1-1-12; 97-897, eff. 1-1-13; 97-1150, eff. 1-25-13.)
(725 ILCS 5/116-3)
Sec. 116-3. Motion for fingerprint, Integrated Ballistic Identification System, or forensic testing not available at
trial or guilty plea regarding
actual innocence.
(a) A defendant may make a motion before the trial court that entered the
judgment of conviction in his or her case for the performance of fingerprint, Integrated Ballistic Identification System, or
forensic DNA testing, including comparison analysis of genetic marker
groupings of the evidence collected by criminal justice agencies pursuant to
the alleged offense, to those of the defendant, to those of other forensic
evidence, and to those maintained
under subsection (f) of Section 5-4-3 of the Unified Code of Corrections,
on evidence that was secured in relation
to the trial or guilty plea which resulted in his or her conviction, and:
Reasonable notice of the motion shall be served upon the State.
(b) The defendant must present a prima facie case that:
(c) The trial court shall allow the testing under reasonable conditions
designed to protect the State's interests in the integrity of the evidence and
the testing process upon a determination that:
(d) If evidence previously tested pursuant to this Section reveals an unknown fingerprint from the crime scene that does not match the defendant or the victim, the order of the Court shall direct the prosecuting authority to request the Illinois State Police Bureau of Forensic Science to submit the unknown fingerprint evidence into the FBI's Integrated Automated Fingerprint Identification System (AIFIS) for identification.
(e) In the court's order to allow testing, the court shall order the investigating authority to prepare an inventory of
the evidence related to the case and issue a copy of the
inventory to the prosecution, the petitioner, and the court.
(f) When a motion is filed to vacate based on favorable
post-conviction testing results, the State may, upon
request, reactivate victim services for the victim of the
crime
during the pendency of the proceedings, and, as determined by
the court after consultation with the victim or victim
advocate, or both, following final adjudication of the case.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/116-4)
Sec. 116-4. Preservation of evidence for forensic testing.
(a) Before or after the trial in a prosecution for a violation of
Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 12-14.1,
12-15, or 12-16 of the
Criminal Code of 1961 or the Criminal Code of 2012 or in a prosecution for an offense defined in Article 9
of
that Code,
or in a prosecution for an attempt in violation of Section 8-4 of that Code
of any of the above-enumerated
offenses, unless otherwise provided herein under subsection (b) or (c), a law
enforcement agency
or an agent acting on behalf of the law enforcement agency shall
preserve, subject to a continuous chain of
custody, any
physical evidence
in their possession or control that is reasonably likely to contain forensic
evidence,
including, but not limited to, fingerprints or biological material
secured in relation to a trial and with sufficient
documentation to locate
that evidence.
(b) After a judgment of conviction is entered,
the evidence shall
either be impounded
with the Clerk of the Circuit Court or shall be securely retained by a law
enforcement agency.
Retention shall be
permanent in cases where a sentence of death is imposed. Retention shall be
until the
completion of the sentence, including the period of mandatory supervised
release for the
offense, or January 1, 2006, whichever is later, for any conviction for an
offense or an attempt of an offense defined
in Article 9 of the Criminal Code of 1961 or the Criminal Code of 2012 or in Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 12-14.1,
12-15, or
12-16 of the Criminal Code of 1961 or the Criminal Code of 2012 or for 7 years following any conviction for any other felony for which
the
defendant's
genetic profile may be taken by a law enforcement agency and submitted for
comparison in a forensic DNA database for unsolved offenses.
(c) After a judgment of conviction is entered, the
law
enforcement agency
required to retain evidence described in subsection
(a) may petition the court
with notice to the
defendant or, in cases where the defendant has died, his estate, his attorney
of record, or an attorney appointed for that purpose by the court
for entry
of an order allowing it to dispose of evidence if, after a
hearing, the court
determines by a preponderance of the evidence that:
(d) The court may order the disposition of the evidence if the
defendant is allowed
the opportunity to take reasonable measures to remove or preserve portions of
the evidence in
question for future testing.
(d-5) Any order allowing the disposition of evidence pursuant to
subsection (c)
or (d)
shall be a final and appealable order. No evidence shall be disposed of until
30 days after
the order is entered, and if a notice of appeal is filed, no evidence shall be
disposed of
until the mandate has been received by the circuit court from the appellate
court.
(d-10) All records documenting the possession,
control, storage, and destruction of evidence and all police reports, evidence
control or inventory records, and other reports cited in this Section,
including computer records, must be
retained for as
long as the evidence exists and may not be disposed of without the approval of
the Local
Records Commission.
(e) In this Section, "law enforcement agency"
includes any of the following or an agent acting on behalf of any of the
following:
a municipal police department, county sheriff's office, any prosecuting
authority,
the Illinois State Police, or any other State, university, county,
federal, or
municipal police
unit or police force.
"Biological material" includes, but is not limited to, any blood, hair,
saliva, or semen from which
genetic marker groupings may be obtained.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/116-5)
Sec. 116-5. Motion for DNA database search (genetic marker
groupings comparison analysis).
(a) Upon motion by a defendant
charged with any offense where
DNA evidence may be material
to the defense investigation or
relevant at trial, a court may
order a DNA database search
by the Illinois State Police. Such analysis may
include comparing:
(b) If appropriate federal criteria
are met, the court may order the
Illinois State Police to
request the National DNA
index system to search its
database of genetic profiles.
(c) If requested by the defense, a
defense representative shall be
allowed to view any genetic
marker grouping analysis
conducted by the Illinois State Police. The defense
shall be provided with copies of
all documentation,
correspondence, including
digital correspondence, notes,
memoranda, and reports
generated in relation to the
analysis.
(d) Reasonable notice of the
motion shall be served upon the
State.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/Art. 117)
(725 ILCS 5/117-1) (from Ch. 38, par. 117-1)
Sec. 117-1. (Repealed).
(Source: Repealed by P.A. 77-2097, eff. 1-1-73.)
(725 ILCS 5/117-2) (from Ch. 38, par. 117-2)
Sec. 117-2. (Repealed).
(Source: Repealed by P.A. 77-2097, eff. 1-1-73.)
(725 ILCS 5/117-3) (from Ch. 38, par. 117-3)
Sec. 117-3. (Repealed).
(Source: Repealed by P.A. 77-2097, eff. 1-1-73.)
(725 ILCS 5/Art. 118)
(725 ILCS 5/118-1) (from Ch. 38, par. 118-1)
Sec. 118-1. (Repealed).
(Source: Repealed by P.A. 77-2097, eff. 1-1-73.)
(725 ILCS 5/118-2) (from Ch. 38, par. 118-2)
Sec. 118-2. (Repealed).
(Source: Repealed by P.A. 77-2097, eff. 1-1-73.)
(725 ILCS 5/Art. 119 heading)
(725 ILCS 5/119-1)
Sec. 119-1. Death penalty abolished.
(a) Beginning on the effective date of this amendatory Act of the 96th General Assembly, notwithstanding any other law to the contrary, the death penalty is abolished and a sentence to death may not be imposed.
(b) All unobligated and unexpended moneys remaining in the Capital Litigation Trust Fund on the effective date of this amendatory Act of the 96th General Assembly shall be transferred into the Death Penalty Abolition Fund, a special fund in the State treasury, to be expended by the Illinois Criminal Justice Information Authority, for services for families of victims of homicide or murder and for training of law enforcement personnel.
(Source: P.A. 96-1543, eff. 7-1-11.)
(725 ILCS 5/119-5) (from Ch. 38, par. 119-5)
Sec. 119-5.
Execution of Death Sentence.
(a)(1) A defendant sentenced to death shall be executed by an intravenous administration of a lethal quantity of an ultrashort-acting barbiturate in combination with a chemical paralytic agent and potassium chloride or other equally effective substances sufficient to cause death until death is pronounced by a coroner who is not a licensed physician.
(b) In pronouncing the sentence of death the court shall set the date of
the execution which shall be not less than 60 nor more than 90 days from
the date sentence is pronounced.
(c) A sentence of death shall be executed at a Department of
Corrections facility.
(d) The warden of the penitentiary shall supervise such execution,
which shall be conducted in the presence of 6 witnesses who shall certify the
execution of the sentence. The certification shall be filed with the clerk of
the court that imposed the sentence.
(d-5) The Department of Corrections shall not request, require, or allow a
health care practitioner licensed in Illinois,
including but not limited to physicians and nurses, regardless of employment,
to participate in an execution.
(e) Except as otherwise provided in this subsection (e), the identity of
executioners and other persons who participate or
perform ancillary functions in an execution and information contained in
records that would identify those persons shall remain confidential,
shall not be subject to disclosure, and shall not be admissible as evidence
or be discoverable in any action of any kind in any court or before any
tribunal, board, agency, or person. In order to protect the confidentiality
of persons participating in an execution, the Director of Corrections may
direct that the Department make payments in cash for such services.
In confidential investigations by the Department of Professional Regulation,
the Department of Corrections shall disclose the
names and license numbers of health care practitioners participating or
performing ancillary functions in an execution to the
Department of Professional Regulation and the Department of Professional
Regulation shall forward those names and license
numbers to the appropriate disciplinary boards.
(f) The amendatory changes to this Section made by this amendatory Act
of 1991 are severable under Section 1.31 of the Statute on Statutes.
(g) (Blank).
(h) Notwithstanding any other provision of law, any
pharmaceutical supplier is authorized to dispense
drugs to the Director of Corrections or his or her designee, without
prescription, in order to carry out the provisions of this Section.
(i) The amendatory changes to this Section made by this amendatory Act of
the 93rd General Assembly are severable
under Section 1.31 of the Statute on Statutes.
(Source: P.A. 93-379, eff. 7-24-03.)
(725 ILCS 5/Art. 120 heading)
(725 ILCS 5/120-1) (from Ch. 38, par. 120-1)
Sec. 120-1. (Repealed).
(Source: Repealed by P.A. 76-1412, eff. 9-22-69.)
(725 ILCS 5/120-2) (from Ch. 38, par. 120-2)
Sec. 120-2. (Repealed).
(Source: Repealed by Laws 1967, p. 3615.)
(725 ILCS 5/120-3) (from Ch. 38, par. 120-3)
Sec. 120-3. (Repealed).
(Source: Repealed by Laws 1967, p. 3615.)
(725 ILCS 5/120-4) (from Ch. 38, par. 120-4)
Sec. 120-4. (Repealed).
(Source: Repealed by Laws 1967, p. 3615.)
(725 ILCS 5/Art. 121 heading)
(725 ILCS 5/121-1) (from Ch. 38, par. 121-1)
Sec. 121-1.
Application of article.
Unless otherwise provided by Rules of the Supreme Court this Article
shall govern review in all criminal cases.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/121-13) (from Ch. 38, par. 121-13)
Sec. 121-13.
Pauper Appeals.
(a) In any case wherein the defendant was
convicted of a felony, if the court determines that the defendant desires
counsel on appeal but is indigent the Public Defender or the State
Appellate Defender shall be appointed as counsel, unless with the consent
of the defendant and for good cause shown, the court may appoint counsel
other than the Public Defender or the State Appellate Defender.
(b) In any case wherein the defendant
was convicted of a felony and a sentence of death was not imposed in the
trial court the reviewing court, upon petition of the defendant's
counsel made not more frequently than every 60 days after appointment,
shall determine a reasonable amount to be allowed an indigent
defendant's counsel other than the Public Defender or the State
Appellate Defender for compensation and reimbursement of expenditures
necessarily incurred in the prosecution of the appeal or review
proceedings. The compensation shall not exceed $1500 in each case,
except that, in extraordinary circumstances, payment in excess of the
limits herein stated may be made if the reviewing court certifies that
the payment is necessary to provide fair compensation for protracted
representation. The reviewing court shall enter an order directing the
county treasurer of the county where the case was tried to pay the
amount allowed by the court. The reviewing court may order the
provisional payment of sums during the pendency of the cause.
(c) In any case in which a sentence of death was imposed in the
trial court, the Supreme Court, upon written petition of the defendant's
counsel made not more than every 60 days after appointment, shall
determine reasonable compensation for an indigent defendant's attorneys
on appeal. The compensation shall not exceed $2,000 in each case,
except that, in extraordinary circumstances, payment in excess of the
limits herein stated may be made if the reviewing court certifies that
the payment is necessary to provide fair compensation for protracted
representation. The Supreme Court shall enter an order directing the
county treasurer of the county where the case was
tried to pay compensation and reimburse expenditures necessarily incurred
in the prosecution of the appeal or review proceedings. The Supreme Court
may order the provisional payment of sums during the pendency of the cause.
(Source: P.A. 86-318; 87-580.)
(725 ILCS 5/Art. 121A heading)
(725 ILCS 5/121A-1)
Sec. 121A-1. Application of Article. Unless otherwise provided by Rules of the Supreme Court, this Article
shall govern pending direct appeal in all criminal cases after the death of the defendant.
(Source: P.A. 99-778, eff. 1-1-17.)
(725 ILCS 5/121A-2)
Sec. 121A-2. Pending direct appeal after the defendant's death.
(a) Whenever the prosecuting attorney learns of the death of the defendant following the entry of a final and appealable judgment but prior to the conclusion of the defendant's direct appeal from the conviction, he or she shall promptly notify the other party and file a certificate of notice of the defendant's death with the reviewing court before which the direct appeal is pending.
(b) Unless the executor or administrator of the defendant's estate or other successor in interest files a verified motion to intervene in the direct appeal within 30 days of the filing of the certificate under subsection (a) of this Section, the reviewing court shall dismiss the direct appeal without disturbing the judgment of the circuit court.
(c) If the court receives a timely petition for leave to intervene by an authorized party, the reviewing court shall permit the petitioning party to intervene in the direct appeal in place of the defendant and the direct appeal shall proceed in the same manner as if the defendant were still alive. The authority to intervene shall terminate automatically upon completion of the proceedings in the direct appeal.
(d) Nothing in this Section shall be construed to authorize the filing or continued litigation of a post-conviction petition or other collateral attack on a conviction or sentence on behalf of a deceased defendant.
(Source: P.A. 99-778, eff. 1-1-17.)
(725 ILCS 5/Art. 122 heading)
(725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
Sec. 122-1. Petition in the trial court.
(a) Any person imprisoned in the penitentiary may institute a proceeding under this Article if the person asserts that:
(a-5) A proceeding under paragraph (2) of subsection (a)
may be commenced within a reasonable period of time after the person's
conviction
notwithstanding any other provisions of
this Article. In such a proceeding regarding
actual innocence, if the court determines the petition is
frivolous or is patently without merit, it shall dismiss the
petition in a written order, specifying the findings of fact
and conclusions of law it made in reaching its decision.
Such order of dismissal is a final judgment and shall be
served upon the petitioner by certified mail within 10 days
of its entry.
(b) The proceeding shall be commenced by filing with the clerk of the court
in which the conviction took place a petition (together with a copy thereof)
verified by affidavit. Petitioner shall also serve another copy upon the
State's Attorney by any of the methods provided in Rule 7 of the Supreme
Court. The clerk shall docket the petition for consideration by the court
pursuant to Section 122-2.1 upon his or her receipt thereof and bring the same
promptly to the attention of the court.
(c) Except as otherwise provided in subsection (a-5), if
the petitioner is under sentence of death and a petition for writ of certiorari is filed,
no proceedings under this Article shall be commenced more than 6 months after
the conclusion of proceedings in the United States Supreme Court, unless the petitioner alleges facts showing that the delay
was
not due to his or her culpable negligence. If a petition for certiorari is not filed, no proceedings under this Article shall be commenced more than 6 months from the date for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.
When a defendant has a sentence other than death, no proceedings under this
Article shall be commenced more than 6 months after the conclusion of proceedings in the United States Supreme Court, unless the petitioner
alleges facts showing that the delay was not due to his or her culpable
negligence.
If a petition for certiorari is not filed, no proceedings under this Article shall be commenced more than 6 months from the date for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence. If a defendant does not file a direct appeal, the post-conviction petition shall be filed no later than 3 years from the date of conviction, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.
This limitation does not apply to a petition advancing a claim of actual
innocence.
(d) A person seeking relief by filing a petition under this Section must
specify in the petition or its heading that it is filed under this Section.
A trial court that has received a petition complaining of a conviction or
sentence that fails to specify in the petition or its heading that it is
filed under this Section need not evaluate the petition to determine
whether it could otherwise have stated some grounds for relief under
this Article.
(e) A proceeding under this Article may not be commenced on behalf of a
defendant who has been sentenced to death without the written consent of the
defendant, unless the defendant, because of a mental or physical condition, is
incapable of asserting his or her own claim.
(f) Only one petition may be filed by a petitioner under this Article
without leave of the court.
Leave of court may be granted only if a petitioner demonstrates
cause for his or her failure to bring the claim in his or her initial
post-conviction proceedings and prejudice results from that failure. For
purposes
of this subsection (f): (1) a prisoner shows cause by identifying an objective
factor that impeded his or her ability to raise a specific claim during his or
her initial post-conviction proceedings; and (2) a prisoner shows prejudice by
demonstrating that the claim not raised during his or her initial
post-conviction proceedings so infected the trial that the resulting conviction
or
sentence violated due process.
(Source: P.A. 101-411, eff. 8-16-19; 102-639, eff. 8-27-21.)
(725 ILCS 5/122-2) (from Ch. 38, par. 122-2)
Sec. 122-2.
Contents of petition.
The petition shall identify the proceeding in which the petitioner was
convicted, give the date of the rendition of the final judgment complained
of, and clearly set forth the respects in which petitioner's constitutional
rights were violated. The petition shall have attached thereto affidavits,
records, or other evidence supporting its allegations or shall state why
the same are not attached. The petition shall identify any previous
proceedings that the petitioner may have taken to secure relief from his
conviction. Argument and citations and discussion of authorities shall be
omitted from the petition.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/122-2.1) (from Ch. 38, par. 122-2.1)
Sec. 122-2.1. (a) Within 90 days after the filing and docketing of each
petition, the court shall examine such petition and enter an order thereon
pursuant to this Section.
(b) If the petition is not dismissed pursuant to this Section, the court
shall order the petition to be docketed for further consideration in accordance
with Sections 122-4 through 122-6.
If the petitioner is under sentence of death, the court shall order the
petition to be docketed for further consideration and hearing within one year
of the filing of the petition. Continuances may be granted as the court deems
appropriate.
(c) In considering a petition pursuant to this Section, the court may
examine the court file of the proceeding in which the petitioner was convicted,
any action taken by an appellate court in such proceeding and any transcripts
of such proceeding.
(Source: P.A. 93-605, eff. 11-19-03.)
(725 ILCS 5/122-2.2)
Sec. 122-2.2. Intellectual disability and post-conviction relief.
(a) In cases where no determination of an intellectual disability was made and a
defendant has been convicted of first-degree
murder, sentenced to death, and is in custody pending execution of the
sentence of death, the following procedures shall apply:
(b) All other provisions of this Article governing petitions for
post-conviction relief shall apply to a petition for post-conviction relief
alleging an intellectual disability.
(Source: P.A. 99-78, eff. 7-20-15; 99-143, eff. 7-27-15.)
(725 ILCS 5/122-3) (from Ch. 38, par. 122-3)
Sec. 122-3.
Waiver of claims.
Any claim of substantial denial of constitutional rights not raised in
the original or an amended petition is waived.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/122-4) (from Ch. 38, par. 122-4)
Sec. 122-4.
Pauper Petitions.
If the petition is not dismissed pursuant
to Section 122-2.1, and alleges that the petitioner is unable to pay the costs
of the proceeding, the court may order that the petitioner be permitted to
proceed as a poor person and order a transcript of the proceedings
delivered to petitioner in accordance with Rule of the Supreme Court. If
the petitioner is without counsel and alleges that he is without means to
procure counsel, he shall state whether or not he wishes counsel to be
appointed to represent him. If appointment of counsel is so requested, and
the petition is not dismissed pursuant to Section 122-2.1, the
court shall appoint counsel if satisfied that the petitioner has no means
to procure counsel.
A petitioner who is a prisoner in an Illinois Department of Corrections
facility who files a pleading, motion, or other filing that purports to be a
legal document seeking post-conviction
relief under this Article against the State, the Illinois Department of
Corrections, the Prisoner Review Board, or any of their officers or employees
in which the court makes a specific
finding that the pleading, motion, or other filing that purports to be a legal
document is frivolous shall not
proceed as a poor person and shall be liable for the full payment of filing
fees and actual
court costs as provided in Article XXII of the Code of Civil Procedure.
A Circuit Court or the Illinois Supreme Court may appoint the State
Appellate Defender to provide post-conviction representation in a case
in which the defendant is sentenced to death. Any attorney assigned by the
Office of the State Appellate Defender to provide post-conviction
representation for indigent defendants in cases in which a sentence of death
was imposed in the trial court may, from time to time submit bills and time
sheets to the Office of the State Appellate Defender for payment of
services rendered and the Office of the State Appellate Defender shall pay
bills from funds appropriated for this purpose in accordance with rules
promulgated by the State Appellate Defender.
The court, at the conclusion of the proceedings upon receipt of a
petition by the appointed counsel, shall determine a reasonable amount to
be allowed an indigent defendant's counsel other than the Public Defender
or the State Appellate Defender for compensation and reimbursement of
expenditures necessarily incurred in the proceedings. The compensation
shall not exceed $500 in each case, except that, in extraordinary
circumstances, payment in excess of the limits herein stated may be made if
the trial court certifies that the payment is necessary to provide fair
compensation for protracted representation, and the amount is approved by the
chief judge of the circuit. The court shall enter an order directing the
county treasurer of the county where the case was tried to pay the amount
thereby allowed by the court. The court may order the provisional payment
of sums during the pendency of the cause.
(Source: P.A. 90-505, eff. 8-19-97.)
(725 ILCS 5/122-5) (from Ch. 38, par. 122-5)
Sec. 122-5.
Proceedings on petition.)
Within 30 days after the making of an order pursuant to subsection (b) of
Section 122-2.1, or within
such further time as the court may set, the State shall answer or move to
dismiss. In the event that a motion to dismiss is filed and denied, the
State must file an answer within 20 days after such denial. No other or
further pleadings shall be filed except as the court
may order on its own motion or on that of either party. The court may in
its discretion grant leave, at any stage of the proceeding prior to entry
of judgment, to withdraw the petition. The court may in its discretion make
such order as to amendment of the petition or any other pleading, or as to
pleading over, or filing further pleadings, or extending the time of filing
any pleading other than the original petition, as shall be appropriate,
just and reasonable and as is generally provided in civil cases.
(Source: P.A. 83-942.)
(725 ILCS 5/122-6) (from Ch. 38, par. 122-6)
Sec. 122-6. Disposition in trial court.
The court may receive proof by affidavits, depositions, oral testimony,
or other evidence. In its discretion the court may order the petitioner
brought before the court for the hearing. If the court finds in favor of
the petitioner, it shall enter an appropriate order with respect to the
judgment or sentence in the former proceedings and such supplementary
orders as to rearraignment, retrial, custody, conditions of pretrial release or discharge as may be
necessary and proper.
(Source: P.A. 101-652, eff. 1-1-23.)
(725 ILCS 5/122-7) (from Ch. 38, par. 122-7)
Sec. 122-7.
Any final judgment entered upon such petition shall
be reviewed in a manner
pursuant to the rules of the Supreme Court.
(Source: P.A. 79-917.)
(725 ILCS 5/122-8)
Sec. 122-8. (Repealed).
(Source: P.A. 83-942. Repealed by P.A. 96-1200, eff. 7-22-10.)
(725 ILCS 5/122-9)
Sec. 122-9. Motion to resentence by the People.
(a) The purpose of sentencing is to advance public safety through punishment, rehabilitation, and restorative justice. By providing a means to reevaluate a sentence after some time has passed, the General Assembly intends to provide the State's Attorney and the court with another tool to ensure that these purposes are achieved.
(b) At any time upon the recommendation of the State's Attorney of the county in which the defendant was sentenced, the State's Attorney may petition the sentencing court or the sentencing court's successor to resentence the offender if the original sentence no longer advances the interests of justice. The sentencing court or the sentencing court's successor may resentence the offender if it finds that the original sentence no longer advances the interests of justice.
(c) Upon the receipt of a petition for resentencing, the court may resentence the defendant in the same manner as if the offender had not previously been sentenced; however, the new sentence, if any, may not be greater than the initial sentence.
(d) The court may consider postconviction factors, including, but not limited to, the inmate's disciplinary record and record of rehabilitation while incarcerated; evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the inmate's risk for future violence; and evidence that reflects changed circumstances since the inmate's original sentencing such that the inmate's continued incarceration no longer serves the interests of justice. Credit shall be given for time served.
(e) Victims shall be afforded all rights as outlined in the Rights of Crime Victims and Witnesses Act.
(f) A resentencing under this Section shall not reopen the defendant's conviction to challenges that would otherwise be barred.
(g) Nothing in this Section shall be construed to limit the power of the Governor under the Constitution to grant a reprieve, commutation of sentence, or pardon.
(Source: P.A. 102-102, eff. 1-1-22; 102-813, eff. 5-13-22.)
(725 ILCS 5/123)
Sec. 123. (Renumbered).
(Source: P.A. 102-102, eff. 1-1-22. Renumbered by P.A. 102-813, eff. 5-13-22.)
Structure Illinois Compiled Statutes