Summary

On February 7, 2024, Sen. Robert Peters [D] introduced a bill that seeks to drastically expand the protections that are already afforded to minors during custodial interrogations under the Juvenile Court Act of 1987. Illinois Senate Bill 3321 (“SB 3321”) specifically targets the provisions concerning attorney representation for minors during custodial interrogations (705 ILCS 405/5-170) and when statements made by a minor may be used in court proceedings (705 ILCS 405/5-401.5). The bill also seeks to amend the section of the Counties Code concerning the duties of public defenders as they relate to the representation of minors (55 ILCS 5/3-4006).

Current Law

Under current Illinois law, a minor who was under 15 years of age at the time of the commission of a murder or sexual assault must be represented by an attorney during the entire custodial interrogation, and the minor may not waive the right to counsel in a judicial proceeding under this Article. 705 ILCS 405/5-170. This specifically pertains to cases of homicide, criminal sexual assault, aggravated criminal sexual assault, predatory criminal sexual assault of a child, criminal sexual abuse, or aggravated criminal sexual abuse. Id. The law also provides that a public defender may represent and have access to a minor during any such custodial interrogation without fee or appointment. 55 ILCS 5/3-4006.

In addition, the current law provides that the statement of a minor made during a custodial interrogation is presumed to be inadmissible when it is obtained prior to the minor being read their Miranda rights and asked if they want a lawyer and want to talk. 705 ILCS 405/5-401.5(a-5). The law also provides that a statement of a minor is presumed to be inadmissible unless an electronic recording is made of the interrogation. 705 ILCS 405/5-401.5(b). However, the presumption of inadmissibility may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances. 705 ILCS 405/5-401.5(f).

Proposed Changes

SB 3321 proposes an amendment to the current law that would require attorney representation during the entire custodial interrogation for a minor who was under 18 years of age at the time of the commission of any offense under the Criminal Code. It also provides that a minor may not waive the right to counsel in custodial interrogations, and any statement made by a minor before ensuring that the minor is represented by counsel is presumed to be inadmissible.

SB 3321 also provides that any statement of a minor made without counsel present throughout the entire custodial interrogation shall be inadmissible against the minor in any court proceeding. In addition, it seeks to delete the provision providing that the presumption of inadmissibility of a statement made by a suspect at a custodial interrogation may be overcome by a preponderance of the evidence that it was voluntarily given and is reliable, based on the totality of the circumstances.

In conjunction with these changes, SB 3321 would expand the duties of the public defender so that a minor who is charged with any criminal offense may have access to a public defender without fee or appointment during a custodial interrogation.

Support and Opposition

Proponents of SB 3321 claim that minors may not understand the seriousness of their arrest, the importance of obtaining legal representation, or the consequences of waiving their Miranda rights.

As such, they believe that the bill will protect minors during interrogations, reduce false confessions, and prevent them from making statements that could trigger a transfer to adult court.

However, the current law already has protections in place to prevent minors from providing involuntary confessions. Law enforcement groups have also pointed out that parents, who must be informed about arrests of a minor, have the responsibility to obtain an attorney. Lobbying groups for Illinois prosecutors, sheriffs, and chiefs of police have also raised concerns that the bill will discourage and even prevent teens from talking to the police and make it too difficult to solve crimes. They correctly note that, if SB 3321 passes, law enforcement will no longer be able to obtain voluntary confessions from minors before counsel is appointed, speaks with their attorney, and provides such an admission. In addition, it will cause delays in solving crimes and make it more difficult to obtain information from minors who would otherwise be willing to talk to law enforcement, potentially leaving law enforcement to rely solely on either witnesses or technology. It will also prolong the interrogation process, given that officers must wait for an attorney to be present, regardless of whether the minor wants an attorney, which could potentially implicate a minor’s right to their speech.  

Law enforcement groups have indicated that the proposed law does not take into account the age difference or practical, common-sense difference between minors of different ages and intellectual capabilities, as well as the differences in the seriousness of particular crimes. Instead, it provides a blanket rule that all minors investigated for any and all crimes under the Criminal Code must be represented by counsel regardless of their potential wishes, as the law forbids the waiving of such a right, and any statements obtained if they are not provided counsel are inadmissible and not able to be overcome by providing their voluntary nature. Law enforcement advocates have pointed out that the proposed law could, as currently construed, be an impediment to timely finding and locating suspects, witnesses, or harmed individuals, especially if a suspect is willing to cooperate. Importantly, the law is triggered only in custodial interrogations. According to Illinois law, “custodial interrogation” means “any interrogation during which (i) a reasonable person in the subject’s position would consider himself or herself to be in custody and (ii) during which a question is asked that is reasonably likely to elicit an incriminating response.” 725 ILCS 5/103-2.1. These issues will be extraordinarily fact intensive and may require the assistance of counsel if and when this bill passes. 

Key Takeaways

If SB 3321 passes, the following changes will be made to the current law:

• All minors under 18 years of age at the time of the commission of any offense under the Criminal Code must be represented by an attorney during any custodial interrogation and for the entirety of the interrogation.
• If the minor does not have an attorney, a public defender will represent them free of charge.
• Any statements made by a minor during a custodial interrogation without their attorney present cannot be used as evidence against the minor in court.
• There is no way to overcome the presumption of inadmissibility of such statements, and they will be deemed inadmissible even if the statement was voluntarily given.

In addition to the above, any individual conducting an interrogation of a minor still must record the interrogation, read the minor their Miranda rights, and ask “Do you want to have a lawyer?” and “Do you want to talk to me?”

If you have any questions or concerns about this bill, custodial interrogation issues, Miranda or other law enforcement questions, please feel free to reach out at your earliest convenience. We will of course monitor the status of this bill and provide an update as to any changes or its final statutory language. The proposed bill is at this link below:

Illinois-2023-SB3321-Introduced (legiscan.com)

Authored by:

not pictured: Michael Parille