Illinois has three statutes requiring recording of custodial interrogations.
2003 re homicide suspects: 705 ILCS 405/5-401.5 (juveniles) and 725 ILCS 5/103-2.1 (adults).
2005 re vehicular homicide: 725 ILCS 5/103-2.1(b).
2013 re various felonies: 705 ILCS 401.5(G-5), 40 5/5 (juveniles) and 725 ILCS 103-21(G-5) (adults); predatory criminal assault of a child, and aggravated arson; aggravated kidnapping, aggravated vehicular kidnapping, and home invasion aggravated criminal sexual assault, armed robbery, and aggravated battery based on use of a firearm.
Custodial interrogations relating to specified felonies conducted at a place of detention shall be electronically recorded by motion picture, audiotape, videotape, or digital recording. § 5/103-2.1(a)(b).
Circumstances that excuse recording
Nothing precludes the admission of unrecorded statements taken when electronic recording was not feasible; that constitute a voluntary statement that has a bearing on the credibility of the accused as a witness; if the suspect requests, prior to making the statement, to respond only if an electronic recording is not made, and a recording is made of the request; if the interrogation is conducted outside Illinois; or if the officers were unaware of facts and circumstances that would create probable cause to believe that the accused committed an offense required to be recorded. The state has the burden of proving by a preponderance of the evidence that one of the exceptions is applicable. § 5/103-2.1(e).
Consequences of unexcused failure to record
If the court finds by a preponderance of the evidence that the defendant was subjected to a custodial interrogation in violation of § 5/103-2.1(b), any statements made by the defendant during or following that interrogation, even if otherwise in compliance with § 5/103-2.1, are presumed to be inadmissible in any criminal proceeding against the defendant, except for purposes of impeachment. § 5/103- 2.1(b), (d).
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. § 5/103-2.1(f).
Nothing in this section precludes admission of a statement, otherwise inadmissible under this section, that is used for impeachment and not as substantive evidence. § 5/103-2.1(e).
“Every electronic recording required under this Section must be preserved until such time as the defendant's conviction for any offense relating to the statement is final and all direct and habeas corpus appeals are exhausted, or the prosecution of such offenses is barred by law.” § 5/103-2.1(c).
The Illinois Eavesdropping Act was amended to provide that, when questioning suspects under the foregoing provisions, officers do not have to advise suspects that they are being electronically recorded. 720 ILCS § 5/14-3(k).
In People v. Quevedo, 403 Ill. App. 3d 282, 293, 932 N.E.2d 642, 652 (2010), based upon a videotaped interrogation, the Illinois Appellate Court ruled that the defendant voluntarily waived his right to have an appointed attorney present during the interview. See also, to the same effect, People v. Polk, 942 N.E.2d 347 (Ill. App. 2011).
In People v. Kladis, 960 N.E.2d 1104, 1110 (Ill. 2011), the Illinois Supreme Court said:
Since , the use of video recordings as evidence at trial has become a common practice to allow a defendant the opportunity to present an effective defense and to further the truth-seeking process. We recently reaffirmed the general admissibility of such evidence (People v. Taylor, 956 N.E.2d 431), and courts across the country are increasingly relying on video recordings to present an objective view of the facts in a case. See, e.g., Scott v. Harris, 550 U.S. 372 (2007) (relying on a squad car video recording, Supreme Court reversed lower court’s denial of summary judgment on claim against the officer for the use of excessive force; Court found that a videotape capturing the events in question clearly contradicted the version of the story told by the driver and adopted by the court of appeals, and stated that the court of appeals should have viewed the facts in the light depicted by the videotape); United States v. Prokupek, 632 F.3d 460 (8th Cir. 2011) (reversing the district court’s denial of the defendant’s motion to suppress on the basis that the officer’s testimony at the suppression hearing was clearly contradicted by his contemporaneous statements captured on the squad- car video recording).
People v. Rivera, 2011 Ill. App. 2d 091060, 962 N.E.2d 53 (2011), provides an example of an unrecorded written confession taken in 1992, which the reviewing court found to be unreliable and insufficient to provide support for a murder conviction. He has been released after serving 20 years in prison.
People v. Harper, 2012 Ill. App. 4th 110880, 969 N.E.2d 573 (2012), the Appellate Court discussed the concluding provision of the Illinois statute, which provides, “The presumption of inadmissibility of a statement made by a suspect at a custodial interrogation at a police station 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.” 725 ILCS 5/103-2.1(f).
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Harris v. Thompson, 698 F.3d 609 (7th Cir. 2012). A jury in an Illinois state court convicted Ms. Harris of murdering her four year old son, conviction affirmed, 904 N.E.2d 1077 (Ill. App. 2009), leave to appeal to the IL Supreme Court denied. Harris’ federal habeas corpus petition denied by the District Court, 2011 WL 6257143 (N.D. Ill., 2011). The 7th Circuit Court of Appeals reversed and remanded to the state court for a new trial, based upon prejudicial exclusion of a defense eyewitness. As to Harris’ videotaped confession, the Court found that “the jury had reasons to question its reliability, too – reasons in line with leading research on false confessions.” The Court called attention to the length of the interrogation, “stretching over 27 hours” of “a mother who had just lost her son, she was under stress and stricken with grief,” who “did not have an attorney during this questioning,” and whose “initial, unwarned confession was inconsistent with the physical evidence…Only in later confessions (and after many more hours of interrogations) did she correct this curious discrepancy” relating to how the child’s death occurred. (698 F.3d at 631). The State’s Attorney declined to re-prosecute Ms. Harris, and she has been released after serving over seven years in prison.
In People v. Koh, No. 09-CR 9151, Circuit Court of Cook County, Criminal, Division (2012), the defendant was charged with first degree murder of his son. The defendant was not proficient in English. During a lengthy videotaped interrogation, he made statements which the prosecution claimed amounted to a confession. After hearing the testimony of the detective, and viewing the videotape, the jury quickly acquitted the defendant. He was released after serving several years in prison awaiting trial.
People v. Travis, 2013 Ill. App. 3d 110170, 985 N.E.2d 1019 (2013). Following a bench trial, Travis was convicted of first degree murder. On appeal, the Appellate Court reversed and remanded for a new trial, holding that the recorded interview during which Travis confessed was involuntarily given, owing to the absence of a juvenile officer during the questioning of the 15 year old suspect, and the detective’s “misleading promises of leniency.” (985 N.E.2d at 1034.)
People v. Clayton, 2014 Ill. App. 130743, ¶ 23, 19 N.E.3d 1214, 1220 (2014): Dominique Clayton was charged with murder after police conducted three interviews with her. The first interview took place at a police station and was not recorded. The Appellate Court of Illinois held that the failure of police to record the initial interview violated Illinois’ statutes requiring police to electronically record interviews with suspects in custody. The court explained that Clayton was in custody during the first interview since a reasonable person in the circumstances would not have felt free to leave, given that Clayton was seventeen at the time; was not accompanied to the police station by her parents; and did not have a way to return home independently.