Illinois will have a new rule of criminal procedure effective January 1, 2019. The statute is 725 ILCS 5/115-21. It is not retroactively effective (21(g)) The rule of criminal procedure deals with informant testimony, otherwise known as “snitch testimony”. When capital punishment existed in Illinois, this statute protected Defendants by providing for a hearing to determine the reliability of the informant testimony because the informant may be testifying for improper reasons. The Illinois legislature has now amended the law so that it applies to non-capital cases. A breakdown of the major issues is as follows:
- This rule only applies to “informant” testimony, which means it must be (1) an admission; (2) made by the accused to the informant; (3) while the informant is detained or incarcerated; (4) in a penal institution contemporaneously. (21(a))
Although there may be some dispute as to the meaning of the word “penal institution”, it is probable that the provided definition will control in general circumstances unless overridden in the section specific statute (See: 720 ILCS 5/2-14 including jails compared to 720 ILCS 5/24-1.1 (b) , 720 ILCS 5/31A-1.1(g), and 720 ILCS 5/11-9.2(g)(1) implying penal institution is Department of Corrections). Therefore, the informant must be incarcerated at the same time as the Defendant and does not apply if the informant was free at the time of the statement.
- The rule only applies to a limited number of offenses, namely: 720 ILCS 5/9-1 (First Degree Murder), 1.2 (Intentional Homicide of an Unborn Child), 2 (Second Degree Murder), 2.1 (Voluntary Manslaughter of an Unborn Child), 3 (Involuntary Manslaughter and Reckless Homicide), 3.2 (Involuntary Manslaughter and Reckless Homicide of an Unborn Child), 3.3 (Drug Induced Homicide), 11-1.30 (Aggravated Criminal Sexual Assault), 1.4 (Predatory Criminal Sexual Assault of a Child), and 20-1.1 (Aggravated Arson. (21(b))
- The rule requires disclosure at least 30 days prior to a relevant evidentiary hearing or trial
(1) The complete criminal history of the informant;
(2) Any deal, promise, inducement, or benefit that the offering party has made or will make in the future to the informant;
(3) The statements made by the accused;
(4) The time and place of the statements, the time and place of their disclosure to law enforcement officials, and the name of all persons who were present when the statements were made;
(5) Whether at any time the informant recanted that testimony or statement and, if so, the time and place of the recantation, the nature of the recantation, and the names of the persons who were present at the recantation;
(6) Other cases in which the informant testified, providing that the existence of such testimony can be ascertained through reasonable inquiry and whether the informant received any promise, inducement, or benefit in exchange for or subsequent to that testimony or statement; and
(7) Any other information relevant to the informant’s testimony. (21(c))
Further, the burden is on the prosecution to disclose 30 days before any relevant evidentiary hearing or trial and have the Court conduct a hearing to determine whether the informant is reliable. According to section (d), the burden is on the state to show by a preponderance of the evidence that the informant’s testimony is reliable. (21(d))
In addition, the Court is permitted to toll a Defendant’s speedy trial period upon good cause show if informant testimony was not well known prior to the 30 day notice period in order to set a reasonable notice period. (21(d-5))
Finally, if there is a lawful recording of the incriminating statement made by the accused, OR of a statement from an informant to law enforcement or the prosecution, including any deal or other benefit offered to the informant, the accused is permitted to request a reliability hearing (21(e)).