(725 ILCS 5/114‑1) (from Ch. 38, par. 114‑1)
Sec. 114‑1. Motion to dismiss charge.
(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:
(1) The defendant has not been placed on trial in |
| compliance with Section 103‑5 of this Code. | |
(2) The prosecution of the offense is barred by |
| Sections 3‑3 through 3‑8 of the Criminal Code of 1961, as heretofore and hereafter amended. | |
(3) The defendant has received immunity from |
| prosecution for the offense charged. | |
(4) The indictment was returned by a Grand Jury |
| which was improperly selected and which results in substantial injustice to the defendant. | |
(5) The indictment was returned by a Grand Jury |
| which acted contrary to Article 112 of this Code and which results in substantial injustice to the defendant. | |
(6) The court in which the charge has been filed |
| does not have jurisdiction. | |
(7) The county is an improper place of trial.
(8) The charge does not state an offense.
(9) The indictment is based solely upon the |
| testimony of an incompetent witness. | |
(10) The defendant is misnamed in the charge and the |
| misnomer results in substantial injustice to the defendant. | |
(11) The requirements of Section 109‑3.1 have not |
| |
(b) The court shall require any motion to dismiss to be filed within a reasonable time after the defendant has been arraigned. Any motion not filed within such time or an extension thereof shall not be considered by the court and the grounds therefor, except as to subsections (a)(6) and (a)(8) of this Section, are waived.
(c) If the motion presents only an issue of law the court shall determine it without the necessity of further pleadings. If the motion alleges facts not of record in the case the State shall file an answer admitting or denying each of the factual allegations of the motion.
(d) When an issue of fact is presented by a motion to dismiss and the answer of the State the court shall conduct a hearing and determine the issues.
(d‑5) When a defendant seeks dismissal of the charge upon the ground set forth in subsection (a)(7) of this Section, the defendant shall make a prima facie showing that the county is an improper place of trial. Upon such showing, the State shall have the burden of proving, by a preponderance of the evidence, that the county is the proper place of trial.
(e) Dismissal of the charge upon the grounds set forth in subsections (a)(4) through (a)(11) of this Section shall not prevent the return of a new indictment or the filing of a new charge, and upon such dismissal the court may order that the defendant be held in custody or, if the defendant had been previously released on bail, that the bail be continued for a specified time pending the return of a new indictment or the filing of a new charge.
(f) If the court determines that the motion to dismiss based upon the grounds set forth in subsections (a)(6) and (a)(7) is well founded it may, instead of dismissal, order the cause transferred to a court of competent jurisdiction or to a proper place of trial.
(Source: P.A. 92‑16, eff. 6‑28‑01.) |
(725 ILCS 5/114‑4) (from Ch. 38, par. 114‑4)
Sec. 114‑4. Motion for continuance.
(a) The defendant or the State may move for a continuance. If the motion is made more than 30 days after arraignment the court shall require that it be in writing and supported by affidavit.
(b) A written motion for continuance made by defendant more than 30 days after arraignment may be granted when:
(1) Counsel for the defendant is ill, has died, or |
| is held to trial in another cause; or | |
(2) Counsel for the defendant has been unable to |
| prepare for trial because of illness or because he has been held to trial in another cause; or | |
(3) A material witness is unavailable and the |
| defense will be prejudiced by the absence of his testimony; however, this shall not be a ground for continuance if the State will stipulate that the testimony of the witness would be as alleged; or | |
(4) The defendant cannot stand trial because of |
| physical or mental incompetency; or | |
(5) Pre‑trial publicity concerning the case has |
| caused a prejudice against defendant on the part of the community; or | |
(6) The amendment of a charge or a bill of |
| particulars has taken the defendant by surprise and he cannot fairly defend against such an amendment without a continuance. | |
(c) A written motion for continuance made by the State more than 30 days after arraignment may be granted when:
(1) The prosecutor assigned to the case is ill, has |
| died, or is held to trial in another cause; or | |
(2) A material witness is unavailable and the |
| prosecution will be prejudiced by the absence of his testimony; however this shall not be a ground for continuance if the defendant will stipulate that the testimony of the witness would be as alleged; or | |
(3) Pre‑trial publicity concerning the case has |
| caused a prejudice against the prosecution on the part of the community. | |
(d) The court may upon the written motion of either party or upon the court's own motion order a continuance for grounds not stated in subsections (b) and (c) of this Section if he finds that the interests of justice so require.
(e) All motions for continuance are addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the movant. Where 1 year has expired since the filing of an information or indictments, filed after January 1, 1980, if the court finds that the State has failed to use due diligence in bringing the case to trial, the court may, after a hearing had on the cause, on its own motion, dismiss the information or indictment. Any demand that the defendant had made for a speedy trial under Section 103‑5 of this code shall not abate if the State files a new information or the grand jury reindicts in the cause.
After a hearing has been held upon the issue of the State's diligence and the court has found that the State has failed to use due diligence in pursuing the prosecution, the court may not dismiss the indictment or information without granting the State one more court date upon which to proceed. Such date shall be not less than 14 nor more than 30 days from the date of the court's finding. If the State is not prepared to proceed upon that date, the court shall dismiss the indictment or information, as provided in this Section.
(f) After trial has begun a reasonably brief continuance may be granted to either side in the interests of justice.
(g) During the time the General Assembly is in session, the court shall, on motion of either party or on its own motion, grant a continuance where the party or his attorney is a member of either house of the General Assembly whose presence is necessary for the full, fair trial of the cause and, in the case of an attorney, where the attorney was retained by the party before the cause was set for trial.
(h) This Section shall be construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the State to a speedy, fair and impartial trial.
(i) Physical incapacity of a defendant may be grounds for a continuance at any time. If, upon written motion of the defendant or the State or upon the court's own motion, and after presentation of affidavits or evidence, the court determines that the defendant is physically unable to appear in court or to assist in his defense, or that such appearance would endanger his health or result in substantial prejudice, a continuance shall be granted. If such continuance precedes the appearance of counsel for such defendant the court shall simultaneously appoint counsel in the manner prescribed by Section 113‑3 of this Act. Such continuance shall suspend the provisions of Section 103‑5 of this Act, which periods of time limitation shall commence anew when the court, after presentation of additional affidavits or evidence, has determined that such physical incapacity has been substantially removed.
(j) In actions arising out of building code violations or violations of municipal ordinances caused by the failure of a building or structure to conform to the minimum standards of health and safety, the court shall grant a continuance only upon a written motion by the party seeking the continuance specifying the reason why such continuance should be granted.
(k) In prosecutions for violations of Section 10‑1, 10‑2, 12‑13, 12‑14, 12‑14.1, 12‑15 or 12‑16 of the "Criminal Code of 1961" involving a victim or witness who is a minor under 18 years of age, the court shall, in ruling on any motion or other request for a delay or continuance of proceedings, consider and give weight to the adverse impact the delay or continuance may have on the well‑being of a child or witness.
(l) The court shall consider the age of the victim and the condition of the victim's health when ruling on a motion for a continuance.
(Source: P.A. 89‑428, eff. 12‑13‑95; 89‑462, eff. 5‑29‑96.) |
(725 ILCS 5/114‑6) (from Ch. 38, par. 114‑6)
Sec. 114‑6. Change of place of trial.) (a) A defendant may move the court for a change of place of trial on the ground that there exists in the county in which the charge is pending such prejudice against him on the part of the inhabitants that he cannot receive a fair trial in such county.
(b) The motion shall be in writing and supported by affidavit which shall state facts showing the nature of the prejudice alleged. The State may file counter‑affidavits. The court shall conduct a hearing and determine the merits of the motion.
(c) If the court determines that there exists in the county where the prosecution is pending such prejudice against the defendant that he cannot receive a fair trial it shall transfer the cause to the circuit court in any county where a fair trial may be had.
(d) In all cases of change of place of trial the clerk of the court from which the change is granted shall immediately prepare a full transcript of the record and proceedings in the case, and of the petition, affidavits and order for the change of place of trial, and transmit the same, together with all papers filed in the case, including the indictment and recognizances of the defendant and all witnesses, to the proper court. If the change is granted to a part but not all of several defendants, a certified copy of the indictment or information, and of the other papers in the case, shall be transmitted to the court to which the change of place of trial is ordered, and such certified copies shall stand as the originals. Such transcript and papers may be transmitted by mail, or in such other way as the court may direct.
(e) When the applicant is in custody or confined in jail, the court shall enter an order directed to the sheriff or other officer having custody of the applicant, to remove his body to the common jail of the county to which the place of trial is changed, and there deliver him to the keeper of the jail, together with the warrant by virtue of which he is confined or held in custody, not more than 3 days next before the day upon which the trial is to commence in the court; and the sheriff shall obey such order and shall endorse on such warrant of commitment the reason of the change of custody, and shall deliver such warrant, with the body of the prisoner, to the keeper of the jail of the proper county, who shall receive the same and give to the sheriff a receipt therefor, and shall take charge of and keep the prisoner in the same manner as if he had originally been committed to his custody.
(f) When the place of trial is changed in any criminal case, the parties and witnesses, and all others who may have entered recognizances to attend the trial of such cause, having notice of the change of place of trial, must attend at the time and place at which the trial is to be had according to such change, and a failure to do so shall operate as a forfeiture of the recognizance.
(g) When the place of trial is changed the State's attorney shall have all the witnesses on the part of the prosecution recognized to appear at the court to which the change is ordered on the day upon which the trial is to commence.
(h) Upon the termination of any trial, when a change of place of trial has been obtained, the clerk of the court in which the trial is had shall submit a certified statement of all costs, fees, charges, claims and expenses resulting from such change of place of trial and necessarily incurred in connection with or incident to the trial of the case, or any appeal therefrom, or required in executing any and all orders of the court made in the case, but shall not include charges for the use of the courtroom or the facilities thereof, nor shall it include fees or salaries paid to employees of the county in which the trial is held, unless it is made necessary by reason of such trial, and when so certified, the items thereof shall be paid by the county in which such indictment or information was found to the officers and persons entitled thereto. All fines imposed and collected in the county where the trial is had, shall be paid over to the county in which the indictment or information was found.
(Source: P.A. 82‑280.) |
(725 ILCS 5/114‑11) (from Ch. 38, par. 114‑11)
Sec. 114‑11. Motion to Suppress Confession.
(a) Prior to the trial of any criminal case a defendant may move to suppress as evidence any confession given by him on the ground that it was not voluntary.
(b) The motion shall be in writing and state facts showing wherein the confession is involuntary.
(c) If the allegations of the motion state facts which, if true, show that the confession was not voluntarily made the court shall conduct a hearing into the merits of the motion.
(d) The burden of going forward with the evidence and the burden of proving that a confession was voluntary shall be on the State. Objection to the failure of the State to call all material witnesses on the issue of whether the confession was voluntary must be made in the trial court.
(e) The motion shall be made only before a court with jurisdiction to try the offense.
(f) The issue of the admissibility of the confession shall not be submitted to the jury. The circumstances surrounding the making of the confession may be submitted to the jury as bearing upon the credibility or the weight to be given to the confession.
(g) The motion shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion. If the motion is made during trial, and the court determines that the motion is not untimely, and the court conducts a hearing on the merits and enters an order suppressing the confession, the court shall terminate the trial with respect to every defendant who was a party to the hearing and who was within the scope of the order of suppression, without further proceedings, unless the State files a written notice that there will be no interlocutory appeal from such order of suppression. In the event of such termination, the court shall proceed with the trial of other defendants not thus affected. Such termination of trial shall be proper and shall not bar subsequent prosecution of the identical charges and defendants; however, if after such termination the State fails to prosecute the interlocutory appeal until a determination of the merits of the appeal by the reviewing court, the termination shall be improper within the meaning of subparagraph (a) (3) of Section 3‑‑4 of the "Criminal Code of 1961", approved July 28, 1961, as amended, and subsequent prosecution of such defendants upon such charges shall be barred.
(Source: P. A. 76‑1096.) |
(725 ILCS 5/114‑12) (from Ch. 38, par. 114‑12)
Sec. 114‑12. Motion to Suppress Evidence Illegally Seized. (a) A defendant aggrieved by an unlawful search and seizure may move the court for the return of property and to suppress as evidence anything so obtained on the ground that:
(1) The search and seizure without a warrant was illegal; or
(2) The search and seizure with a warrant was illegal because the warrant is insufficient on its face; the evidence seized is not that described in the warrant; there was not probable cause for the issuance of the warrant; or, the warrant was illegally executed.
(b) The motion shall be in writing and state facts showing wherein the search and seizure were unlawful. The judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were unlawful shall be on the defendant. If the motion is granted the property shall be restored, unless otherwise subject to lawful detention, and it shall not be admissible in evidence against the movant at any trial.
(1) If a defendant seeks to suppress evidence because of the conduct of a peace officer in obtaining the evidence, the State may urge that the peace officer's conduct was taken in a reasonable and objective good faith belief that the conduct was proper and that the evidence discovered should not be suppressed if otherwise admissible. The court shall not suppress evidence which is otherwise admissible in a criminal proceeding if the court determines that the evidence was seized by a peace officer who acted in good faith.
(2) "Good faith" means whenever a peace officer obtains evidence:
(i) pursuant to a search or an arrest warrant obtained from a neutral and detached judge, which warrant is free from obvious defects other than non‑deliberate errors in preparation and contains no material misrepresentation by any agent of the State, and the officer reasonably believed the warrant to be valid; or
(ii) pursuant to a warrantless search incident to an arrest for violation of a statute or local ordinance which is later declared unconstitutional or otherwise invalidated.
(3) This amendatory Act of 1987 shall not be construed to limit the enforcement of any appropriate civil remedy or criminal sanction in actions pursuant to other provisions of law against any individual or government entity found to have conducted an unreasonable search or seizure.
(4) This amendatory Act of 1987 does not apply to unlawful electronic eavesdropping or wiretapping.
(c) The motion shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion. If the motion is made during trial, and the court determines that the motion is not untimely, and the court conducts a hearing on the merits and enters an order suppressing the evidence, the court shall terminate the trial with respect to every defendant who was a party to the hearing and who was within the scope of the order of suppression, without further proceedings, unless the State files a written notice that there will be no interlocutory appeal from such order of suppression. In the event of such termination, the court shall proceed with the trial of other defendants not thus affected. Such termination of trial shall be proper and shall not bar subsequent prosecution of the identical charges and defendants; however, if after such termination the State fails to prosecute the interlocutory appeal until a determination of the merits of the appeal by the reviewing court, the termination shall be improper within the meaning of subparagraph (a) (3) of Section 3‑4 of the "Criminal Code of 1961", approved July 28, 1961, as amended, and subsequent prosecution of such defendants upon such charges shall be barred.
(d) The motion shall be made only before a court with jurisdiction to try the offense.
(e) The order or judgment granting or denying the motion shall state the findings of facts and conclusions of law upon which the order or judgment is based.
(Source: P.A. 85‑388.) |
(725 ILCS 5/114‑13) (from Ch. 38, par. 114‑13)
Sec. 114‑13. Discovery in criminal cases.
(a) Discovery procedures in criminal cases shall be in accordance with Supreme Court Rules.
(b) Any public investigative, law enforcement, or other public agency responsible for investigating any homicide offense or participating in an investigation of any homicide offense, other than defense investigators, shall provide to the authority prosecuting the offense all investigative material, including but not limited to reports, memoranda, and field notes, that have been generated by or have come into the possession of the investigating agency concerning the homicide offense being investigated. In addition, the investigating agency shall provide to the prosecuting authority any material or information, including but not limited to reports, memoranda, and field notes, within its possession or control that would tend to negate the guilt of the accused of the offense charged or reduce his or her punishment for the homicide offense. Every investigative and law enforcement agency in this State shall adopt policies to ensure compliance with these standards. Any investigative, law enforcement, or other public agency responsible for investigating any "non‑homicide felony" offense or participating in an investigation of any "non‑homicide felony" offense, other than defense investigators, shall provide to the authority prosecuting the offense all investigative material, including but not limited to reports and memoranda that have been generated by or have come into the possession of the investigating agency concerning the "non‑homicide felony" offense being investigated. In addition, the investigating agency shall provide to the prosecuting authority any material or information, including but not limited to reports and memoranda, within its possession or control that would tend to negate the guilt of the accused of the "non‑homicide felony" offense charged or reduce his or her punishment for the "non‑homicide felony" offense. This obligation to furnish exculpatory evidence exists whether the information was recorded or documented in any form. Every investigative and law enforcement agency in this State shall adopt policies to ensure compliance with these standards.
(Source: P.A. 93‑605, eff. 11‑19‑03.) |