Article 115 - Trial
(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 5/115‑2) (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: (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 1961, as amended, and subsections (a), (b) and (e) of Section 6‑2 of the Criminal Code of 1961, as amended; 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 1961, as amended, at the time of the offense. (Source: P.A. 86‑392.) |
(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 1961, as amended, and subsections (a), (b) and (e) of Section 6‑2 of the Criminal Code of 1961, as amended; 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 1961, as amended, 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. 86‑392.) |
(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 bail 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 forfeited his bail bond 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. 90‑787, eff. 8‑14‑98.) |
(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: (1) Such writing or record has been made by anyone | ||
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(2) Such writing or record has been made by anyone | ||
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(Source: P.A. 91‑548, eff. 1‑1‑00.) |
(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 1961 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 1961 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. 82‑553.) |
(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 12‑12 of the Criminal Code of 1961; 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. 89‑428, eff. 12‑13‑95; 89‑462, eff. 5‑29‑96; 90‑132, eff. 1‑1‑98.) |
(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 12‑13 through 12‑16 of the Criminal Code of 1961, or ritualized abuse of a child under Section 12‑33 of the Criminal Code of 1961, 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. 87‑1167.) |
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(2) the defendant is accused of battery, aggravated | ||
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(3) the defendant is tried or retried for any of the | ||
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(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: (1) the proximity in time to the charged or | ||
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(2) the degree of factual similarity to the charged | ||
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(3) other relevant facts and circumstances. (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, 12‑4, 12‑13, 12‑14, 12‑14.1, 12‑15, 12‑16, or 18‑5 of the Criminal Code of 1961, 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. 95‑892, eff. 1‑1‑09.) |
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(2) the degree of factual similarity to the charged | ||
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(3) other relevant facts and circumstances. (c) In a criminal case in which the prosecution intends | ||
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(d) In a criminal case in which evidence is offered under | ||
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(Source: P.A. 95‑360, eff. 8‑23‑07.) |
(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.) |