Title IV - Proceedings To Commence Prosecution
(725 ILCS 5/Tit. IV heading) TITLE IV. PROCEEDINGS TO COMMENCE PROSECUTION
(725 ILCS 5/Art. 111 heading) ARTICLE 111. CHARGING AN OFFENSE
(725 ILCS 5/111‑1) (from Ch. 38, par. 111‑1)
Sec. 111‑1. Methods of prosecution.
When authorized by law a prosecution may be commenced by:
(a) A complaint;
(b) An information;
(c) An indictment.
Upon commencement of a prosecution for a violation of Section 11‑501 of The Illinois Vehicle Code, or a similar provision of a local ordinance, or Section 9‑3 of the Criminal Code of 1961, as amended, relating to the offense of reckless homicide, the victims of these offenses shall have all the rights under this Section as they do in Section 4 of the Bill of Rights for Victims and Witnesses of Violent Crime Act.
For the purposes of this Section "victim" shall mean an individual who has suffered personal injury as a result of the commission of a violation of Section 11‑501 of The Illinois Vehicle Code, or a similar provision of a local ordinance, or Section 9‑3 of the Criminal Code of 1961, as amended, relating to the offense of reckless homicide. In regard to a violation of Section 9‑3 of the Criminal Code of 1961, as amended, relating to the offense of reckless homicide, "victim" shall also include, but not be limited to, spouse, guardian, parent, or other family member.
(Source: P.A. 84‑272.) |
(725 ILCS 5/111‑2) (from Ch. 38, par. 111‑2)
Sec. 111‑2. Commencement of prosecutions.
(a) All prosecutions of felonies shall be by information or by indictment. No prosecution may be pursued by information unless a preliminary hearing has been held or waived in accordance with Section 109‑3 and at that hearing probable cause to believe the defendant committed an offense was found, and the provisions of Section 109‑3.1 of this Code have been complied with.
(b) All other prosecutions may be by indictment, information or complaint.
(c) Upon the filing of an information or indictment in open court charging the defendant with the commission of a sex offense defined in any Section of Article 11 of the Criminal Code of 1961, as amended, and a minor as defined in Section 1‑3 of the Juvenile Court Act of 1987, as amended, is alleged to be the victim of the commission of the acts of the defendant in the commission of such offense, the court may appoint a guardian ad litem for the minor as provided in Section 2‑17, 3‑19, 4‑16 or 5‑610 of the Juvenile Court Act of 1987.
(d) Upon the filing of an information or indictment in open court, the court shall immediately issue a warrant for the arrest of each person charged with an offense directed to a peace officer or some other person specifically named commanding him to arrest such person.
(e) When the offense is bailable, the judge shall endorse on the warrant the amount of bail required by the order of the court, and if the court orders the process returnable forthwith, the warrant shall require that the accused be arrested and brought immediately into court.
(f) Where the prosecution of a felony is by information or complaint after preliminary hearing, or after a waiver of preliminary hearing in accordance with paragraph (a) of this Section, such prosecution may be for all offenses, arising from the same transaction or conduct of a defendant even though the complaint or complaints filed at the preliminary hearing charged only one or some of the offenses arising from that transaction or conduct.
(Source: P.A. 90‑590, eff. 1‑1‑99.) |
(725 ILCS 5/111‑3) (from Ch. 38, par. 111‑3)
Sec. 111‑3. Form of charge.
(a) A charge shall be in writing and allege the commission of an offense by:
(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have |
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(3) Setting forth the nature and elements of the |
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(4) Stating the date and county of the offense as |
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(5) Stating the name of the accused, if known, and if |
| not known, designate the accused by any name or description by which he can be identified with reasonable certainty. |
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(b) An indictment shall be signed by the foreman of the Grand Jury and an information shall be signed by the State's Attorney and sworn to by him or another. A complaint shall be sworn to and signed by the complainant; provided, that when a peace officer observes the commission of a misdemeanor and is the complaining witness, the signing of the complaint by the peace officer is sufficient to charge the defendant with the commission of the offense, and the complaint need not be sworn to if the officer signing the complaint certifies that the statements set forth in the complaint are true and correct and are subject to the penalties provided by law for false certification under Section 1‑109 of the Code of Civil Procedure and perjury under Section 32‑2 of the Criminal Code of 1961; and further provided , however, that when a citation is issued on a Uniform Traffic Ticket or Uniform Conservation Ticket (in a form prescribed by the Conference of Chief Circuit Judges and filed with the Supreme Court), the copy of such Uniform Ticket which is filed with the circuit court constitutes a complaint to which the defendant may plead, unless he specifically requests that a verified complaint be filed.
(c) When the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence and shall state such prior conviction so as to give notice to the defendant. However, the fact of such prior conviction and the State's intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial. For the purposes of this Section, "enhanced sentence" means a sentence which is increased by a prior conviction from one classification of offense to another higher level classification of offense set forth in Section 5‑4.5‑10 of the Unified Code of Corrections (730 ILCS 5/5‑4.5‑10); it does not include an increase in the sentence applied within the same level of classification of offense.
(c‑5) Notwithstanding any other provision of law, in all cases in which the imposition of the death penalty is not a possibility, if an alleged fact (other than the fact of a prior conviction) is not an element of an offense but is sought to be used to increase the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense, the alleged fact must be included in the charging instrument or otherwise provided to the defendant through a written notification before trial, submitted to a trier of fact as an aggravating factor, and proved beyond a reasonable doubt. Failure to prove the fact beyond a reasonable doubt is not a bar to a conviction for commission of the offense, but is a bar to increasing, based on that fact, the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for that offense. Nothing in this subsection (c‑5) requires the imposition of a sentence that increases the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense if the imposition of that sentence is not required by law.
(d) At any time prior to trial, the State on motion shall be permitted to amend the charge, whether brought by indictment, information or complaint, to make the charge comply with subsection (c) or (c‑5) of this Section. Nothing in Section 103‑5 of this Code precludes such an amendment or a written notification made in accordance with subsection (c‑5) of this Section.
(e) The provisions of subsection (a) of Section 5‑4.5‑95 of the Unified Code of Corrections (730 ILCS 5/5‑4.5‑95) shall not be affected by this Section.
(Source: P.A. 95‑1052, eff. 7‑1‑09; 96‑1206, eff. 1‑1‑11.) |
(725 ILCS 5/111‑4) (from Ch. 38, par. 111‑4)
Sec. 111‑4. Joinder of offenses and defendants.
(a) Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same comprehensive transaction.
(b) Two or more defendants may be charged in the same indictment, information or complaint if they are alleged to have participated in the same act or in the same comprehensive transaction out of which the offense or offenses arose. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
(c) Two or more acts or transactions in violation of any provision or provisions of Sections 8A‑2, 8A‑3, 8A‑4, 8A‑4A and 8A‑5 of the Illinois Public Aid Code, Sections 16‑1, 16‑2, 16‑3, 16‑5, 16‑7, 16‑8, 16‑10, 16A‑3, 16B‑2, 16C‑2, 17‑1, 17‑3, 17‑6, 17‑7, 17‑8, 17‑9 or 17‑10 of the Criminal Code of 1961 and Section 118 of Division I of the Criminal Jurisprudence Act, may be charged as a single offense in a single count of the same indictment, information or complaint, if such acts or transactions by one or more defendants are in furtherance of a single intention and design or if the property, labor or services obtained are of the same person or are of several persons having a common interest in such property, labor or services. In such a charge, the period between the dates of the first and the final such acts or transactions may be alleged as the date of the offense and, if any such act or transaction by any defendant was committed in the county where the prosecution was commenced, such county may be alleged as the county of the offense.
(Source: P.A. 95‑384, eff. 1‑1‑08; 96‑354, eff. 8‑13‑09.)
(725 ILCS 5/111‑5) (from Ch. 38, par. 111‑5)
Sec. 111‑5. Formal defects in a charge.
An indictment, information or complaint which charges the commission of an offense in accordance with Section 111‑‑3 of this Code shall not be dismissed and may be amended on motion by the State's Attorney or defendant at any time because of formal defects, including:
(a) Any miswriting, misspelling or grammatical error;
(b) Any misjoinder of the parties defendant;
(c) Any misjoinder of the offense charged;
(d) The presence of any unnecessary allegation;
(e) The failure to negative any exception, any excuse or proviso contained in the statute defining the offense; or
(f) The use of alternative or disjunctive allegations as to the acts, means, intents or results charged.
(Source: Laws 1963, p. 2836.) |
(725 ILCS 5/111‑6) (from Ch. 38, par. 111‑6)
Sec. 111‑6. Bill of particulars.
When an indictment, information or complaint charges an offense in accordance with the provisions of Section 111‑3 of this Code but fails to specify the particulars of the offense sufficiently to enable the defendant to prepare his defense the court may, on written motion of the defendant, require the State's Attorney to furnish the defendant with a Bill of Particulars containing such particulars as may be necessary for the preparation of the defense. At the trial of the cause the State's evidence shall be confined to the particulars of the bill.
(Source: Laws 1963, p. 2836.) |
(725 ILCS 5/111‑7) (from Ch. 38, par. 111‑7)
Sec. 111‑7. Loss of charge.
When an indictment, information or complaint which has been returned or presented to a court as authorized by law has become illegible or cannot be produced at the arraignment or trial the defendant may be arraigned and tried on a copy thereof certified by the clerk of the court.
(Source: Laws 1963, p. 2836.) |
(725 ILCS 5/111‑8) (from Ch. 38, par. 111‑8)
Sec. 111‑8. Orders of protection to prohibit domestic violence.
(a) Whenever a violation of Section 9‑1, 9‑2, 9‑3, 10‑3, 10‑3.1, 10‑4, 10‑5, 11‑15, 11‑15.1, 11‑20.1, 11‑20a, 12‑1, 12‑2, 12‑3, 12‑3.2, 12‑3.3, 12‑4, 12‑4.1, 12‑4.3, 12‑4.6, 12‑5, 12‑6, 12‑6.3, 12‑7.3, 12‑7.4, 12‑7.5, 12‑11, 12‑13, 12‑14, 12‑14.1, 12‑15, 12‑16, 19‑4, 21‑1, 21‑2, or 21‑3 of the Criminal Code of 1961 or Section 1‑1 of the Harassing and Obscene Communications Act is alleged in an information, complaint or indictment on file, and the alleged offender and victim are family or household members, as defined in the Illinois Domestic Violence Act, as now or hereafter amended, the People through the respective State's Attorneys may by separate petition and upon notice to the defendant, except as provided in subsection (c) herein, request the court to issue an order of protection.
(b) In addition to any other remedies specified in Section 208 of the Illinois Domestic Violence Act, as now or hereafter amended, the order may direct the defendant to initiate no contact with the alleged victim or victims who are family or household members and to refrain from entering the residence, school or place of business of the alleged victim or victims.
(c) The court may grant emergency relief without notice upon a showing of immediate and present danger of abuse to the victim or minor children of the victim and may enter a temporary order pending notice and full hearing on the matter.
(Source: P.A. 94‑325, eff. 1‑1‑06.)
(725 ILCS 5/Art. 112 heading) ARTICLE 112. GRAND JURY
(725 ILCS 5/112‑1) (from Ch. 38, par. 112‑1)
Sec. 112‑1. Selection and qualification.
The grand jurors shall be summoned, drawn, qualified and certified according to law.
(Source: Laws 1963, p. 2836.) |
(725 ILCS 5/112‑2) (from Ch. 38, par. 112‑2)
Sec. 112‑2. Impaneling the Grand Jury. (a) The Grand Jury shall consist of 16 persons, 12 of whom shall be necessary to constitute a quorum.
(b) The Grand Jury shall be impaneled, sworn and instructed as to its duties by the court. The court shall select and swear one of the grand jurors to serve as foreman.
(c) Before the Grand Jury shall enter upon the discharge of their duties the following oath shall be administered to the jurors:
"You and each of you do solemnly swear (or affirm, as the case may be), that you will diligently inquire into and true presentment make of all such matters and things as shall be given you in charge, or shall otherwise come to your knowledge, touching the present service; you shall present no person through malice, hatred or ill‑will; nor shall you leave any unpresented through fear, favor, affection, or for any fee or reward, or for any hope or promise thereof; but in all of your presentments, you shall present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding; so help you God."
(Source: P.A. 85‑690.) |
(725 ILCS 5/112‑3) (from Ch. 38, par. 112‑3)
Sec. 112‑3. Duration of Grand Jury.
(a) In counties with a population in excess of 1,000,000 a Grand Jury shall be convened, impaneled and sworn, and shall commence the performance of its duties for an indeterminate period, on the first Monday of each month. In such counties a Grand Jury shall serve until discharged by the court, except that no Grand Jury shall serve in excess of 18 months and not more than 6 Grand Juries shall sit at the same time.
In counties with a population in excess of 225,000 but less than 1,000,000 a Grand Jury may be convened, empaneled, and sworn and may sit at such times and for such periods as the circuit court may order on its own motion or that of the State's Attorney. No Grand Jury shall serve in excess of 18 months and not more than 2 Grand Juries shall sit at the same time.
(b) In all other counties the Grand Jury shall be called and sit at such times and for such periods as the circuit court may order on its own motion or that of the State's Attorney; provided, that no Grand Jury shall sit for a period in excess of 18 months and, provided further, that no more than one Grand Jury shall sit at the same time.
(c) At any time for cause shown the court may excuse a grand juror either temporarily or permanently and, if permanently, may impanel another person in place of the grand juror excused.
(Source: P.A. 88‑31.) |
(725 ILCS 5/112‑4) (from Ch. 38, par. 112‑4)
Sec. 112‑4. Duties of Grand Jury and State's Attorney.) (a) The Grand Jury shall hear all evidence presented by the State's Attorney.
(b) The Grand Jury has the right to subpoena and question any person against whom the State's Attorney is seeking a Bill of Indictment, or any other person, and to obtain and examine any documents or transcripts relevant to the matter being prosecuted by the State's Attorney. Prior to the commencement of its duties and, again, before the consideration of each matter or charge before the Grand Jury, the State's Attorney shall inform the Grand Jury of these rights. In cases where the initial charge has been commenced by information or complaint and a finding of no probable cause has resulted as to any offense charged therein, the Grand Jury shall be informed of the finding entered at the preliminary hearing and further advised that such finding shall not bar the State from initiating new charges by indictment, information or complaint if the State's Attorney has reasonable grounds to believe that the evidence available at that time is sufficient to establish probable cause. In such cases, the Grand Jury shall be further advised that it has the right to subpoena and question any witness who testified at the preliminary hearing, or who is believed to have knowledge of such offense, and of its right to obtain and examine the testimony heard at the preliminary hearing, either through the production of a transcript of the proceedings, or through the verbatim testimony of the court reporter who attended the preliminary hearing. The State's Attorney shall file an affidavit as part of the Grand Jury record indicating whether the jurors were advised of such previous findings of no probable cause and of their rights based upon such previous finding.
Any person subpoenaed who is already charged with an offense or against whom the State's Attorney is seeking a Bill of Indictment shall have the right to be accompanied by counsel who shall advise him of his rights during the proceedings but may not participate in any other way. Before any testimony is given by such a person, he shall be informed that he has the right to refuse to answer any question that will tend to incriminate him, that anything he says may be used against him in a court of law, that he has the right to be accompanied and advised of his rights by counsel, and that he will have counsel appointed for him if he cannot afford one.
(c) The foreman shall preside over all hearings and swear all witnesses. Except where otherwise provided by this Article, the foreman may delegate duties to other grand jurors and determine rules of procedure.
(d) If 9 grand jurors concur that the evidence before them constitutes probable cause that a person has committed an offense the State's Attorney shall prepare a Bill of Indictment charging that person with such offense. The foreman shall sign each Bill of Indictment which shall be returned in open court.
(e) When the evidence presented to the Grand Jury does not warrant the return of a Bill of Indictment, the State's Attorney may prepare a written memorandum to such effect, entitled, "No Bill".
(Source: P.A. 85‑690.) |
(725 ILCS 5/112‑4.1) (from Ch. 38, par. 112‑4.1)
Sec. 112‑4.1. Any person appearing before the grand jury shall have the right to be accompanied by counsel who shall advise him of his rights but shall not participate in any other way.
(Source: P.A. 81‑1112.) |
(725 ILCS 5/112‑5) (from Ch. 38, par. 112‑5)
Sec. 112‑5. Duties of others. (a) The clerk of the court shall keep such records of Bills of Indictments and No Bills as may be prescribed by Rule of the Supreme Court.
(b) The court may appoint an investigator or investigators on petition showing good cause for same and signed by the foreman and 8 other grand jurors. The duties and tenure of appointment of such investigator or investigators shall be determined by the court.
(Source: P.A. 85‑690.) |
(725 ILCS 5/112‑6) (from Ch. 38, par. 112‑6)
Sec. 112‑6. Secrecy of proceedings.) (a) Only the State's Attorney, his reporter and any other person authorized by the court or by law may attend the sessions of the Grand Jury. Only the grand jurors shall be present during the deliberations and vote of the Grand Jury. If no reporter is assigned by the State's Attorney to attend the sessions of the Grand Jury, the court shall appoint such reporter.
(b) Matters other than the deliberations and vote of any grand juror shall not be disclosed by the State's Attorney, except as otherwise provided for in subsection (c). The court may direct that a Bill of Indictment be kept secret until the defendant is in custody or has given bail and in either event the clerk shall seal the Bill of Indictment and no person shall disclose the finding of the Bill of Indictment except when necessary for the issuance and execution of a warrant.
(c) (1) Disclosure otherwise prohibited by this Section of matters occurring before the Grand Jury, other than its deliberations and the vote of any grand juror, may be made to:
a. a State's Attorney for use in the performance of such State's Attorney's duty; and
b. such government personnel as are deemed necessary by the State's Attorney in the performance of such State's Attorney's duty to enforce State criminal law.
(2) Any person to whom matters are disclosed under paragraph (1) of this subsection (c) shall not use the Grand Jury material for any purpose other than assisting the State's Attorney in the performance of such State's Attorney's duty to enforce State criminal law. The State's Attorney shall promptly provide the court, before which was impaneled the Grand Jury whose material has been disclosed, with the names of the persons to whom such disclosure has been made.
(3) Disclosure otherwise prohibited by this Section of matters occurring before the Grand Jury may also be made when the court, preliminary to or in connection with a judicial proceeding, directs such in the interests of justice or when a law so directs.
(d) Any grand juror or officer of the court who discloses, other than to his attorney, matters occurring before the Grand Jury other than in accordance with the provisions of this subsection or Section 112‑7 shall be punished as a contempt of court, subject to proceedings in accordance to law.
(Source: P.A. 85‑690.) |
(725 ILCS 5/112‑7) (from Ch. 38, par. 112‑7)
Sec. 112‑7. A transcript shall be made of all questions asked of and answers given by witnesses before the grand jury.
(Source: P.A. 79‑669.) |
(725 ILCS 5/112‑8)
Sec. 112‑8. Destroyed instrument. When an instrument that is the subject of an indictment has been destroyed or withheld by the act or procurement of the defendant, and the fact of the destruction or withholding is alleged in the indictment and established on trial, the accused shall not be acquitted on account of any misdescription of the instrument so withheld or destroyed.
(Source: P.A. 89‑234, eff. 1‑1‑96.) |
(725 ILCS 5/Art. 112A heading) ARTICLE 112A. DOMESTIC VIOLENCE: ORDER OF PROTECTION
(725 ILCS 5/112A‑1) (from Ch. 38, par. 112A‑1)
Sec. 112A‑1. Construction. This Article shall be interpreted in accordance with the purposes and rules of construction set forth in Section 102 of the Illinois Domestic Violence Act of 1986. Each of the provisions of the Illinois Domestic Violence Act of 1986 which are included in this Article shall govern the issuance, recording and enforcement of orders of protection in criminal proceedings.
(Source: P.A. 84‑1305.) |
(725 ILCS 5/112A‑2) (from Ch. 38, par. 112A‑2)
Sec. 112A‑2. Commencement of Actions.
(a) Actions for orders of protection are commenced in conjunction with a delinquency petition or a criminal prosecution by filing a petition for an order of protection, under the same case number as the delinquency petition or the criminal prosecution, to be granted during pre‑trial release of a defendant, with any dispositional order issued under Section 5‑710 of the Juvenile Court Act of 1987, or as a condition of release, supervision, conditional discharge, probation, periodic imprisonment, parole or mandatory supervised release, or in conjunction with imprisonment or a bond forfeiture warrant, provided that:
(i) the violation is alleged in an information, |
| complaint, indictment or delinquency petition on file, and the alleged offender and victim are family or household members; and | |
(ii) the petition, which is filed by the State's |
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(b) Withdrawal or dismissal of any petition for an order of protection prior to adjudication where the petitioner is represented by the state shall operate as a dismissal without prejudice.
(c) Voluntary dismissal or withdrawal of any delinquency petition or criminal prosecution or a finding of not guilty shall not require dismissal of the action for the order of protection; instead, in the discretion of the State's Attorney, it may be treated as an independent action and, if necessary and appropriate, transferred to a different court or division. Dismissal of any delinquency petition or criminal prosecution shall not affect the validity of any previously issued order of protection, and thereafter subsection (b) of Section 112A‑20 shall be inapplicable to that order.
(Source: P.A. 90‑590, eff. 1‑1‑99.) |
(725 ILCS 5/112A‑3) (from Ch. 38, par. 112A‑3)
Sec. 112A‑3. Definitions. For the purposes of this Article, the following terms shall have the following meanings:
(1) "Abuse" means physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation but does not include reasonable direction of a minor child by a parent or person in loco parentis.
(2) "Domestic violence" means abuse as described in paragraph (1).
(3) "Family or household members" include spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, persons who share or allegedly share a blood relationship through a child, persons who have or have had a dating or engagement relationship, persons with disabilities and their personal assistants, and caregivers as defined in paragraph (3) of subsection (b) of Section 12‑21 of the Criminal Code of 1961. For purposes of this paragraph, neither a casual acquaintanceship nor ordinary fraternization between 2 individuals in business or social contexts shall be deemed to constitute a dating relationship.
(4) "Harassment" means knowing conduct which is not necessary to accomplish a purpose which is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner. Unless the presumption is rebutted by a preponderance of the evidence, the following types of conduct shall be presumed to cause emotional distress:
(i) creating a disturbance at petitioner's place of |
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