When practicable, police departments should insure that the person who conducts the lineup or photospread spread should not be aware of which member of the lineup or photospread spread is the suspect.
ISAA: Although police and prosecutors are always looking to improve identification procedures, the ISAA believes that any attempt to impose a particular method represents an unprecedented, unnecessary and uninformed intrusion into the police process. Constitutional law currently provides that if an identification procedure is improperly suggestive, that identification may not be utilized at trial. Moreover, requiring that police officers unfamiliar with the investigation conduct the identification process will unnecessarily delay the time until the defendant can be formally charged or released if he is not identified, thereby posing an increased risk to the public as the actual offender is still at large. Finally, because many smaller communities across the State may not have the requisite number of photographs or live individuals similar in appearance to the suspect in order to comply with the requirements, those police agencies will be unable to conduct the identification procedures in a timely fashion, potentially interfering with the suspect's constitutional right to be brought before a judge within 48 hours of arrest.
ISBA: Oppose. This recommendation was opposed by the [ISBA's] Committee for different reasons. Although well-intentioned, some of our members thought it was burdensome micromanaging to remove one officer from an investigation so that he or she would not know the identity of the suspect. And, in many communities and station houses, what officer will not know the identity of the suspect in a homicide case? Other members of our Committee thought that because all the officers will know the identity of the suspect, why put them in the artificial and unfair position of denying the obvious?
Recommendation 11:
(a) Eyewitnesses should be told explicitly that the suspected perpetrator might not be in the lineup or photospread, and therefore they should not feel that they must make an identification.
(b) Eyewitnesses should also be told that they should not assume that the person administering the lineup or photospread knows which person is the suspect in the case.
ISAA: (a) and (b). This recommendation restates current police practice, and the ISAA supports continuation of the practice.
ISBA: (a) Support. (b) Support.
Recommendation 12:
If the administrator of the lineup does not know who the suspect is, a sequential procedure should be used, so that the eyewitness views only one lineup member at a time and makes a decision (that is the perpetrator or that is not the perpetrator) regarding each person before viewing another lineup member.
ISAA: The ISAA agrees with the [Commission] minority [report] that it is inappropriate to mandate a particular procedure which has not yet been tested or approved by the courts. However, the ISAA supports the ability of individual police departments to experiment with different procedures to determine if sequential procedures are more effective.
ISBA: Oppose. This recommendation sparked some debate about the virtues and vices of using sequential lineups or photospreads. If you read the commentary in Recommendation No. 12 in the Commission's Report, however, it quotes the proponents [of this recommendation as stating] that "...the adoption of sequential lineups without the adoption of double-blind testing ... might be worse than using simultaneous lineups without double-blind testing." Therefore, the [ISBA's] Committee decided that because we did not support Recommendation No. 10, we could not support Recommendation No. 12 because No. 10 assumes that the officer conducting the lineup does not know the identity of the suspect.
Recommendation 13:
Suspects should not stand out in the lineup or photospread as being different from the distractors, based on the eyewitnesses' previous description of the perpetrator, or based on other factors that would draw attention to the suspect.
ISAA: This recommendation restates current practice which the ISAA supports.
ISBA: Support.
Recommendation 14:
A clear written statement should be made of any statements made by the eyewitness at the time of the identification procedure as to his or her confidence that the identified person is or is not the actual culprit. This statement should be recorded prior to any feedback by law enforcement personnel.
ISAA: The ISAA agrees that police should record any statement made by a witness indicating his or her confidence in an identification. However, it must be pointed out that police are not barometers of witness confidence and should not be expected to make their own evaluations. Also, the ISAA is concerned that some witnesses may refuse to take part in an identification procedure if they are required to sign and date a police report indicating their confidence in the identification.
ISBA: Support.
Recommendation 15:
When practicable, the police should videotape lineup procedures, including the witness' confidence statement.
ISAA: The ISAA disagrees with this proposal because it is extremely impractical since it would require three separate cameras, one on the participants in the lineup, one on the witness and one on the officer conducting the procedure. More importantly, however, such a requirement could have a chilling effect on law enforcement because witnesses refuse to be videotaped out of a fear of reprisal. Also, this proposal fails to recognize the particular sensitivities of crime victims, especially rape victims. Nevertheless, the ISAA supports the ability of individual police departments to experiment with different procedures.
ISBA: Support.
Recommendation 16:
All police who work on homicide cases should receive periodic training in the following areas, and experts on these subjects should be retained to conduct training and prepare training manuals on these topics:
1. The risks of false testimony by in-custody informants ("jailhouse snitches").
2. The risks of false testimony by accomplice witnesses.
3. The dangers of tunnel vision or confirmatory bias.
4. The risks of wrongful convictions in homicide cases.
5. Police investigative and interrogation methods.
6. Police investigating and reporting of exculpatory evidence.
7. Forensic evidence.
8. The risks of false confessions.
ISAA: The ISAA agrees with this proposal, as it has long believed that additional training improves the criminal justice system and helps make the exclusion of evidence unnecessary.
ISBA: Support.
Recommendation 17:
Police academies, police agencies and the Illinois Department of Corrections should include within their training curricula information on consular rights and the notification obligations to be followed during the arrest and detention of foreign nationals.
ISAA: The ISAA agrees with this proposal since it would help eliminate future problems in cases where foreign nationals are prosecuted.
ISBA: Support.
Recommendation 18:
The Illinois Attorney General should remind all law enforcement agencies of their notification obligations under the Vienna Convention on Consular Relations and undertake regular reviews of the measures taken by State and local police to ensure full compliance. This could include publication of a guide based on the U.S. State Department manual.
ISAA: The ISAA agrees with this proposal since it would help eliminate future problems in cases where foreign nationals are prosecuted.
ISBA: Support.
Recommendation 19:
The statute relating to the Illinois Law Enforcement Training and Standards Board (50 ILCS 705/6.1a) should be amended to add police perjury (regardless of whether there is a criminal conviction) as a basis upon which the Board may revoke certification of a peace officer.
ISAA: The ISAA believes that this proposal reflects a misunderstanding of the Illinois Law Enforcement Training and Standards Board's function and points out that the proposal is unnecessary since a conviction for perjury will automatically result in decertification.
ISBA: Support.
Chapter 3 -DNA and Forensic Testing
This Chapter discusses the important issue of forensic testing. Advances in science now provide law enforcement agencies with an unparalleled opportunity to conclusively identify those suspected of having committed crimes where biological evidence exists. DNA and other forensic testing has revolutionized the investigation of crime in just the last 5 years. The Commission has recommended in this Chapter that the State undertake significant improvements related to its forensic laboratories, establish and fund a comprehensive DNA database, enable defendants to access that database in appropriate cases, and support adequate funding for DNA and other forensic testing in capital cases.
Recommendation 20:
An independent State forensic laboratory should be created, operated by civilian personnel, with its own budget, separate from any police agency or supervision.
ISAA: The ISAA agrees with the [Commission] minority view that an independent lab would be an unnecessary expense and that a better proposal than creating yet another State agency would be the creation of a permanent and adequately funded "defense scientific services center" whereby defendants and defense counsel would have access to truly independent forensic scientists for consultation and review without requiring the intervention of courts or the agreement of prosecutors.
ISBA: Oppose. Although our [ISBA] Committee supported the rationale behind this recommendation, we acknowledge the political and turf problems with making it happen. A better way to achieve the goal of the recommendation is to ensure that the State's existing forensic lab is certified by impartial experts not affiliated with the lab and require blind-testing of the lab's work to ensure the highest quality control.
Recommendation 21:
Adequate funding should be provided by the State of Illinois to hire and train both entry level and supervisory level forensic scientists to support expansion of DNA testing and evaluation. Support should also be provided for additional up-to-date facilities for DNA testing. The State should be prepared to outsource by sending evidence to private companies for analysis when appropriate.
ISAA: The ISAA agrees with this proposal since it will reduce the time for DNA testing.
ISBA: Support.
Recommendation 22:
The Commission supports Supreme Court Committee Rule 417, establishing minimum standards for DNA evidence.
ISAA: This recommendation restates current law, which the ISAA supports.
ISBA: Support.
Recommendation 23:
The Federal government and the State of Illinois should provide adequate funding to enable the development of a comprehensive DNA database.
ISAA: Support.
ISBA: Support.
Recommendation 24:
Illinois statutes should be amended to provide that in capital cases a defendant may apply to the court for an order to obtain a search of the DNA database to identify others who may be guilty of the crime.
ISAA: Support.
ISBA: Support.
Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.
Recommendation 25:
In capital cases, forensic testing, including DNA testing pursuant to 725 ILCS 5/116-3, should be permitted where it has the scientific potential to produce new, noncumulative evidence relevant to the defendant's assertion of actual innocence, even though the results may not completely exonerate the defendant.
ISAA: This recommendation restates current law (People v. Savory, 197 Ill. 2d 203, 756 N.E.2d 804 (2001)), which the ISAA supports.
ISBA: Support.
Recommendation 26:
The provisions governing the Capital Litigation Trust Fund should be construed broadly
so as to provide a source of funding for forensic testing pursuant to 725 ILCS 5/116-3 when the defendant faces the possibility of a capital sentence. For non-capital defendants, provisions should be made for payment of costs of forensic testing for indigents from sources other than the Capital Litigation Trust Fund.
ISAA: Support.
ISBA: Support.
Chapter 4 - Eligibility for Capital Punishment
Not every first degree murder case is eligible for the death penalty. This Chapter addresses the issue of how eligibility for the death penalty should be determined. The United States Supreme Court requires that states narrow the potential class of those eligible for capital punishment by adoption of statutes that apply the death penalty to only some, but not all murders. The Commission recommends substantial revision to the factors that enable the State to seek the death penalty. Members of the Commission unanimously agreed that the list of 20 eligibility factors existing under Illinois law should be reduced, and a majority of members favor limiting death eligibility to just five well-defined factors. While Commission members believe that all murders are very serious, the death penalty should be reserved for only the most heinous of these crimes.
Recommendation 27:
The current list of 20 eligibility factors should be reduced to a smaller number.
ISAA: While many observers believe that the current list of factors is too long and redundant in certain instances, this is a legislative decision. The amendment to the statute must be based upon a deliberate and informed review of the issues by the legislature.
ISBA: Support.
Recommendation 28:
There should be only five eligibility factors: (1) the murder of a peace officer or firefighter killed in the performance of his/her official duties, or to prevent the performance of his/her official duties, or in retaliation for performing his/her official duties; (2) the murder of any person (inmate, staff, visitor, etc.), occurring at a correctional facility; (3) the murder of two or more persons as set forth in 720 ILCS 5/9-1(b)(3), as that provision has been interpreted by the Illinois Supreme Court; (4) the intentional murder of a person involving the infliction of torture; and (5) the murder by a person who is under investigation for or who has been charged with or has been convicted of a crime which would be a felony under Illinois law, of anyone involved in the investigation, prosecution or defense of that crime, including, but not limited to, witnesses, jurors, judges, prosecutors and investigators.
ISAA: The Commission's proposal to eliminate fifteen of the statute's 20 eligibility factors demonstrates the need for a full and informed consideration of these issues by the legislature. A full debate may cause many to reconsider the wisdom of the Commission's recommendations to exempt some of the most dangerous, heinous killers from the death penalty, including killers of the elderly, disabled and children, felony murderers and contract killers for hire.
ISBA: Support. Although we agree with the Governor's Commission that the number of eligibility factors must be reduced, it is obvious that the contentious debate over which factors should be eliminated and which should remain could go on forever. The Governor's Commission has taken as thoughtful a position on this effort as anyone could ask to begin the debate.
Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.
Chapter 5--Prosecutors' Selection of Cases for Capital Punishment
This Chapter focuses on the responsibility of the prosecutor to select cases in which capital punishment will be sought. Existing Illinois statutes grant broad discretion to the State's Attorney of an individual county on the question of whether or not to pursue capital punishment. The Commission unanimously recommends that voluntary state-wide standards be adopted by prosecutors in Illinois to identify when capital punishment will be sought in a particular case. A majority of Commission members believe that a mandatory, state-wide review of prosecutorial decisions about whether to seek capital punishment should be instituted. Commission members unanimously support the recently-adopted Supreme Court rules which require the prosecutor to give notice to the defendant within 120 days of the State's intention to seek the death penalty.
Recommendation 29:
The Illinois Attorney General and the Illinois State's Attorneys Association should adopt recommendations as to the procedures State's Attorneys should follow in deciding whether or not to seek the death penalty, but these recommendations should not have the force of law, or be imposed by court rule or legislation.
ISAA: The ISAA agrees with this proposal and has already begun preparing a state-wide protocol for use by all of its members.
ISBA: Support.
Recommendation 30:
The death penalty sentencing statute should be amended to require the approval of a state-wide review committee before any State's Attorney may seek death. The state-wide review committee would be composed of five members, four of whom would be prosecutors. The committee would develop standards to implement the legislative intent of the General Assembly with respect to death eligible cases.
ISAA: This recommendation overturns the constitutional role of the State's Attorney as the chief prosecutor for each county in Illinois. This reform would turn over the prosecutor's role to a commission, which would include one non-prosecutor not bound by the ethical rules governing prosecutors. This recommendation would add a procedural roadblock in the death penalty system, but interposing a State commission of political appointees does nothing to promote justice in individual cases. This would also reverse the entire direction of reform that has been urged by the defense bar--the speedy determination whether to seek death in a case. This recommendation could not be implemented with current Supreme Court rules requiring speedy screening decisions. This recommendation is also incompatible with the great body of responsible Commission recommendations which otherwise promote the best practices of prosecutors and defense attorneys instead of bypassing the trial system. The ISAA finds it singularly telling that the Commission, which included 13 lawyers and one lawmaker, provided no commentary on the need to amend the Illinois Constitution to achieve this recommendation.
ISBA: Support.
Recommendation 31:
The Commission supports Supreme Court Rule 416(c), requiring that the State announce its intention to seek the death penalty, and the factors to be relied upon, as soon as practicable but in no event later than 120 days after arraignment.
ISAA: This recommendation restates current law which the ISAA supports.
ISBA: We support the principle of this recommendation but do note that this Rule has caused unforeseen problems that merit further study by the Supreme Court of Illinois.
Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.
Chapter 6--Trial Judges
Trial judges play an important role in the capital punishment system by insuring the fairness of proceedings for all parties. The Commission unanimously adopted the recommendations in this Chapter, which should result in more effective management of capital cases. Recommendations include supporting improvements to training opportunities for trial judges hearing capital cases, insuring that trial judges have access to the most current information on developing case law on capital punishment, improving research support for trial judges, and a state-wide resource committee for judges hearing capital cases.