The Illinois Supreme Court should give consideration to encouraging the Administrative Office of the Illinois Courts to undertake a concerted effort to educate trial judges throughout the State in the parameters of the Capital Crimes Litigation Act and the funding sources available for defense of capital cases.
ISAA: The ISAA supports this proposal. The ISAA has long promoted the principle that additional training improves the criminal justice system.
ISBA: Support.
Recommendation 33:
The Commission supports the provisions of new Illinois Supreme Court Rule 43 (which took effect March 1, 2001) as to "Seminars on Capital Cases." The Illinois Supreme Court should be encouraged to undertake more action as outlined in this report to insure the highest quality training and support are provided to any judge trying a capital case.
The Commission also supports the revised Committee Comments to new Supreme Court Rule 43, which contemplate that capital case training will occur prior to the time a judge hears a capital case. The Supreme Court should be encouraged to consider going further and requiring that judges be trained before presiding over a capital case.
ISAA: The ISAA agrees with this proposal in principle, but points out that in counties with only one or two judges, it may interfere with the parties' ability to bring the matter to trial in a timely fashion.
ISBA: Support.
Recommendation 34:
In light of the changes in Illinois Supreme Court rules governing the discovery process in capital cases, the Supreme Court should give consideration to ways the Court can insure that particularized training is provided to trial judges with respect to implementation of the new rules governing capital litigation, especially with respect to the management of the discovery process.
ISAA: Support.
ISBA: Support.
Recommendation 35:
All judges who are trying capital 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, but points out that care must be taken to ensure that the curriculum is balanced and does not promote bias against any particular categories of competent evidence.
ISBA: Support.
Recommendation 36:
The Illinois Supreme Court, and the Administrative Office of the Illinois Courts should consider development of and provide sufficient funding for state-wide materials to train judges in capital cases, and additional staff to provide research support.
ISAA: Support.
ISBA: Support.
Recommendation 37:
The Illinois Supreme Court should consider ways in which information regarding relevant case law and other resources can be widely disseminated to those trying capital cases, through development of a digest of applicable law by the Supreme Court and wider publication of the outline of issues developed by the State Appellate Defender or the State Appellate Prosecutor and/or Attorney General.
ISAA: Support.
ISBA: Support.
Recommendation 38:
The Illinois Supreme Court, or the chief judges of the various judicial districts throughout the State, should consider implementation of a process to certify judges who are qualified to hear capital cases either by virtue of experience or training. Trial court judges should be certified as qualified to hear capital cases based upon completion of specialized training and based upon their experience in hearing criminal cases. Only such certified judges should hear capital cases.
ISAA: The ISAA agrees in principle with this recommendation, but notes the need to avoid administrative problems in smaller counties with fewer judges available for certification.
ISBA: Support.
Recommendation 39:
The Illinois Supreme Court should consider appointment of a standing committee of trial judges and/or appellate justices familiar with capital case management to provide resources to trial judges throughout the State who are responsible for trying capital cases.
ISAA: Support.
ISBA: Support.
Chapter 7--Trial Lawyers
This Chapter concerns recommendations which pertain to trial counsel. Recent changes in the Supreme Court Rules regarding the development of a capital trial bar have changed the qualifications required of capital counsel. The Commission unanimously supports the suggested rule changes establishing these requirements, as well as supporting improved training and funding of counsel trying capital cases.
Recommendation 40:
The Commission supports new Illinois Supreme Court Rule 416(d) regarding qualifications for counsel in capital cases.
ISAA: This recommendation restates the current law which the ISAA supports. The ISAA also notes that Illinois is the only state which requires particular qualifications for prosecutors in capital cases in addition to defense attorneys. This reform should promote much greater confidence in our trial system.
ISBA: Support.
Recommendation 41:
The Commission supports new Illinois Supreme Court Rule 701(b) which imposes the requirement that those appearing as lead or co-counsel in a capital case be first admitted to the Capital Litigation Bar under Rule 714.
ISAA: This recommendation restates current law which the ISAA supports.
ISBA: Support.
Recommendation 42:
The Commission supports new Illinois Supreme Court Rule 714 which imposes requirements on the qualifications of attorneys handling capital cases.
ISAA: This recommendation restates current law which the ISAA supports.
ISBA: Support.
Recommendation 43:
The office of the State Appellate Defender should facilitate the dissemination of information with respect to defense counsel qualified under the proposed Supreme Court process.
ISAA: Support.
ISBA: Support.
Recommendation 44:
The Commission supports efforts to have training for prosecutors and defenders in capital litigation, and to have funding provided to insure that training programs continue to be of the highest quality.
ISAA: Support.
ISBA: Support.
Recommendation 45:
All prosecutors and defense lawyers who are members of the Capital Trial Bar who are trying capital 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 overall ability of the criminal justice system to determine truth and avoids promoting any ideological bias against any professions or competent evidence.
ISBA: Support.
Chapter 8--Pretrial proceedings
This Chapter addresses matters that arise before the guilt and innocence phase of a trial begins. The Illinois Supreme Court has recently adopted new rules governing certain pre-trial proceedings in capital cases. The Commission unanimously supports many of these recommendations, and has also unanimously recommended other changes in pretrial proceedings which should improve the search for truth and the fairness of capital litigation. In addition to its support for these rule changes, the Commission recommends that the Court adopt a definition of "exculpatory evidence," require prosecutors (and others) to disclose to the defense benefits conferred upon or promised to a witness, implement new pre-trial proceedings to assess the credibility of in-custody informants, and closely scrutinize police tactics during interrogation in determining the voluntariness of confessions.
Recommendation 46:
The Commission supports new Illinois Supreme Court Rule 416(e) which permits discovery depositions in capital cases with leave of the court for good cause.
ISAA: This recommendation restates current law which the ISAA supports.
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 47:
The Commission supports the provisions of new Illinois Supreme Court Rule 416(f) mandating case management conferences in capital cases. The Illinois Supreme Court should consider adoption of a rule requiring a final case management conference in capital cases to insure that there has been compliance with the newly mandated rules, that discovery is complete and that the case is fully prepared for trial.
ISAA: This recommendation restates current law which the ISAA supports. Also, the ISAA points out that although Rule 416(f) currently leaves the availability of a final case management conference to the discretion of the judge, many trial judges already require them as a matter of course.
ISBA: Support.
Recommendation 48:
The Commission supports Illinois Supreme Court Rule 416(f), which requires that a certificate be filed by the State indicating that a conference has been held with all those persons who participated in the investigation or trial preparation of the case, and that all information required to be disclosed has been disclosed.
ISAA: This recommendation restates current law which the ISAA supports.
ISBA: Support.
Recommendation 49:
The Illinois Supreme Court should adopt a rule defining "exculpatory evidence" in order to provide guidance to counsel in making appropriate disclosures. The Commission recommends the following definition:
Exculpatory information includes, but may not be limited to, all information that is material and favorable to the defendant because it tends to:
(1) Cast doubt on defendant's guilt as to any essential element in any count in the indictment or information;
(2) Cast doubt on the admissibility of evidence that the State anticipates offering in its case-in-chief that might be subject to a motion to suppress or exclude;
(3) Cast doubt on the credibility or accuracy of any evidence that the State anticipates offering in its case-in-chief; or
(4) Diminish the degree of the defendant's culpability or mitigate the defendant's potential sentence.
ISAA: This proposal is unnecessary because Supreme Court Rule 412(c) currently includes the classic definition of exculpatory evidence, "any material or information ... which tends to negate the guilt of the accused as to the offense charged or which would tend to reduce his punishment therefor." The Rule also requires the disclosure of such evidence.
ISBA: Support in principle but recognize difficulties in implementation.
Recommendation 50:
Illinois law should require that any discussions with a witness or the representative of a witness concerning benefits, potential benefits or detriments conferred on a witness by any prosecutor, police official, corrections official or anyone else, should be reduced to writing, and should be disclosed to the defense in advance of trial.
ISAA: The ISAA agrees in principle with this proposal, but points out that current law already requires the disclosure of any benefit expected by the witness in exchange for his testimony.
ISBA: Should be included in Recommendation 49.
Recommendation 51:
Whenever the State may introduce the testimony of an in-custody informant who has agreed to testify for the prosecution in a capital case to a statement allegedly made by the defendant, at either the guilt or sentencing phase, the State should promptly inform the defense as to the identification and background of the witness.
ISAA: This recommendation restates current law which the ISAA supports.
ISBA: Support but delete limitation on "in-custody."
Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.
Recommendation 52:
(a) Prior to trial, the trial judge shall hold an evidentiary hearing to determine the reliability and admissibility of the in-custody informant's testimony at either the guilt or sentencing phase.
(b) At the pre-trial evidentiary hearing, the trial judge shall use the following standards:
The prosecution bears the burden of proving by a preponderance of evidence that the witness' testimony is reliable. The trial judge may consider the following factors, as well as any other factors bearing on the witness' credibility:
(1) The specific statements to which the witness will testify.
(2) The time and place, and other circumstances regarding the alleged statements.
(3) Any deal or inducement made by the informant and the police or prosecutors in exchange for the witness' testimony.
(4) The criminal history of the witness.
(5) Whether the witness has ever recanted his/her testimony.
(6) Other cases in which the witness testified to alleged confessions by others.
(7) Any other known evidence that may attest to or diminish the credibility of the witness, including the presence or absence of any relationship between the accused and the witness.
(c) The State may file an interlocutory appeal from a ruling suppressing the testimony of an in-custody informant, pursuant to Illinois Supreme Court Rule 604.
ISAA: The ISAA disagrees with this proposal because it intrudes into the jury's role in discerning witness credibility. Instead, the ISAA has long stated that a jury instruction similar to the accomplice witness instruction would be more effective in addressing this concern without interfering with the jury's function.
ISBA: Support but delete the limitation on "in-custody." The ISBA Committee did not think that whether the informant was in-custody or not was relevant to the problem that this recommendation was trying to resolve. Although this recommendation was unanimously supported by the Governor's Commission, it did spark an animated debate among our Committee. The opponents thought it was unnecessarily making new law to treat this witness differently than any other witness. They also had equal protection concerns by non-capital defendants. They agreed with the Illinois State's Attorneys' Association that using a jury instruction similar to what federal courts use for informants would be a better way to proceed.
The proponents said that this was not such a big step, other witnesses are examined by the court before allowing them to testify, such as the competency of juveniles. Regardless of whether this is or is not a new procedure, the proponents believe that these witnesses are different and therefore must be treated differently.
Governor: As a part of his amendatory veto of HB 2058, the Governor has proposed amending Illinois law to include this recommendation.
Recommendation 53:
In capital cases, courts should closely scrutinize any tactic that misleads the suspect as to the strength of the evidence against him/her, or the likelihood of his/her guilt, in order to determine whether this tactic would be likely to induce an involuntary or untrustworthy confession.
ISAA: This recommendation restates current law which the ISAA supports.
ISBA: Support.
Recommendation 54:
The Commission makes no recommendation about whether or not plea negotiations should be restricted with respect to the death penalty.
ISAA: No comment.
ISBA: Support.
Chapter 9--The Guilt-Innocence Phase
The recommendations in this Chapter address evidentiary problems which are of greater concern in capital cases, but which occur in other trials as well. The Commission has unanimously recommended that expert testimony with respect to the problems associated with eyewitness evidence be admitted on a case by case basis, that instructions relating to eyewitness testimony should elucidate the factors for the jury to consider, and caution the jury to consider such testimony carefully in light of other evidence in the case, and that special cautionary instructions be given to the jury for in-custody informant testimony. The Commission also continues to support the exclusion by Illinois courts of polygraph evidence. A majority of Commission members supported revisions to the instructions to the jury relating to evaluation of unrecorded statements by the defendant.
Recommendation 55 :
Expert testimony with respect to the problems associated with eyewitness testimony may be helpful in appropriate cases. Determinations as to whether such evidence may be admitted should be resolved by the trial judge on a case by case basis.
ISAA: This recommendation restates current law which the ISAA supports.
ISBA: Support.
Recommendation 56:
Jury instructions with respect to eyewitness testimony should enumerate factors for the jury to consider, including the difficulty of making a cross-racial identification. The current version of IPI is a step in the right direction, but should be improved. IPI 3.15 should also be amended to add a final sentence which states as follows: "Eyewitness testimony should be carefully examined in light of other evidence in the case."