Criminal Law FLASHPOINTS January 2022

Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon
815-732-1170 | E-mail Matthew R. Leisten

First District: Failure To Record Interview Prevented State from Overcoming Presumption of Inadmissibility

In People v. Cain, 2021 IL App (1st) 191921, ¶1, the First District of the Illinois Appellate Court held that the state did not overcome the presumption of inadmissibility on the defendant’s statements to the police in a murder case because the police did not record the interview. However, the court did allow the state to present more evidence on remand to overcome the presumption of inadmissibility with proof by a preponderance of the evidence that the statements were voluntarily given and reliable. 2021 IL App (1st) 191921 at ¶35.

In Cain, the defendant was charged with first-degree murder and concealment of a homicidal death after a witness identified him as the man she had seen rolling a red suitcase past her house. The red suitcase had been found near an alley and was discovered to have a woman’s corpse inside. 2021 IL App (1st) 191921 at ¶3.

Police questioned the defendant at the police station but did not record the interview. At the motion to suppress statements hearing, the detective who interviewed the defendant testified that he read the defendant his Miranda rights and that the defendant agreed to speak to him. The detective also testified that the doctor who had performed the autopsy on the victim had not drawn any conclusion about whether the victim’s death resulted from a homicide before he interviewed the defendant. 2021 IL App (1st) 191921 at ¶¶3 – 4.

The detective testified that the defendant admitted to discovering that the victim was deceased in his bed after they had slept together. The defendant told the detective that he panicked and bought a suitcase to dispose of her body. 2021 IL App (1st) 191921 at ¶7.

The trial court denied the motion to suppress statements and found that the detective was not purposely avoiding having the interview recorded. 2021 IL App (1st) 191921 at ¶4. The defendant was convicted of first-degree murder and concealment of a homicidal death. On appeal, the defendant argued that the trial court should have suppressed his statements to the police and that the evidence did not show that any crime caused the victim’s death. 2021 IL App (1st) 191921 at ¶15.

The appellate court addressed 725 ILCS 5/103-2.1. Section 2.1(b) states:

An oral, written, or sign language statement of an accused made as a result of a custodial interrogation conducted at a police station or other place of detention shall be presumed to be inadmissible as evidence against the accused in any criminal proceeding brought under Section 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, or 9-3.3 of the Criminal Code of 1961 or the Criminal Code of 2012 or under clause (d)(1)(F) of Section 11-501 of the Illinois Vehicle Code unless:

(1) an electronic recording is made of the custodial interrogation; and

(2) the recording is substantially accurate and not intentionally altered.

Subsection 2.1(f) states:

The presumption of inadmissibility of a statement made by a suspect at a custodial interrogation at a police station or other place of detention may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances. 725 ILCS 5/103-2.1(f).

The Cain court first stated that the detective’s claim that he did not view the defendant as a murder suspect at the time of the questioning did not have any bearing on the statute’s application. The court noted that the since the state introduced the defendant’s statements as evidence against him in a murder case, then the failure to record the interview made the statements presumptively inadmissible. 2021 IL App (1st) 191921 at ¶18.

The Cain court next addressed whether the state overcame the presumption of inadmissibility by proof by a preponderance of the evidence that the statements were voluntarily given and reliable based on the totality of the circumstances. Some of the factors that courts can use to determine whether the statements were voluntarily made include the defendant’s age, education, intelligence, mental capacity, and physical condition at the time of the questioning; the legality and duration of the detention and questioning; whether the defendant was advised of his rights; and any physical or mental abuse by the police, including threats or promises. 2021 IL App (1st) 191921 at ¶19.

The Cain court concluded that the state presented at the hearing only evidence that the defendant was given his Miranda rights and that the record from the trial and posttrial proceedings showed only that the defendant was over 50 years old and had earned a G.E.D. Therefore, the state failed to present evidence that the statements were voluntary and reliable in order to overcome the presumption of inadmissibility. Id. However, the appellate court did permit the state to present more evidence on remand to overcome the presumption of inadmissibility by showing by a preponderance of the evidence that the statements were voluntarily given and reliable. 2021 IL App (1st) 191921 at ¶35.

 Matthew Chivari, Chivari P.C., Chicago
312-975-5732 | E-mail Matthew Chivari

Not-So-Speedy Trials in the Wake of COVID-19

By March 2020, just a few months after the first cases were reported in Wuhan, China, the United States was already reporting the highest number of confirmed cases of COVID-19 globally — cases numbering in the hundreds of thousands by the end of the month. To quell the spread of the disease in Illinois, Governor Pritzker executed a stay-at-home order. Executive Order No. 2020-10 (Mar. 20, 2020), 44 Ill.Reg. 5,857 (Apr. 3, 2020). The Illinois courts soon followed suit.

Just days before the stay-at-home order, the Illinois Supreme Court had taken its own first steps in response to the pandemic, implementing “temporary measures” both to shield the court system from the impact of COVID-19 and to ensure ongoing access to justice for those accused of a crime. M.R. 30370 (eff. Mar. 17, 2020). The order guaranteed that “[e]ssential court matters and proceedings shall continue to be heard.” Id. Days later, the Supreme Court took a step further, authorizing chief judges in each circuit to continue trials for the next 60 days until further order. M.R. 30370 (eff. Mar. 20, 2020). The order specifically provided that for criminal proceedings, “any delay resulting from this emergency continuance order shall not be attributable to either the State or the defendant for purposes of section 103-5 of the Code of Criminal Procedure of 1963,” the speedy-trial statute (725 ILCS 5/103-5). This mandate was extended to juvenile cases on April 3, 2020. M.R. 30370 (eff. Apr. 3, 2020). Then on April 7, 2020, the Supreme Court gave courts near blanket discretion to continue trials: “Statutory time restrictions in section 103-5 of the Code of Criminal Procedure of 1963 and section 5-601 of the Juvenile Court Act shall be tolled until further order of this Court.” M.R. 30370 (eff. Apr. 7, 2020).

Although trials were put on hold as the pandemic surged, arrests and prosecution continued almost unabated. As trials were continued into 2021, access to justice seemed increasingly aloof for many defendants. Such was the case for a defendant who challenged the timeliness of his trial under the emergency orders, as well as the Supreme Court’s authority to issue them.

People v. Mayfield

On February 16, 2020, Gary K. Mayfield was arrested for domestic battery. People v. Mayfield, 2021 IL App (2d) 200603, ¶4. The Lake County circuit court initially set his trial for April 27, 2020, but it was subsequently continued by the trial court to June 1, 2020. (On May 22, 2020, the Lake County circuit court incorporated the language of the Supreme Court’s orders into Administrative Order 20-31 (May 22, 2020), continuing all trials in the criminal division.) The defendant objected to any further continuances and demanded trial. The court rejected the defendant’s demand and continued his trial to August 3, 2020. The state then asked for a later date for trial, the defendant objected, and the court continued the trial to August 13, 2020. 2021 IL App (2d) 200603 at ¶11.

On August 11, 2020, the defendant moved to dismiss for failure to bring him to trial within the 120-day speedy-trial term. According to the defendant’s calculations, the speedy-trial term ran from February 16, 2020, until June 1, 2020, which was the date of the court’s first continuance pursuant to Lake County circuit court and Supreme Court administrative tolling orders. On August 31, 2020, the trial court denied the defendant’s motion and the trial was once again continued. After his bench trial on September 9, 2020, the defendant was found guilty, and the defendant appealed. 2021 IL App (2d) 200603 at ¶¶11 – 12.

In their analysis, the Second Circuit first noted the relevant portion of the speedy-trial statute, which reads:

(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he or she was taken into custody unless delay is occasioned by the defendant. . . . Delay shall be considered to be agreed to by the defendant unless he or she objects to the delay by making a written demand for trial or an oral demand for trial on the record. 725 ILCS 5/103-5(a).

The defendant argued that the speedy-trial term ran from February 16, 2020, to June 1, 2020 (the first tolling order continuance), and then again from August 3, 2020, to August 11, 2020 (when the defendant moved to dismiss), and, finally, from August 31, 2020 (when the motion was denied), to September 9, 2020, for an aggregate of 123 days. By the defendant’s calculations, he was brought to trial 3 days too late. 2021 IL App (2d) 200603 at ¶15.

The Second Circuit argued that the speedy-trial term was first tolled 8 days earlier (May 22, 2020), when the chief judge of the circuit court of Lake County issued the order continuing all criminal division trials. Therefore, even assuming the defendant’s calculation was otherwise accurate, the defendant’s trial started within the 120-day speedy-trial term. 2021 IL App (2d) 200603 at ¶16.

The defendant alternatively argued that the Supreme Court had exceeded its authority by suspending the speedy-trial term through its numerous orders, violating the separation-of-powers doctrine by infringing on the domain of the legislative branch. 2021 IL App (2d) 200603 at ¶17.

The Illinois Constitution provides, in relevant part, that “[t]he legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.” ILL.CONST. art. II, §1. Specifically, of the judicial branch, the Constitution states that “[g]eneral administrative and supervisory authority over all courts is vested in the [Illinois] Supreme Court and shall be exercised by the Chief Justice in accordance with its rules.” ILL.CONST. art. VI, §16.

The Mayfield court cited Kunkel v. Walton, 179 Ill.2d 519, 689 N.E.2d 1047, 1051, 228 Ill.Dec. 626 (1997), in which the Supreme Court held “[t]here are areas in which separate spheres of governmental authority overlap and certain functions are thereby shared. . . . Where matters of judicial procedure are at issue, the constitutional authority to promulgate procedural rules can be concurrent between the court and the legislature.” [Citation omitted.] 2021 IL App (2d) 200603 at ¶19. Applying this reasoning to the facts of the instant case, the Second Circuit deemed that the scheduling of criminal trials is a matter of procedure within the scope of the Supreme Court’s constitutional authority and, consequently, the exercise of this authority to toll the time limits under the speedy-trial statute through its orders overcomes the speedy-trial statute itself. 2021 IL App (2d) 200603 at ¶¶19 – 21.

The defendant relied on Newlin v. People, 221 Ill.166, 77 N.E. 529 (1906), a case in which the sickness of the judges resulted in the defendant not being brought to trial in a timely manner, in which the Supreme Court held: “We are without power to read into the statute in question an exception which does not appear there.” [Emphasis in original.] 2021 IL App (2d) 200603 at ¶23, quoting Newlin, supra, 77 N.E. at 530 – 531.

The Second Circuit summarily distinguished Newlin, stating that the issue of the illness of particular judges is not at all comparable to the COVID-19 pandemic that necessitated the Supreme Court’s orders. In Newlin, “there was no apparent reason why a judge from another circuit could not have been assigned to preside over the defendant’s trial so that it could have proceeded in the time allowed by law.” 2021 IL App (2d) 200603 at ¶24. Here, by contrast, a simple shifting of personnel would not have sufficed to address the issues created by the pandemic, which created “extraordinary and dire circumstances.” 2021 IL App (2d) 200603 at ¶25. Further, decided under the Illinois Constitution of 1870, Newlin does not “reflect the current broad scope of the judicial power, particularly our supreme court’s primary constitutional authority over court procedure, as illustrated in Kunkel.Id.

Supreme Court M.R. 30370 (eff. June 30, 2021)

In the wake of widely accessible vaccinations and a downturn in the number of daily new cases in Illinois, the Supreme Court issued another amended order, which granted that, beginning October 1, 2021, the statutory time limits under the speedy-trial statute “shall no longer be tolled.” M.R. 30370 (eff. June 30, 2021).

Since the issuance of the June 2021 order, however, with the emergence of the Omicron variant, the numbers of new cases of COVID-19 have surged again, well surpassing the peaks experienced in the height of the pandemic during 2020. As many schools and businesses return to remote operations in response to this resurgence, the need for the Supreme Court to reconsider a tolling order may resurface once again.

For more information about criminal law, see DEFENDING CRIMINAL CASES: TRIALS, SENTENCING, APPEALS, AND POSTTRIAL ISSUES (IICLE®, 2022). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit

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