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Table of Contents
-
Chapter 1 — Arrest, Search, and Seizure -
I. Introduction - II. [1.4] Has a Search or Seizure Occurred?
- III. Scope of the Fourth Amendment
- [1.9] The Exclusionary Rule
- [1.10] Type of Proceeding
- [1.11] Probation Revocation Proceedings
- [1.12] Other Types of Proceedings
- [1.13] Who May Assert Fourth Amendment Rights
- [1.14] Overnight Guests
- [1.15] Automobile Passengers
- [1.16] Open Fields
- [1.17] Abandoned Property
- [1.18] Garbage
- [1.19] Public Action vs. Private Individual
- IV. [1.20] Seizures
- [1.21] Consensual Encounters
- [1.22] Terry Stop/Detention
- [1.23] Informant’s Tip
- [1.24] Description
- [1.25] Street Encounters
- [1.26] Traffic Stops
- [1.27] Travelers
- [1.28] On-Scene Police Investigation
- [1.29] Arrest
- [1.30] What Constitutes an Arrest
- [1.31] Warrants
- [1.32] Warrantless Arrests
- [1.33] Extraterritoriality
- [1.34] Search Incident to Arrest
- [1.35] Attenuation
- [1.36] Basic Procedure for a Motion To Quash Arrest
- V. [1.37] Warrant Requirement
- [1.38] Administrative Warrants
- [1.39] Anticipatory Search Warrants
- [1.40] Specificity Requirement
- [1.41] Things To Be Seized
- [1.42] First Amendment Materials
- [1.43] Unidentified Persons — “John Doe” Warrant
- [1.44] Place To Be Searched
- [1.45] Scope of the Search
- [1.46] Probable Cause Supported by Oath or Affirmation
- [1.47] Execution of the Warrant — Detention of the Occupants
- [1.48] Staleness
- [1.49] Informants
- [1.50] Franks Hearings
- [1.51] Good Faith
- VI. [1.52] Warrantless Searches
- Searches for Less Than Probable Cause
- [1.53] Employee Searches
- [1.54] Special Government Needs
- [1.55] School Searches
- [1.56] Exigent Circumstances
- [1.57] Search Incident to an Arrest
- [1.58] Search of Vehicle
- [1.59] Search of Residence
- [1.60] Search of Person
- [1.61] Civil Warrants
- [1.62] Protective Sweeps
- [1.63] Hot Pursuit
- [1.64] Motor Vehicle Searches
- [1.65] Checkpoint Stops
- [1.66] Closed Containers
- [1.67] Miscellaneous Issues
- [1.68] Inventory Searches
- [1.69] Plain View
- [1.70] Independent Source
- [1.71] Inevitable Discovery
- [1.72] Consent
- [1.73] Mere Acquiescence
- [1.74] Involuntary and Voluntary Consent
- [1.75] Third-Party Consent
- [1.76] Apparent Authority
- [1.77] Emergency Exception
- VII. [1.78] Knock and Announce
- VIII. [1.79] Motion To Suppress
- IX. Appendix
- Chapter 2 — Representing Clients in the Early Stages of a Criminal Action
- Chapter 3 — Confessions
- I. Introduction
- II. Confessions and Due Process
- [3.5] In General
- [3.6] Pre-Connelly Cases
- [3.7] Colorado v. Connelly — Police Misconduct Necessary for Suppression
- [3.8] Illinois Law — Police Misconduct Not Necessary for Suppression
- Voluntariness
- [3.9] Burden of Proof and Standard of Appellate Review
- [3.10] Totality of Circumstances
- [3.11] Interrogation Techniques
- [3.12] Physical Abuse and Other Impermissible Tactics
- [3.13] Threats and Promises of Leniency
- [3.14] Deceit or Trickery
- [3.15] Confessor’s Mental Condition and Other Characteristics
- [3.16] Juveniles
- [3.17] Mental Retardation
- [3.18] Mental or Physical Condition at the Time of the Confession
- [3.19] Length of Detention
- III. Confessions, Self-Incrimination, and Miranda v. Arizona
- [3.20] In General
- [3.21] Miranda v. Arizona
- [3.22] Miranda and the Burden of Proof
- [3.23] Interpreting Miranda v. Arizona
- [3.24] Miranda Warnings
- [3.25] When Miranda Warnings Are Required
- [3.26] Custodial
- [3.27] Interrogation
- [3.28] Public Safety Exception
- [3.29] Miranda Waiver
- [3.30] Waivers by Words and by Actions
- [3.31] Knowing and Intelligent Waivers
- [3.32] Effect of Invoking Miranda Right to Silence
- [3.33] Effect of Invoking Miranda Right to Counsel
- IV. Confessions and the Sixth Amendment Right to Counsel
- V. Effect of a Motion To Suppress Statements at Trial
- VI. [3.40] Sample Motions To Suppress Statements
- Chapter 4 — Illinois Criminal Pretrial Discovery
- I. [4.1] Scope of Criminal Discovery Rules
- II. [4.2] Applicability of Discovery Rules: Rule 411
- III. Disclosure to Accused: Rule 412
- [4.3] Triggering Discovery Rules: Rule 412(a)
- [4.4] Names, Addresses, and Statements of Intended State Witnesses: Rule 412(a)(i)
- [4.5] Statements Made by Accused or by Codefendant: Rule 412(a)(ii)
- [4.6] Grand Jury Minutes: Rule 412(a)(iii)
- [4.7] Statements or Reports of Expert Witnesses and Results of Medical or Scientific Tests: Rule 412(a)(iv)
- [4.8] Documentary or Physical Evidence: Rule 412(a)(v)
- [4.9] Prior Criminal Records of State’s Witnesses: Rule 412(a)(vi)
- [4.10] Rebuttal Witnesses
- [4.11] Electronic Surveillance: Rule 412(b)
- [4.12] Material or Information Favorable to Defense: Brady v. Maryland and Rule 412(c)
- [4.13] Discretionary Disclosure: Rule 412(h)
- [4.14] Compliance by Prosecution: Rules 412(d) – 412(g)
- IV. Disclosure to Prosecution: Rule 413
- V. [4.19] Evidence Depositions: Rule 414
- VI. [4.20] Procedures in Capital Cases: Rule 416
- VII. [4.21] DNA Evidence: Rule 417
- VIII. Restrictions on Discovery
- IX. Regulation of Discovery
- X. [4.30] Bill of Particulars
- XI. Pretrial Discovery in Misdemeanor Cases
- XII. [4.36] Sample Pretrial Discovery Motions in Felony and Misdemeanor Cases
- XIII. [4.39] Checklist
- Chapter 5 — Pretrial Motions
- I. [5.1] Scope of Chapter
- II. [5.2] Motion To Dismiss Charge
- III. [5.3] Motion for Substitution of Judge
- IV. [5.6] Motion for Continuance — Specific Grounds
- V. [5.13] Motion for Change of Place of Trial
- VI. [5.14] Motion for Dismissal and Discharge for Violation of Right to Speedy Trial
- VII. [5.19] Motion In Limine To Preclude Use of Prior Convictions for Impeachment of Credibility of Defendant and Defense Witnesses
- VIII. [5.20] Motions Relating to Joinder and Severance
- IX. [5.23] Appendix — Sample Motions
- [5.24] Motion To Dismiss Charge
- [5.25] Motion for Substitution of Judge
- [5.26] Motion for Continuance
- [5.27] Motion for Change of Place of Trial
- [5.28] Motion for Dismissal of Charge and Discharge of Defendant for Speedy Trial Violation
- [5.29] Motion To Preclude Use of Evidence of Prior Conviction of Defendant for Impeachment Purposes
- [5.30] Motion To Sever Charges
- [5.31] Motion for Severance of Defendants (with Alternative Allegations)
- Chapter 6 — Cybercrimes and Use of E-Evidence in Criminal Cases
- I. [6.1] Introduction
- II. [6.2] Jurisdictional Issues
- III. Practical Use of Technology In Defending Criminal Cases
- IV. Obtaining Evidence for Use in Cybercrimes Cases
- [6.6] Search the Computer Itself
- [6.7] Search the Internet
- [6.8] Discovery; Administrative Subpoenas
- [6.9] Search Warrants
- Search Warrant Procedure; Requirements
- [6.10] Complaint for Search Warrant
- [6.11] Affidavit
- [6.12] Order for Search Warrant
- [6.13] Executing Warrant
- [6.14] Challenges to Search Warrants
- [6.15] Search Warrant — Constitutional Concerns
- [6.16] Surveillance of Electronic Communications
- V. Trial Considerations
- VI. [6.22] Illinois Laws Relating to Computer Crimes
- [6.23] Computer Tampering
- [6.24] Aggravated Computer Tampering
- [6.25] Computer Fraud
- [6.26] Identity Theft
- [6.27] Eavesdropping
- [6.28] Other Computer Crimes
- [6.29] Posting of Identifying Information on a Pornographic Internet Site
- [6.30] Child Pornography
- Indecent Solicitation of a Child
- [6.31] Definition, Intent, and Punishment
- [6.32] Entrapment
- [6.33] Online Property Offenses
- [6.34] Cyberstalking
- VII. [6.35] Constitutional Considerations
- VIII. [6.36] Conclusion
- IX. [6.37] Appendix A — Affidavit Sample Language
- [6.38] Definitions
- Sample Language for Search Warrant Affidavits
- [6.39] Computer Hardware Is Itself Contraband, Evidence, and/or an Instrumentality or Fruit of Crime
- [6.40] Computers Used To Obtain Unauthorized Access to a Computer (“Hacking”)
- [6.41] Computers Used To Produce Child Pornography
- [6.42] Computers Used in Illegal Business Operations
- [6.43] Seizure of Hardware and Conducting Subsequent Off-Site Search
- [6.44] Incremental Search
- [6.45] Use of Comprehensive Data Analysis Techniques
- [6.46] Description of Property To Be Seized at Business for Evidence of Drug Trafficking
- [6.47] Description of Property To Be Seized when the Computer Hardware Is Merely a Storage Container for Electronic Evidence
- [6.48] Description of Property To Obtain Records Stored with an ISP Pursuant to 18 U.S.C. §2703(a)
- X. [6.49] Appendix B — Contact Information for Electronic Service Providers and Other Useful Websites
- Chapter 7 — Psychological Issues and Defenses
- I. [7.1] Introduction
- II. Mental Health Expert Witnesses
- III. Unfitness To Stand Trial
- IV. Motion To Suppress
- V. Insanity Defense (NGRI)
- VI. Altered Mental States
- VII. Mitigation in Death Penalty Cases
- VIII. [7.25] Mitigation in Non-Death Cases
- IX. Sexually Violent (Dangerous) Persons (SVP)
- X. Defendants with Special Needs
- XI. Choosing the Right Expert
- XII. Cross-Examining the Opposing Expert
- Chapter 8 — Affirmative Defenses in Illinois
- I. [8.1] Introduction
- II. [8.2] The Right To Present a Defense
- III. Affirmative Defenses in Which the Prosecution Retains the Burden of Proof
- [8.6] Infancy
- [8.7] Intoxication
- [8.8] Self-Defense
- [8.9] Defense of Dwelling
- [8.10] Defense of Property
- [8.11] Compulsion
- [8.12] Capital Cases
- [8.13] Felony-Murder Exception
- [8.14] Compulsion as Mitigation
- [8.15] Necessity
- [8.16] Entrapment
- [8.17] Alibi
- [8.18] Mistake of Fact
- [8.19] Sexual Offenses: Reasonable Mistake of Age
- [8.20] Sexual Offenses: Reasonable Mistake as to Consent
- IV. Affirmative Defenses in Which Part of the Burden of Proof Shifts to the Defense
- V. [8.23] Conclusion
- Chapter 9 — Plea and Sentencing Bargaining
- I. Introduction
- II. Crimes and Penalties
- [9.3] Factors To Consider Before Plea Negotiations
- [9.4] Penalty Ranges for Particular Crimes
- [9.5] Sentence Range
- [9.6] Probation
- [9.7] Mandatory Sentences
- [9.8] Aggravating and Mitigating Factors
- [9.9] Enhanced Penalties and Mandatory Sentences
- [9.10] Concurrent and Consecutive Sentences
- [9.11] Avoiding Prison Time
- [9.12] Probation and Treatment Alternatives for Safe Communities (TASC)
- Alternatives To Consider
- [9.13] Supervision
- [9.14] Boot Camp
- [9.15] Periodic Imprisonment
- [9.16] Fines
- [9.17] County Detention in Addition to Probation
- [9.18] Expungeable Probation
- [9.19] Drug School
- [9.20] Other Programs
- [9.21] The Client’s Circumstances
- III. Truth in Sentencing/Good Time Credit
- IV. [9.26] Collateral Consequences
- V. Alternative Sentences
- VI. The Negotiation Process
- VII. Entering the Plea
- VIII. [9.41] Conclusion
- IX. [9.42] Appendix — Table of Sentencing Citations
- Chapter 10 — Trial Preparation and Strategy
- I. [10.1] Introduction
- II. Client Conference
- III. Pretrial Strategy
- [10.5] General Considerations
- [10.6] Pretrial Motions
- [10.7] Purpose of Pretrial Motions
- [10.8] Impact on Plea Bargaining
- [10.9] When To Begin
- [10.10] Investigation
- [10.11] Scene
- Witnesses
- [10.12] General Considerations
- [10.13] Witnesses for the Prosecution
- [10.14] Witnesses for the Defense
- [10.15] Physical Evidence
- [10.16] Recovery of Evidence
- [10.17] Preservation of Evidence
- [10.18] Demonstrative Evidence
- [10.19] Forensic Experts and Investigators
- [10.20] Development of the Theory of Defense
- [10.21] General Denial
- [10.22] Alibi Defense
- [10.23] Affirmative and General Defenses
- [10.24] Psychiatric Defense
- [10.25] Anticipate the State’s Case
- [10.26] Know Your Enemy
- [10.27] Prosecute Your Own Case
- [10.28] Review Physical Evidence
- [10.29] Witness Preparation
- [10.30] Preparation of the Defendant
- [10.31] Preparation of Lay Witnesses
- [10.32] Preparation of Expert Witnesses
- [10.33] Direct Examination
- [10.34] Cross-Examination
- [10.35] Prepare Documentary and Physical Evidence
- [10.36] Laying the Foundation for Each Piece of Evidence
- [10.37] Foundation for Audio Recordings
- [10.38] Foundation for Diagrams, Drawings, and Models
- [10.39] Foundation for Photographs and Videos
- [10.40] Foundation for Documentary Evidence
- [10.41] Establishing the Chain of Evidence
- Anticipate Evidentiary Issues
- [10.42] In General
- [10.43] Research Admissibility of Evidence
- [10.44] Hearsay
- [10.45] Recollection
- [10.46] Impeachment Techniques
- [10.47] State of Mind
- [10.48] Prejudicial or Inflammatory Evidence
- [10.49] Evidence of Other Offenses
- [10.50] Motions in Limine
- IV. [10.51] Final Review and Organization
- V. [10.58] Bench or Jury
- VI. Selection of the Jury
- [10.59] In General
- Voir Dire
- [10.60] Checklist of General Areas of Inquiry
- [10.61] Questioning Prospective Jurors
- [10.62] Expert Participation at Voir Dire
- [10.63] Selection Process
- [10.64] Systematic Exclusion of Jurors
- [10.65] Exercising All Peremptory Challenges
- [10.66] Challenges for Cause
- [10.67] Statutory Grounds
- [10.68] Other Grounds
- VII. Opening Statement
- VIII. State’s Case-in-Chief
- [10.72] Objection and Argument Regarding Evidence
- [10.73] Stipulations
- [10.74] Motions for Mistrial
- [10.75] Cross-Examination
- [10.76] Preparation for Cross-Examination
- [10.77] General Rules of Cross-Examination
- [10.78] Cross-Examination of Particular Types of Witnesses
- [10.79] Victim or Complaining Witness
- [10.80] Occurrence or Eyewitness
- [10.81] Coconspirator, Codefendant, or Informant
- [10.82] Police Officer or Law Enforcement Personnel
- [10.83] Elderly, Youthful, or Infirm Witness
- [10.84] Expert Witness
- [10.85] Impeachment
- [10.86] Motion for Directed Verdict
- IX. [10.87] Defense Case-in-Chief
- X. [10.93] Admission of Evidence
- XI. [10.94] Jury Instructions
- XII. [10.98] Closing Argument
- XIII. [10.102] Posttrial Motions
- XIV. [10.103] Juvenile Court Cases
- XV. [10.104] Homicide and Death Penalty Cases
- XVI. [10.105] Conclusion
- Chapter 11 — Jury Issues
- I. [11.1] Introduction
- II. [11.2] Basis of the Right to a Trial by Jury
- III. Jury Waiver
- [11.3] Waiving the Right to a Jury Is the Defendant’s Right
- [11.4] Withdrawing a Jury Waiver
- [11.5] The Timing of Jury Waiver
- [11.6] Partial Jury Waivers (Jury Trials with Fewer than 12 Jurors)
- [11.7] Factors for Client To Consider for Jury Waivers
- [11.8] The Client
- [11.9] Jury Tax
- [11.10] Cost
- [11.11] Type of Defense (Technical or Emotional)
- [11.12] Twelve Judges vs. One
- [11.13] Mandatory Sentencing
- [11.14] Appellate Issues
- [11.15] How a Waiver Is Executed
- IV. [11.16] The Jury Act and Other Related Acts
- V. [11.17] Voir Dire
- VI. Jury Instructions
- VII. Juror Misconduct, Tainted Jury, and Sequestration
- [11.26] Misconduct Generally
- [11.27] Impeaching Verdict After Jury Discharged
- [11.28] Possible Ways a Jury May Be Tainted
- [11.29] Racism in the Jury Room
- [11.30] The Media
- [11.31] Observation by Juror Outside of Court
- [11.32] External Communication with Jurors
- [11.33] Discussion of Case Before Parties Rest
- [11.34] Improper Communication with Judge Outside of Court
- [11.35] Visiting the Crime Scene
- [11.36] Misstatements by Juror During Voir Dire
- [11.37] Sequestration
- VIII. [11.38] Deadlock (Prim Instruction)
- IX. [11.39] Evidence in Jury Room
- X. [11.40] Jury Questions and Requests for Transcripts
- XI. Verdicts
- XII. [11.43] Considerations for Representation
- [11.44] Preparing the Client for Trial
- [11.45] Jury Process
- [11.46] Dress and Conduct
- [11.47] Whether To Testify
- [11.48] Questions To Expect
- [11.49] Counsel’s Preparation
- [11.50] Jail Garb and Restraints
- [11.51] Counsel’s Demeanor
- [11.52] Motions in Limine
- [11.53] Motions To Exclude Witnesses and Non-Witnesses
- [11.54] Promises in Opening Statement
- [11.55] Object, Object, Object
- [11.56] Motion for Directed Verdict
- [11.57] Closing Argument
- [11.58] Jury Instructions
- [11.59] Poll the Jury
- [11.60] Motion for New Trial Within 30 days
- XIII. [11.61] Conclusion
- Chapter 12 — Trial Legal Issues
- I. Conduct of the Judge
- II. The Prosecutor
- [12.4] Prosecutorial Misconduct
- [12.5] Closing Arguments
- [12.6] Opening Statements
- [12.7] Misstatements of Law
- [12.8] Misstatements of Fact
- [12.9] Comments Relating to the Defendant’s Possible Sentence
- Comments About Excluded Evidence, Evidence Not Offered, and Rulings of the Judge
- [12.10] Facts That Are Inadmissible
- [12.11] Assumptions and Facts Not Based in the Record
- [12.12] Misstating or Overstating the Evidence in Closing Argument
- [12.13] Defendant’s Failure To Present Evidence
- [12.14] Admissible Evidence
- [12.15] Continuing with Arguments or Questions After Objection Is Sustained
- Voicing Opinion
- [12.16] Personal Opinion That Defendant Is Guilty
- [12.17] Disparaging the Defendant or Witnesses
- [12.18] Witness’ Opinion Concerning Veracity of Other Witnesses
- [12.19] Argumentative Questions
- [12.20] Questions That Vilify Through Presumption
- [12.21] Prosecutor Vouching for Witnesses
- [12.22] Asking for Guilty Verdict in Order To Deter Future Lawbreaking
- [12.23] Comments on Defendant’s Failure To Testify
- [12.24] Evidence That Is “Uncontradicted” Versus “Undenied”
- [12.25] Failure To Confront or Call Witnesses
- [12.26] Defendant’s Failure To Testify When Defense Promises Testimony in Opening Statement
- [12.27] Commenting That Defendant Testified at Prior Trial
- Comments on Defendant’s Failure To Call Witnesses
- [12.28] Alibi Witness
- [12.29] Witness Equally Accessible to the State
- [12.30] Witness Who Has Been Barred from Testifying
- [12.31] Comments About Witnesses
- [12.32] Witness Credibility Based on Evidence
- [12.33] Mere Conflict in Testimony Insufficient To Establish a Witness Lied
- [12.34] Witness’ Relationship with Counsel May Be Used To Question Credibility
- [12.35] Improper To Give Own Opinion as to Witness’ Credibility
- [12.36] Prosecutor May Not Vouch for Witness
- [12.37] Prosecutor May Not Bolster a Witness’ Credibility
- [12.38] Invited Error Excuses Improper Comments
- [12.39] Waiver
- Comments About the Defendant
- [12.40] Inflaming Prejudices of Jury
- [12.41] Referring to Actions as Evil
- [12.42] Commenting on Irrelevant Character Flaws
- [12.43] Calling Defendant a Criminal
- [12.44] Prosecutor Saying Defendant Is Lying
- [12.45] Defendant’s Interest in Testifying
- [12.46] Prosecutor May Not Put Own Credibility in Issue
- [12.47] Criticizing Defendant for Exercising Constitutional Rights
- [12.48] Comments About Defense Counsel
- [12.49] Racial Comments
- [12.50] Comments About the Victim and Victim’s Family
- III. Trial Procedures
- IV. Verdicts
- [12.60] General Verdicts
- [12.61] Inconsistent Guilty and Not Guilty Verdicts
- [12.62] Inconsistent Guilty Verdicts Must Be Rejected
- [12.63] Convictions Following Bench Trials
- [12.64] Inconsistent Verdicts for Codefendants
- [12.65] Multiple Convictions Based on the Same Conduct
- [12.66] State Must Charge Separate Acts if It Seeks Multiple Convictions
- [12.67] Lesser Included Offenses
- [12.68] One-Act, One-Crime Violations
- [12.69] Charging Instrument Approach
- [12.70] Multiple Convictions Upheld
- [12.71] Offenses That Are Not Lesser Included Offenses of One Another
- [12.72] Multiple Convictions Improper
- [12.73] Multiple Convictions Cannot Be Entered Because One Is a Lesser Included Offense of the Other
- [12.74] Impeachment of Verdicts
- V. [12.75] Obtaining and Calling Witnesses
- [12.76] Issues That Arise When the State Calls Witnesses
- [12.77] Compulsory Process
- [12.78] Special Witnesses
- [12.79] Waiver of Statutory Right To Subpoena Witness
- [12.80] Requiring Defendant To Pay for Process Fees
- [12.81] Funding for Expert Witnesses
- [12.82] Witness’ Invocation of Privilege Against Self-Incrimination
- [12.83] State’s Interference with Defendant’s Right To Present Witnesses
- [12.84] Recalling a Witness
- Chapter 13 — Evidence
- I. [13.1] Introduction
- II. General Principles and Definitions
- [13.2] Admissibility of Evidence Generally
- [13.3] Relevancy and Materiality
- [13.4] Examples of Relevant Evidence
- [13.5] Examples of Irrelevant Evidence
- [13.6] Incompetent Evidence
- [13.7] Limited Admissibility
- [13.8] Curative Admissibility
- [13.9] The Completeness Doctrine
- [13.10] Rebuttal and Surrebuttal Evidence
- III. Types of Evidence
- [13.11] Presentation by Judicial Notice
- [13.12] Examples of Proper Judicial Notice
- [13.13] Examples of Improper Judicial Notice
- [13.14] Direct and Circumstantial Evidence
- [13.15] Demonstrative and Real or Physical Evidence
- [13.16] Demonstrative Evidence and Courtroom Demonstrations
- [13.17] Physical Evidence
- [13.18] Evidence Excluded Due to Lack of Sufficient Foundation
- [13.19] Chain-of-Custody Cases
- [13.20] Photographs
- [13.21] Videotapes and Audiotapes
- [13.22] Opinion Testimony
- [13.23] Opinion Testimony by Lay Witnesses
- [13.24] Opinion Testimony by Expert Witnesses
- [13.25] Scientific Evidence
- [13.26] Chemical Tests
- [13.27] Fingerprint Comparison
- [13.28] Handprint Evidence
- [13.29] Shoe Print Evidence
- [13.30] Handwriting Comparison
- Polygraph Tests
- [13.31] Use of Polygraph Results at Trial
- [13.32] Use of Polygraph Results in Other Types of Proceedings
- [13.33] Hypnosis
- [13.34] Ballistic Tests
- [13.35] Blood, Hair, and Teeth Comparison
- [13.36] DNA Evidence
- [13.37] Posttrial Forensic Testing
- [13.38] Character and Reputation Evidence — General Rules
- [13.39] Character and Reputation of Defendant
- [13.40] Character and Reputation of Witnesses
- Character and Reputation of Alleged Victim
- [13.41] Violent Crimes
- [13.42] Sex Offenses
- [13.43] Evidence Showing Consciousness of Guilt
- [13.44] Escape
- [13.45] Flight
- [13.46] Tampering
- [13.47] Evidence of Other Crimes
- As Substantive Evidence of Guilt
- [13.48] For Non-Propensity Purposes
- [13.49] For Propensity Purposes
- [13.50] As an Element of the Offense
- [13.51] As Impeachment
- [13.52] Evidence of Other Criminal Conduct by Witnesses
- [13.53] Evidence Suggesting Other Criminal Conduct by Defendant
- IV. Hearsay, Records, and Other Out-of-Court Statements
- [13.54] Generally
- [13.55] Examples of Admissible Testimony
- [13.56] Examples of Inadmissible Testimony
- [13.57] Confrontation Clause Issues
- Spontaneous Declarations/Excited Utterances and Corroborative Complaints
- [13.58] Spontaneous Declarations/Excited Utterances
- [13.59] Corroborative Complaints
- [13.60] Examples of Spontaneous Declarations and Corroborative Complaints
- [13.61] Prior Inconsistent Statements
- [13.62] Prior Consistent Statements
- [13.63] Prior Statements of Identification
- [13.64] Statements to Treating Physicians
- [13.65] Testimony from Prior Proceedings
- [13.66] Testimony About the Course of Police Investigation
- [13.67] Dying Declarations
- [13.68] Coconspirator Statements
- [13.69] Statements Against Penal Interest
- [13.70] Admissions
- [13.71] Statements About State of Mind
- [13.72] Defendant’s Testimony About His or Her Own State of Mind
- [13.73] Declarant’s Out-of-Court Statement Concerning His or Her Own State of Mind
- [13.74] Evidence, Including Statements of Others, Offered To Show an Effect on a Person’s State of Mind
- Writings and Other Records
- [13.75] Best-Evidence Rule
- [13.76] Business and Public Records
- [13.77] Computer Records
- [13.78] Summaries of Voluminous Records
- [13.79] Refreshing Recollection
- [13.80] Past Recollection Recorded
- [13.81] Privileged Communications
- [13.82] Husband-Wife Communications
- [13.83] Attorney-Client Privilege
- [13.84] Physician-Patient Privilege
- [13.85] Other Privileged Communications
- V. Raising Evidentiary Issues and Preserving Them for Review
- Chapter 14 — Preserving the Record
- Chapter 15 — Criminal Sentencing in Illinois
- I. [15.1] Introduction
- II. [15.2] Determining the Sentencing Range
- [15.3] Finding the Maximum and Minimum Penitentiary Sentences for the Charged Offense
- [15.4] Basic Ranges for Penitentiary Sentences, Excluding the Firearms Add-Ons
- [15.5] Particular Felonies
- [15.6] Class X: 6 to 30 Years
- [15.7] Class X Felonies: Greater than 6 to 30 Years
- [15.8] Class 1 Felonies: 4 to 15 Years
- [15.9] Class 1 Felonies: Greater than 4 to 15 Years
- [15.10] Class 2 Felonies: 3 to 7 Years
- [15.11] Class 2 Felonies: Greater than 3 to 7 Years
- [15.12] Class 3 Felonies: 2 to 5 Years
- Firearms Add-Ons
- [15.13] Application
- [15.14] Constitutionality
- [15.15] Determining Whether a Non-Penitentiary Sentence Is Available
- [15.16] Prohibited Probations
- [15.17] Presumption in Favor of Probation
- [15.18] Determining Whether Consecutive Sentencing Is Permitted or Required
- Mandatory Consecutive Sentences
- [15.19] Mandatory Consecutive Sentences Based on Severe Bodily Injury
- [15.20] General interpretation of the severe bodily injury consecutiveness provision
- [15.21] Definition of “severe bodily injury”
- [15.22] Mandatory Consecutive Sentences Based on Triggering Offenses: Single Course of Conduct
- [15.23] Discretionary Consecutive Sentences
- [15.24] Consecutive Sentences Needed
- [15.25] Inadequate Basis for Consecutive Sentences
- [15.26] Consecutive Sentences Requiring Reversal
- [15.27] Cases Affirming Consecutive Sentencing
- Determining Whether an Extended Term Sentence Is Permitted or Required
- [15.28] Generally
- [15.29] Apprendi Primer and Update
- [15.30] Apprendi “Fix” Statute
- Extended Terms: Length and Application of Apprendi
- [15.31] Length of Extended Terms
- [15.32] Recidivist Extended Terms
- [15.33] Non-Recidivist Extended Terms
- [15.34] Judicial Interpretation of the “Exceptionally Brutal or Heinous” Factor
- [15.35] Determining What Percentage of a Penitentiary Sentence Is Available for Award of Good Time Credits
- [15.36] Treatment as a Drug Addict
- [15.37] Impact Incarceration
- III. The Sentencing Hearing
- IV. [15.44] Conclusion
- Chapter 16 — The Criminal Appeal
- I. [16.1] Introduction
- II. [16.2] Scope of Chapter
- III. [16.3] Reaching the Reviewing Court
- IV. [16.9] Docketing Statement
- V. [16.10] Preparation of the Record
- VI. [16.11] Correcting the Record
- VII. Reading the Record, Finding the Issues
- VIII. [16.15] Waiver and Harmless Error
- IX. [16.16] Selecting the Issues To Be Raised
- X. Preparation of the Brief
- [16.17] Generally
- [16.18] Appellant’s Brief
- [16.19] Appellee’s Brief
- [16.20] Reply Brief
- [16.21] Time for Filing Briefs
- [16.22] Copies of Briefs; Service
- [16.23] Page Limitations
- [16.24] References to Parties
- [16.25] Footnotes and Quotations
- [16.26] Cover of Brief
- [16.27] Points and Authorities
- [16.28] Nature of the Case
- Issues Presented and Applicable Standards of Review
- [16.29] Issues Presented
- [16.30] Standard of Review
- Jurisdiction
- [16.31] Supreme Court
- [16.32] Appellate Court
- [16.33] Statutes Involved
- Statement of Facts
- [16.34] Generally
- [16.35] Accuracy, Completeness, Honesty
- [16.36] Non-Argumentative
- [16.37] Order of Presenting the Facts
- [16.38] Source of Facts
- [16.39] Length
- [16.40] Checking the Work
- Argument
- [16.41] Generally
- [16.42] Stating the Position
- [16.43] Arguing the Facts
- [16.44] Assertions
- [16.45] Authorities
- [16.46] Showing Prejudice
- [16.47] Brevity
- [16.48] Conclusion
- [16.49] Appendix
- [16.50] Brief-Writing Checklist
- XI. [16.51] Appellee’s Brief
- XII. [16.52] Reply Brief
- XIII. [16.53] Abstracts
- XIV. Oral Argument
- XV. [16.58] Conclusion
- XVI. [16.59] Checklist for Supreme Court Rules
- Chapter 17 — Illinois Post-Conviction Hearing Act
- I. [17.1] Introduction
- II. [17.7] Initiation of Proceedings: §122-1
- III. Limitations Period: §122-1(c)
- [17.13] General Rules
- [17.14] Date of Conviction
- [17.15] Claims of Actual Innocence
- [17.16] Time Limitation in Misdemeanor Cases
- [17.17] Effects of Legislative Amendments Altering the Statute of Limitations
- [17.18] Early Filings
- [17.19] Filing Beyond the Statutory Deadline
- [17.20] State Waiver of Statute of Limitations Defense
- [17.21] Pleading Lack of Culpable Negligence
- [17.22] Adequacy of Showing of Lack of Culpable Negligence
- [17.23] Reliance on Legal Advice or Action from Another
- [17.24] Claims Based on New Law Issued After Expiration of the Time for Filing
- [17.25] Prison Conditions
- [17.26] Other Circumstances
- IV. [17.27] Rights of Indigents
- [17.28] Appointment of Counsel in Capital Cases: §122-2.1(a)(1)
- [17.29] Appointment of Counsel in Noncapital Cases: §122-4
- [17.30] Counsel on Post-Conviction Appeal
- [17.31] Expert and Other Fees
- Transcripts
- [17.32] Availability of Record on Appeal While Preparing Post-Conviction Petition
- [17.33] Record on (Post-Conviction) Appeal
- V. [17.34] Successive Petitions
- VI. [17.40] Fitness for Post-Conviction Proceedings
- VII. [17.41] Duties of Post-Conviction Counsel
- VIII. Circuit Court Procedures
- [17.48] Overview of the Post-Conviction Process
- [17.49] Stage 1: Summary Dismissal of Noncapital Petitions Under §122-2.1
- [17.50] 90-Day Summary Dismissal Period
- [17.51] Frivolous or Patently Without Merit
- [17.52] Consideration by Circuit Court
- [17.53] Penalties for Frivolous Filings
- [17.54] Stage 2: Counseled Pleading Stage
- [17.55] Appointment of Counsel
- [17.56] Amending the Pro Se Petition
- [17.57] Responsive Pleading by the State
- [17.58] Other Pleadings
- [17.59] Hearing on Motion To Dismiss
- [17.60] Stage 3: Fact Finding
- [17.61] Need for an Evidentiary Hearing
- [17.62] Burden of Proof
- [17.63] Scope of Hearing and Types of Proof
- [17.64] Presence of Petitioner
- [17.65] Discovery
- [17.66] Change of Judge or Venue
- [17.67] Other Hearings
- [17.68] Motions To Reconsider
- IX. [17.69] Contents of Petition — Section 122-2
- X. [17.73] Cognizable Claims
- [17.74] Retroactivity; Teague-Flowers Doctrine
- [17.75] Ineffective Assistance of Counsel
- [17.76] Elements of Claim
- [17.77] Performance Prong
- [17.78] Prejudice Prong
- [17.79] Pretrial and Trial
- [17.80] Sentencing
- [17.81] Direct Appeal
- [17.82] Guilty Plea Proceedings
- [17.83] Failure To Seek Expert or Other Assistance
- [17.84] Brady Claims
- [17.85] General Principles
- [17.86] Knowing Use of Perjured Testimony
- [17.87] Other Brady Claims
- [17.88] Innocence Claims
- [17.89] Invalid Waivers of Rights
- [17.90] Involuntary Confessions
- [17.91] Fitness Claims
- [17.92] Improper Influences on Jury
- [17.93] Judicial Corruption
- [17.94] Mental Retardation as Bar to Execution
- [17.95] Other Claims
- XI. [17.96] Waiver; Res Judicata
- [17.97] No Direct Appeal Taken
- [17.98] Claims Based on Matters Outside Record
- [17.99] Claims Not Barred Due to Ineffective Assistance of Direct Appeal Counsel
- [17.100] Claims Previously Raised on Direct Appeal Raised on Post-Conviction with Additional Evidence
- [17.101] Fundamental Fairness
- [17.102] Change in Law Following Direct Appeal
- [17.103] Ineffective Assistance of Counsel Claim Not Barred: Relationship Between Prior Attorneys
- [17.104] Successive Post-Conviction Petitions
- [17.105] Waiver by State
- XII. Appellate Review
- Chapter 18 — Habeas Corpus
- I. Preliminary Considerations
- II. [18.4] Introduction
- [18.5] Nature of the Remedy
- [18.6] The Place of Habeas Corpus in the Criminal Process
- [18.7] First Stage — Direct Appeal
- [18.8] Second Stage — State Collateral Review
- [18.9] Third Stage — Federal Collateral Review
- [18.10] A Bit of History — The Common-Law Writ
- [18.11] More History — The Statutory Habeas Power
- [18.12] Current Federal Habeas Corpus Statutes
- [18.13] 28 U.S.C. §2254
- [18.14] 28 U.S.C. §2241, et seq.
- [18.15] 28 U.S.C. §2255
- [18.16] Governing Rules
- [18.17] Rules Governing §2254 Cases in the United States District Courts
- [18.18] Rules Governing §2255 Proceedings for the United States District Courts
- [18.19] Federal Rules of Appellate Procedure
- [18.20] Circuit Rules
- [18.21] Applicability of the Federal Rules of Civil Procedure to §2254 Proceedings
- Local Rules
- [18.22] Capital Habeas Rules for the Seventh Circuit
- [18.23] Northern District of Illinois
- [18.24] Central District of Illinois
- [18.25] Southern District of Illinois
- III. Initiating the Case Under §2254
- [18.26] Pro Se Petitioners
- [18.27] Appointment of Counsel
- [18.28] In Non-Death Penalty Cases
- [18.29] In Death Penalty Cases
- [18.30] Pro Se Petition
- [18.31] Notice of Intent
- [18.32] McFarland Motion by Counsel
- [18.33] What attorney should request appointment?
- [18.34] Conflict
- [18.35] Qualifications
- [18.36] Filing the motion
- [18.37] Contents of motion for appointment
- Compensation of Appointed Counsel
- [18.38] In Non-Death Penalty Cases
- [18.39] In Death Penalty Cases
- [18.40] Summary
- IV. [18.41] Statute of Limitations
- Calculation
- [18.42] Computation
- Initiation
- [18.43] Convictions Final After April 24, 1996
- [18.44] Convictions Final Before April 24, 1996
- [18.45] Mailbox Rule
- [18.46] 180-Day Statute of Limitations Under §2263 Inapplicable
- [18.47] Effect of Untimely Filing
- [18.48] Tolling
- [18.49] Statutory Tolling
- [18.50] “Properly Filed”
- [18.51] “State Post-Conviction or Other Collateral Review”
- [18.52] “With Respect to the Pertinent Judgment or Claim”
- [18.53] “Pending”
- [18.54] Equitable Tolling
- [18.55] Equitable Tolling Found
- [18.56] Equitable Tolling Not Found
- [18.57] Actual Innocence as Grounds for Equitable Tolling
- [18.58] Waiver of Statute of Limitations
- V. Investigation of the Petition
- VI. Preparation of the Petition
- [18.64] Clerk’s Form
- [18.65] Attorney Petitions
- [18.66] Caption
- [18.67] Citation of Authority
- [18.68] Constitutional Basis and Supreme Court Authority for Claim
- [18.69] Further Discussion of Authority
- [18.70] Procedural History
- [18.71] Statement of Facts
- [18.72] Statement of the Claim
- [18.73] Conclusion
- [18.74] Verification
- [18.75] Exhibits
- VII. Filing the Petition
- VIII. Initial Proceedings on the Petition
- Assignment
- [18.87] District
- [18.88] Division
- [18.89] Judge
- [18.90] Magistrate Judge
- [18.91] Capital Habeas Rules for the Seventh Circuit
- [18.92] Local Rules — Northern District
- [18.93] Local Rules — Southern District
- [18.94] Local Rules — Central District
- [18.95] Preliminary Consideration — Summary Dismissal
- [18.96] Initial Proceedings in Death Penalty Cases
- [18.97] Capital Habeas Rules for the Seventh Circuit
- [18.98] Local Rules
- Scheduling
- [18.99] Generally
- [18.100] Opt-In Schedule for Death Penalty Cases Inapplicable to Illinois Petitioners
- IX. Special Problem Filings
- X. Amendment
- XI. Responsive Pleadings
- XII. [18.117] The State Court Record
- XIII. [18.124] Legal Issues
- Procedural Issues
- [18.125] Exhaustion of State Remedies
- [18.126] Mixed Petitions
- [18.127] Dismissal Without Prejudice
- [18.128] Stay of Proceedings
- [18.129] Waiver of Exhaustion Requirement
- [18.130] State Procedural Default
- [18.131] “Independent” State Grounds
- [18.132] “Adequate” State Grounds
- [18.133] Merits Determination in State Courts
- [18.134] Burden
- [18.135] Cause and Prejudice as a Defense to State Procedural Bar
- [18.136] Cause
- [18.137] Prejudice
- [18.138] Miscarriage of Justice as a Defense to State Procedural Bar
- [18.139] Forfeiture of State Procedural Default
- Substantive Issues
- [18.140] Standard for Relief
- [18.141] Claims Adjudicated on the Merits in State Court Proceedings
- [18.142] State Court Decisions Contrary to, or Unreasonably Applying, United States Supreme Court Law
- [18.143] The “contrary to” and “unreasonable application of” clauses
- [18.144] The “clearly established Federal law” and “Supreme Court of the United States” clauses
- [18.145] Unreasonable Determination of the Facts
- [18.146] New Rules — Retroactivity
- [18.147] State Findings of Fact Presumed Correct
- [18.148] Harmless Error
- Special Substantive Issues
- [18.149] Ineffective Assistance of Counsel
- [18.150] Fourth Amendment Claims
- XIV. [18.151] Discovery
- XV. [18.152] Expansion of the Record
- XVI. Evidentiary Hearing
- XVII. Relief
- XVIII. Appeal
- XIX. [18.168] Clemency
- XX. [18.169] Habeas Corpus for State Prisoners Under 28 U.S.C. §2241
- XXI. [18.170] Habeas Corpus for Federal Prisoners Under 28 U.S.C. §2255
- XXII. [18.171] Illinois State Habeas Corpus
- XXIII. [18.172] Ministerial Habeas Corpus
- XXIV. [18.173] Sources
- XXV. Appendix
- Sample Motions, Pleadings, and Orders in the District Court
- [18.183] Motion for Appointment of Counsel
- [18.184] Motion for Leave To Incur Expenses
- [18.185] Motion for Writ of Habeas Corpus ad Testificandum
- [18.186] Order for Writ of Habeas Corpus ad Testificandum
- [18.187] Writ of Habeas Corpus ad Testificandum
- Sample Documents for Appeal
- [18.188] Notice of Appeal
- [18.189] Docketing Statement
- Sample Motions, Pleadings, and Orders in the Illinois Supreme Court
- [18.190] Motion for Stay of Execution During Habeas Corpus Proceedings
- [18.191] Order for Stay of Execution During Habeas Corpus Proceedings
- [18.192] Status Report
- Chapter 19 — Appendix — Criminal Law Practitioners Beware: That Supposed “Non-Conviction” of Supervision May Count as a Conviction for Federal Purposes
- Index
- Table of Cases
- List of Forms
Authors
- Anna M. Ahronheim
Anna M. Ahronheim
Anna M. Ahronheim is an attorney in private practice. Ms. Ahronheim obtained her J.D. from the University of Illinois College of Law. For the next 22 years, she was an attorney with the Illinois Office of the State Appellate Defender. From 2008 through 2017, she was the supervisor of the Capital Habeas Unit of the Federal Public Defender’s Office in the Western District of Pennsylvania and represented clients in habeas corpus proceedings. She has given presentations on postconviction practice at seminars sponsored by numerous organizations and law schools. She intends to devote her post-public-defender practice to the representation of incarcerated clients in Pennsylvania, Illinois, and Michigan.
- David P. Bergschneider
David P. Bergschneider
No bio available.
- Patrick Cassidy
Patrick Cassidy
No bio available.
- Santiago A. Durango
Santiago A. Durango
No bio available.
- Richard Dvorak
Richard Dvorak
Richard Dvorak is the owner of Dvorak Law Offices, LLC, in Willowbrook and Chicago, where he concentrates in criminal defense and appeals and civil rights litigation involving police misconduct. He is member of the Advisory Board for First Defense Legal Aid. He authored Cracking the Code: “De-Coding” Colorblind Slurs During the Congressional Crack Cocaine Debates, published in the Michigan Journal of Race and Law. Mr. Dvorak received his B.A. from the University of Wisconsin-Madison and his J.D. from DePaul University College of Law.
- Leonard C. Goodman
Leonard C. Goodman
No bio available.
- Fletcher P. Hamill
Fletcher P. Hamill
No bio available.
- Lawrence J. Heinrich
Lawrence J. Heinrich
No bio available.
- Marijane Hemza-Placek
Marijane Hemza-Placek
No bio available.
- Rachel J. Hess
Rachel J. Hess
Rachel J. Hess is a sole practitioner in St. Charles, where she concentrates in criminal defense and appeals and has been Conflict Counsel for Kane County since 2004. In addition, she represents clients before the Secretary of State and other administrative agencies. Ms. Hess received her B.S. from Illinois State University, her J.D. from Mississippi College School of Law, and her L.L.M. in Information Technology from The John Marshall Law School.
- Stuart P. Katz
Stuart P. Katz
No bio available.
- Thomas A. Lilien
Thomas A. Lilien
Thomas A. Lilien is the Deputy Defender in charge of the Second District Office of the State Appellate Defender. He received his J.D. from Notre Dame Law School in 1978 and was admitted to the Illinois Bar that same year. He joined the Office of the State Appellate Defender as an Assistant Defender in the Third District Office in October 1978 and worked there until his transfer to the Second District Office in 1988. Mr. Lilien continued to serve as an Assistant Defender until he assumed the Deputy Defender position as of January 1, 2006. Mr. Lilien served as an adjunct faculty member co-teaching an appellate advocacy course at Northern Illinois University College of Law from 1986 to 2015. He has also spoken on criminal and appellate topics to several organizations, including the Illinois Public Defender Association and the DuPage and Kane County Bars. He served on IICLE®’s Board of Directors from 2006 until 2017.
- Andrea D. Lyon
Andrea D. Lyon
No bio available.
- Crystal H. Marchigiani
Crystal H. Marchigiani
No bio available.
- Melissa A. Matuzak
Melissa A. Matuzak
No bio available.
- Darren E. Miller
Darren E. Miller
No bio available.
- Alison H. Motta
Alison H. Motta
Alison H. Motta has been in private practice since 2001. She is a Partner with Motta & Motta LLC in Aurora, where she concentrates her practice in criminal defense. She is a member of the state and federal trial bar. She is a member of the National Association of Criminal Defense Lawyers and ATLA. Ms. Motta received her J.D. from Chicago-Kent College of Law.
- Robert M. Motta
Robert M. Motta
No bio available.
- Robert M. Motta II
Robert M. Motta II
Robert M. Motta II is a Partner with Motta & Motta LLC in Aurora, where he concentrates his practice in criminal defense (both state and federal) and family and divorce law. He is a member of the National Association of Criminal Defense Lawyers and ATLA. Mr. Motta attended Eastern Illinois University for undergraduate studies and received his J.D. from Chicago-Kent College of Law.
- Kathleen M. Pantle
Kathleen M. Pantle
Kathleen M. Pantle is a retired Judge of the Circuit Court of Cook County. She is a former member of the Illinois Pattern Jury Instructions (Criminal) Committee. She is an Alternate Chair of the Illinois Torture Inquiry and Relief Commission and has served as Chair and Vice-Chair of the Chicago Bar Association Commercial Litigation Committee. Judge Pantle received her B.S. from Loyola University Chicago and her J.D. from Loyola University Chicago School of Law.
- Stephen L. Richards
Stephen L. Richards
Stephen L. Richards is an attorney at the Law Office of Stephen L. Richards, in Chicago. He has been a member of the Illinois Supreme Court’s Screening Committee for the Capital Litigation Trial Bar and is former President of the Illinois Public Defender Association. He has lectured and written extensively on criminal law and the death penalty. Mr. Richards graduated from the University of Chicago and from Brooklyn Law School.
- Joshua Sachs
Joshua Sachs
Joshua Sachs is Principal Attorney of the Law Office of Joshua Sachs, in Evanston, where he concentrates his practice in appellate criminal cases. Mr. Sachs, now semi-retired after 45 years of active practice in the trial and appeals level defense of Illinois and federal criminal prosecutions, has returned to music, his first love. He plays the cello in the Evanston Symphony Orchestra and in the Symphony of Oak Park and River Forest. Mr. Sachs earned his B.A. from Grinnell College and his J.D. from the University of Illinois College of Law.
- James A. Shapiro
James A. Shapiro
No bio available.
- Sherry Silvern
Sherry Silvern
No bio available.
- Josette Skelnik
Josette Skelnik
No bio available.
- Jed H. Stone
Jed H. Stone
Jed H. Stone is a criminal defense lawyer with Stone & Associates, Ltd., in Waukegan, where he focuses his practice on criminal defense. He is a member of both the American Board of Criminal Lawyers and the National Association of Criminal Defense Lawyers, and he has been named a Super Lawyer (2016 – 2022). Mr. Stone received his B.A. from Lake Forest College and his J.D. from Chicago-Kent College of Law.
- Nancy Vincent
Nancy Vincent
No bio available.
- Daniel J. Walsh
Daniel J. Walsh
No bio available.
- Jay Wiegman
Jay Wiegman
No bio available.
Defending Illinois Criminal Cases (ARCHIVED 2010 EDITION & 2013 SUPPLEMENT)
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