WHAT ARE YOUR CHILD’S RIGHTS WHEN QUESTIONED BY POLICE?

Posted on September 10, 2019 by admin

After getting in trouble at school, your minor child was questioned by police. You were not present, and your child was scared and started talking.

What are your child’s rights?

Under 705 ILCS 405/5-401.5, your child’s statement is presumed inadmissible as evidence if an officer or other public official takes your child’s statement during a custodial interrogation without first reading your child his or Miranda rights. The officer must then ask: (A) “Do you want to have a lawyer?” and (B) “Do you want to talk to me?”

Further, any statement your minor child makes as a result of custodial interrogation conducted at a police station or other place of detention is presumed inadmissible as evidence unless the custodial interrogation is electronically recorded, and the recording is substantially accurate and not intentionally altered. Recording is only required for certain offenses such as felonies and misdemeanor sex offenses. An unrecorded statement may still be admitted under certain circumstances, such as when 1) electronic recording was not feasible, 2) your child spontaneously says something that wasn’t responding to a question, or 3) your child asks to talk without being recorded.

A statement made without the above safeguards may become admissible if the state can show by a preponderance of the evidence that the statement was voluntarily given and is reliable based on the totality of the circumstances.

Whether the above safeguards apply may depend on if your child is considered to be “in custody.” The above law defines “in custody” as “any interrogation (i) during which a reasonable person in the subject’s position would consider himself or herself to be in custody and (ii) during which a question is asked that is reasonably likely to elicit an incriminating response.”

If your child has been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your child’s case for its best possible defense. Was your child in custody? Did the police follow proper procedures? Can the state prove all the elements of your child’s offense beyond a reasonable doubt? Even if your child’s confession is admissible, an attorney can help protect his or her rights going forward and may be able to negotiate a more favorable plea agreement than you could on your child’s behalf.

If you have questions about this or another related Illinois criminal matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

See also In re Jose A.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in interrogation, juvenile, juvenile delinquency, police questioning | Leave a comment

WHEN AM I CONSIDERED UNFIT TO STAND TRIAL IN ILLINOIS?

Posted on August 28, 2019 by admin

You must be fit to stand trial before you can be prosecuted. You must also be fit before sentencing or entering a plea agreement. Under Illinois law, you are not considered fit if you cannot assist in your defense or understand the nature and purposes of the proceedings against you because of your mental or physical condition.

If your fitness is in question, your attorney must raise the issue before a plea is entered or before, during or after trial. In other words, you cannot claim you are unfit after you have entered a plea agreement or been sentenced.

If there is bona fide doubt as to your fitness, the court must order a determination of that issue before moving forward with a plea agreement trial or sentencing.

Before trial and at your request, a qualified expert may be appointed to examine you in order to determine whether a bona fide doubt as to your fitness to stand trial may be raised. If there is such a doubt, then the court may order an appropriate examination. However, the order for an examination will not prevent further proceedings in the case from taking place.

When a bonafide doubt as to your fitness has been raised, the state must prove by a preponderance of the evidence that you actually are fit or else the case cannot move forward. The court may also call its own witnesses and conduct its own inquiry.

If you are deemed unfit, the court may rule on any motions where your presence is not essential to fairly determine the issues.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your case for its best possible defense. If there are questions about your fitness, an attorney can help present them to the judge.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

See 725 ILCS 5/104-11 and People v. Westfall.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in fitness for trial | Leave a comment

CAN I BE CONVICTED OF DISORDERLY CONDUCT FOR ASKING A QUESTION?

Posted on August 17, 2019 by admin

(Updated 1/4/24: See our related posts at What is the Difference Between Felony and Misdemeanor Disorderly Conduct? and Disorderly Conduct: Calling in a False Alarm).

You were just curious, so you called a government office and started asking questions. You wanted to know how they handle threats involving guns or bombs. Something in the nature of your questions spooked the office manager, and now you have been charged with disorderly conduct.

Were your questions enough to get you convicted? What about freedom of speech? What can you do now?

In Illinois, depending on what you said and how you said it, you could be convicted of disorderly conduct. (See 720 ILCS 5/26-1(a)(1)). To do so, the State must prove beyond a reasonable doubt that you “knowingly” committed an act in an unreasonable manner that you knew or should have known would tend to alarm or disturb another so as to cause a breach of the peace. The court looks at the unreasonableness of your conduct and its tendency to disturb. You need not have made overt threats or used abusive language.

In People v. Swenson, the defendant asked a school what would happen if he showed up on campus with a gun, whether the school had bulletproof windows, and how long it would take for police to arrive. Amidst other bizarre comments, the defendant asked the school principal if she was prepared to have the “sacrificial blood of lambs” on her hands. The court held that under the circumstances, defendant clearly exceeded the bounds of reasonableness and that he should have known his conduct would be disturbing. The court also held that the First Amendment did not protect the manner in which defendant expressed himself.

If you have been charged with disorderly conduct or a similar crime, contact an experienced criminal law attorney immediately. Can the state prove all the elements of your offense beyond a reasonable doubt? A determination of disorderly conduct is very fact specific. An experienced attorney, who knows the courthouse, may be able to present your facts to a judge in their most favorable light.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in disorderly conduct | 2 Comments

WILL MY OUTSTANDING COURT FINES KEEP ME FROM EXPUNGING OR SEALING MY CRIMINAL RECORD IN ILLINOIS?

Posted on August 9, 2019 by admin

The answer, in most cases, is no.

A change in Illinois law permits you to expunge or seal your criminal record notwithstanding any fines or fees you may owe.

Before you can clear your criminal record, your case must have been terminated. As of August 10, 2018, the definition of termination does not include any outstanding financial obligations. Therefore, the court cannot deny your petition because you owe a court or government imposed debt. Once your record is sealed, the court may still permit access to any records necessary to collect the debt from you.

The court may still deny your petition if you haven’t paid legal restitution to a victim unless that restitution has been converted to a civil judgment.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com. Reference: Public Act 100-0776

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in clear criminal record, criminal record, expungement | Leave a comment

CAN POLICE SEARCH THE HALLWAY OF YOUR APARTMENT BUILDING?

Posted on July 18, 2019 by admin

The Fourth Amendment guarantees citizens the right to be free from unlawful searches. Therefore, an officer cannot enter your home without a warrant unless some exception to the warrant requirement—such as consent—exists.

Court have also recognized that a certain area around your home, known as the curtilage, is protected from police intrusion. Your front porch would be one example but what about the hallway of an unlocked apartment building? An Illinois court says yes.

In People v Bonilla, an officer used a narcotics dog to sniff the hallway outside defendant’s apartment. The court held that the police officer’s actions constituted a search under the fourth amendment even though defendant’s apartment building was unlocked and unsecured. The court reasoned that a person who lived in an unlocked apartment building was not entitled to less protection than a person who lived in a locked apartment building. At the heart of the fourth amendment is a person’s right to retreat into his or her own home and be free from unreasonable governmental intrusion. The fourth amendment does not differentiate as to the type of home involved.

The defendant may have lacked a reasonable expectation of complete privacy in the hallway or an absolute right to exclude all others from it. But this did not mean that police could use sensitive devices or a trained drug-detection dog directly in front of his apartment door.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your case for its best possible defense. Were police searching somewhere they had no right to be? Even if the police acted legally and the evidence against you is overwhelming, an attorney who is respected in the court house may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(The Illinois Supreme Court upheld the above decision on appeal in People v. Bonilla).

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in curtilage, illegal search, search and seizure | Leave a comment

ILLINOIS ACCOMODATION FOR DEAF PRISONERS

Posted on July 12, 2019 by admin

For the deaf, imprisonment can be especially isolating and punitive. Inmates may literally have no one to talk to. As a result of a federal class action law suit, Illinois agreed to accommodate prisoners with hearing disabilities.

Among its terms, the Illinois Department of Corrections (IDOC) will begin screen for hearing loss, create a centralized database on inmates with hearing disabilities and provide a specialist to assess an inmate’s need for services. IDOC must keep a ready supply of hearing aid batteries. IDOC must also make certain technologies available, such as amplified telephones and a teletypewriter.

IDOC audio-visual media such as televisions and movies must have open and closed captioning. Hearing impaired inmates may choose headphones that prevent them from disturbing other inmates.

IDOC must adopt visual and tactile alert notifications. Such notices may be used to inform inmates of mealtime, visitors, medical appointments, evacuations and emergencies.

Handcuffs may be removed to allow a prisoner to communicate through American Sign Language. Hearing impaired prisoners must have equal job opportunities.

The settlement may be viewed at uplc.chicagoorg

If you have been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your case for its best possible defense. Can the state prove all the elements of your offense beyond a reasonable doubt? Even if the evidence against you is overwhelming, an attorney who is respected in the court house may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in Uncategorized | Leave a comment

CAN YOU BE CHARGED WITH UNLAWFUL USE OF A WEAPON WHEN YOU ACTED IN SELF DEFENSE?

Posted on July 1, 2019 by admin

You were visiting family when things got crazy. One drunken relative started beating their spouse so you grabbed the family gun to put a stop to it. But since you didn’t have a gun license, the police arrested you on a weapons charge.

Can they do that if you were just trying to protect yourself? Depending on the facts, a recent Illinois court said no.

You may be charged with Aggravated Unlawful Use of a Weapon if you (1) knowingly carried or concealed on your person an uncased and loaded pistol, (2) at a time when you were not on your own land, in your own abode, or in a fixed place of business, or you were on public land, (3) that pistol was immediately accessible when you carried it, and (4) you did not have a Firearm Owner’s Identification card or concealed carry license.

On the other hand, you may be acting in self defense or defense of another if (1) unlawful force is threatened against a person, (2) the person threatened was not the aggressor, (3) the danger of harm was imminent, (4) the use of force (by the threatened person) was necessary, (5) the person threatened actually and subjectively believed a danger existed that required the use of force applied, and (6) the beliefs of the person threatened were objectively reasonable.

In People v. Crowder, 2018 IL App (1st) 161226, the court held that self defense could be a defense to a weapons charge: In that case, three men knocked down the defendant’s father and threatened to kill him. Defendant grabbed the gun from his father’s holster to protect both his father and himself. The court reversed his conviction based on necessity or self defense.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your case for its best possible defense. Even if the police acted lawfully and the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in necessity defense, self defense, unlawful use of a weapon, UUW | Leave a comment

CAN I SHOW MY TATTOOS AT TRIAL WITHOUT HAVING TO TESTIFY?

Posted on June 3, 2019 by admin

Let’s say you have been arrested based on an eye witness’s identification. The witness, however, is mistaken, and you can prove it by showing that you have physical characteristics missing from the witness’s description. For a number of reasons, your lawyer does not want you to testify on your own behalf. Can you show your physical characteristics without taking the stand?

A recent Illinois court decision says that you can—provided you can lay the foundation necessary to admit the characteristic into evidence.

In People v. Gonzalez, the defendant was linked to a murder based solely on eyewitness identification. The witnesses, however, did not mention the tattoos on defendant’s hands. The defendant wanted to show his tattoos at trial. The court denied his request reasoning that the state would be unable to cross-examine defendant as to when he had obtained the tattoos.

The appellate court disagreed. Physical characteristics are not testimonial and therefore do not raise the right to cross-examine. In fact, the state can force a defendant to show tattoos without violating the defendant’s right against self-incrimination. Foundation on the timing of the tattoos could instead be laid by a tattoo parlor receipt or by testimony from other witnesses who could then be cross-examined. Therefore, a defendant can show his tattoos without testifying.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can help present the facts of your case for your best possible defense. Can the state prove all the elements of your offense beyond a reasonable doubt? Can you present evidence in your defense without having to testify? Even if the police acted lawfully and the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in physical evidence, self incrimination, tattoo, testimony | Leave a comment

CAN YOU SUPPRESS INCRIMINATING STATEMENTS MADE AT AN ARREST?

Posted on May 27, 2019 by admin

When the police came after you, you said some foolish things that you wish you could take back. Is there a way?

The answer may turn on the exact moment you were legally under arrest.

Generally, you are under arrest if a reasonable person in your shoes would feel they were not free to leave. If you could have walked away but didn’t, your statements may be used against you. If a reasonable person would not feel free to leave and no Miranda warnings were given, an attorney may be able to ask the court to suppress your statements.

To determine when you are under arrest, Illinois courts have weighed the following factors: 1) the threatening presence of several officers, 2) some physical touching of your person, 3) the use of language or tone of voice indicating that you may be compelled to comply with the officer’s request, 4) the time, place, length, mood, and mode of the encounter between you and police, 5) any indication of formal arrest or restraint such as the use of handcuffs or display of weapons, 6) the officers’ intent, 7) your subjective belief or understanding, 8) whether you were told you could refuse to accompany police or that you were free to leave, 9) whether you were transported in a police car, 10) whether you were told you were under arrest, and 11) the language officers used.

For example, in People v Gutierrez, the court found that the defendant’s actual arrest occurred in defendant’s home rather than at the police station. Six to ten armed officers had arrived at defendant’s home awakening him at 5 a.m. Officers searched defendant’s bedroom. Defendant was never told he was free to leave. Finally, defendant was handcuffed and transported in a police car, although this was not necessary to ensure the safety of the officers or investigation. Therefore, a reasonable person would not have felt free to leave. Because defendant’s arrest had been illegal, his statements could not be used unless the prosecution could otherwise show that the statements did not stem from the illegal arrest.

If you are charged with a criminal offense, contact an experienced criminal law attorney immediately. An attorney can evaluate your case for its best possible defense. If officers lacked probable cause to arrest you or failed to read your Miranda warnings, an attorney may petition the court to dismiss the evidence against you. Even if officers acted legally and the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in arrest, confession, illegal arrest, incriminating statements, miranda warnings, motion to suppress, self incrimination, suppress statements | Leave a comment

CAN YOUR SPOUSE BE FORCED TO TESTIFY AGAINST YOU IN ILLINOIS?

Posted on May 10, 2019 by admin

You’ve seen the movie. The leading man’s girl knows too much about the crime. The solution: Get married! Then, she can’t be forced to testify.

But is that how it works in real life? For the most part, the answer is yes. But there are exceptions.

Under 725 ILCS 5/115-16, spouses may testify against each other but not as to any communications made between them during their marriage. For the marital privilege to apply, the communicating spouse must intend to convey a confidential message made in reliance on the confidence of the marital relationship.

The marital privilege does have limits. The communication must be confidential. It is not confidential if the communication is made before a third party. The third party may testify about what you said even if the third party was eavesdropping. Likewise, the third party may testify about written marital communications that he or she got through interception, loss or mistaken delivery.

Spouses may be compelled to testify against each other when they are involved in a joint criminal enterprise. As such, Bonnie could be forced to testify against Clyde. Your spouse may also testify if he or she acted as your agent.

Naturally, the privilege does not apply if you commit an offense against your spouse, their property or a minor child in either spouse’s care.

If you have been charged with a crime, contact an experienced criminal law attorney immediately. An attorney can review your case for its best possible defense. Is your spouse a witness in your case? Under the right circumstances, an attorney may be able to petition the court to exclude their testimony.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

See People v. Gliniewicz.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

Posted in evidence, marital privilege, spousal privilege, spousal testimony | Leave a comment