Criminal Procedure Rights

Speedy Trial

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In a criminal case, every defendant has both a federal and a state right to a speedy trial.  The federal right to a speedy trial is provided for in the Sixth Amendment of the U.S. Constitution.  The right is also given by Illinois statute 725 ILCS 5/103-5.

Sixth Amendment

The Sixth Amendment of the U.S. Constitution states:  “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”  This right attaches the moment that the defendant is arrested or charged.  It is not necessary that the defendant is aware of the charges against him/her for the right to attach.  When determining whether a defendant’s right to a speedy trial under this Amendment has been violated, the court will consider several factors.  These factors include: the length of the delay; the reason for the delay; whether the defendant has asserted his right; and whether prejudice to the defendant has ensued.  Delays that are caused by defense counsel are attributed to the defendant rather than to the prosecution.  An example of this would be a motion by defense counsel for a continuance.  If the court finds that there has been a violation, the case against the defendant will be dismissed with prejudice.  This means that the case cannot be brought against the defendant in the future.

Illinois Statute (725 ILCS 5/103-5)

A defendant in a criminal case is also given the right to a speedy trial through Illinois law.  If the defendant is in custody, he/she must be tried within 120 days from the date that they were taken into custody, unless the defendant was the one who caused the delay.  This 120-period is for one continuous period of incarceration, meaning that separate periods of incarceration cannot be combined to meet the 120 day period.  If the defendant is out on bail or recognizance, he/she must be tried within 160 days from the date that they demand a trial, unless the defendant was the one who caused the delay.  This demand must be in writing and must include the date of any prior demand that was made while the defendant was in custody.  If the defendant fails to appear at a court date, their right to a speedy trial is waived.  If the defendant is not brought to trial within the specified amount of time, the remedy is that the defendant will be discharged from custody or from his/her bond obligations, and the court will dismiss the charges.  There are, however, a few exceptions to this rule.  First, if the defendant is the one who has caused the delay then the statutory time period is suspended for the length of that delay.  Second, if the prosecution has used due diligence to obtain evidence that is important to the case and there are also reasonable grounds to believe that the evidence may be obtained at some time in the future, then the court may continue the case for an additional 60 days.  Also, this rule does not apply if the court has adjudcated the defendant unfit for trial or if the court has determined that the defendant does not have the physical capacity for trial.

 

Right to Counsel

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A defendant in a criminal case has a right to counsel under the Fifth and Sixth Amendments of the United States Constitution, under Article I Section 8 of the Illinois Constitution and through Illinois state statute (725 ILCS 5/103-3 and 725 ILCS 5/103-4).  The right to counsel is one of the most important rights that a person accused of a crime has.  Justice Schafer of the Illinois Supreme Court said it best:  “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.”

In Gideon v. Wainwright, the right to counsel provided for in the U.S. Constitution was extended to the states through the Due Process Clause of the Fourteenth Amendment.  It was because of this landmark decision that all states must provide counsel to indigent defendants.  Whether a defendant is indigent is based on his/her present financial ability to hire private counsel.

The right to counsel may be waived, as long as that waiver is knowing and voluntary.  Unless the defendant specifically requests an attorney, it is not required that an attorney be present for the waiver itself.  Waiver of counsel is provided for in Illinois Supreme Court Rule 401.

If no attorney is given when one should have been given, the remedy is automatic reversal of the defendant’s conviction.

Sixth Amendment

The Sixth Amendment of the U.S. Constitution states: “In all criminal prosecutions, the accused shall enjoy the right… to have assistance of counsel for his defense.”  The Sixth Amendment right to counsel applies in cases where a sentence of actual imprisonment may be imposed.  The right applies at all critical stages of a case after formal proceedings have begun.  These critical stages include:

  • post-indictment interrogation
  • preliminary hearings to determine probable cause to prosecute; arraignment
  • post-charge lineups (and pre-charge line-ups in Illinois)
  • guilty plea and sentencing
  • felony trials
  • misdemeanor trials when imprisonment or a suspended jail sentence is imposed
  • overnight recesses during trial
  • appeals as a matter of right
  • appeals of guilty pleas and pleas of nolo contendere

Stages where the right is not applicable include:

  • blood samples, handwriting samples, voice samples
  • photo identifications
  • preliminary hearings to determine probable cause to detain
  • brief recesses during defendant’s testimony at trial
  • discretionary appeals
  • parole/probation revocation proceedings
  • post-conviction proceedings

The right to counsel at all critical stages of the case also includes the right to effective counsel.  The general rule is that assistance of counsel is presumed to be effective.  To show ineffective assistance of counsel, the defendant must show deficient performance that was severe that it deprived the defendant of a fair trial.  The defendant must allege specific errors, as the claim cannot be based on mere inexperience or trial tactics.  A defendant may also be deprived of effective counsel if their counsel had a conflict of interest during the defendant’s case.  Joint representation, which happens when an attorney represents co-defendants, is not per se invalid and does not violate the Constitution.  The defendant must show that the joint representation presented an actual conflict that adversely affected the attorney’s performance.  Defense counsel is under an ethical duty to report any potential conflicts of interest to the court and to avoid representations where a conflict of interest would exist.  If the conflict is one between the defendant individually and his attorney, the court will rarely grant the defendant relief.  In this case, the defendant must show that the conflict was so serious that the attorney could not effectively present the defendant’s claims.  If, on the other hand, the conflict is because of a prior or present connection to the prosecution or to an adverse party, the conviction will be reversed and the defendant does not have to show any actual prejudice.

The United States Supreme Court has held that, under the Sixth Amendment, a defendant has a right to proceed pro se, meaning that they can represent themselves, if they have waived their right to counsel.

Fifth Amendment

The Fifth Amendment of the U.S. Constitution provides the defendant with the right against self-incrimination.  It is because of this clause that the right to counsel applies at all custodial interrogations.  If the suspect invokes his/her right to counsel during a custodial interrogation, all questioning must immediately stop, even for questions concerning a different crime, until counsel shows up for the suspect.  This prohibition against questioning lasts the length of the custodial interrogation plus 14 more days after the defendant has returned to his/her normal life.  The purpose of this prohibition on questioning is to stop the police from constantly badgering the suspect after they have ambiguously stated that they want a lawyer.  The request for a lawyer must be unambiguous.  By agreeing to talk, the suspect knowingly and voluntarily waives the right.  If the police continue to question even though they shouldn’t, the remedy is that the prosecution cannot use the defendant’s statements at trial.  However, if the defendant voluntary and intelligently waived his/her right to counsel, the statements may be used to impeach his/her testimony at trial.

In the landmark decision of Miranda v. Arizona, it was decided that police must first inform a suspect of their Miranda warnings once a suspect has been placed under custodial interrogation.  A “custodial interrogation” does not necessarily mean being placed in handcuffs.  Rather, it can occur based on the police officer’s intent and on the suspect’s understanding.  If a reasonable person in the suspect’s shoes would not have felt free to leave, then it is likely that the suspect was under custodial interrogation, and thus that the police officer should have read them their Miranda rights.

 

Preliminary Hearings & Grand Juries

There are three ways that the State can begin a prosecution:  a complaint; information; or an indictment.  Information is an accusation by the State, while an indictment is an accusation by a grand jury.  Regardless of which method is used, the State must charge the defendant in such a way that he/she will be able to understand the nature and the elements of the offense that they are charged with.  To be a valid charging document, the document must be in writing and must state:

  • the name of the offense
  • the statutory provision by number
  • the date and country of the offense
  • the name of the accused
  • the nature and elements of the offense

Two or more offenses may be charged in the same document if they are based on the same act or transaction.  Similarly, two or more defendants may be charged in the same document.

To begin a felony prosecution (an offense which is punishable by a term of imprisonment), the State must initiate the prosecution by either information or an indictment.  A misdemeanor, on the other hand, must be initiated by a complaint.

Either a grand jury proceeding or a preliminary hearing must be held within 30 days of the date that the defendant is taken into custody, unless the delay is caused by the defendant.  If the defendant is out on bail or on recognizance, then it must be held within 60 days of the arrest.

If, at either the preliminary hearing or the grand jury proceeding, probable cause is not found, then an order releasing the accused is granted.  This does not, however, prevent the State from charging them in the future.

Preliminary Hearings

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To determine probable cause to detain:

This hearing is held after arrest but before trial.  The purpose is to determine whether probable cause to detain the suspect exists.  This type of hearing is informal and nonadversarial.  It is also ex parte, meaning that the suspect does not have to be present.  This hearing is not necessary if a determination that probable cause exists has already been made.  If this determination has not yet been made and the suspect is in custody, then the suspect has a right to this hearing to determine if the State has enough probable cause to detain them.

To determine probable cause to prosecute:

Unlike the above, this hearing is adversarial in nature.  Both the prosecutor and the defense may present evidence for the record. Hearsay evidence is admissible and the accused also has the right to counsel.  This hearing may be waived by the accused.

Grand Jury

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A grand jury proceeding is similar to a preliminary hearing in that the purpose is to determine probable cause.  The Fifth Amendment of the U.S. Constitution provides the right to indictment by a grand jury.  Unlike the Sixth Amendment right to counsel seen above, the right to indictment by a grand jury has not been incorporated into the Fourteenth Amendment, which means that it does not apply to the individual states.  Some states have required indictments by a grand jury in their state constitutions, but Illinois is not one of them.  Illinois uses both preliminary hearings and grand juries to determine probable cause to prosecute.

A grand jury in Illinois must consist of 16 people, 12 of which are necessary to constitute a quorum.  The grand jury members determine probable cause to prosecute by returning the bill of indictment.  Grand jury proceedings are unique because they are closed to the public and conducted in secret.  In fact, the suspect does not have any right to be informed that a grand jury is considering an indictment against them.  They have no right to be present at the proceeding and no right to confront witnesses nor to introduce evidence at the proceeding.  Any witnesses subpoenaed before a grand jury have no right to receive Miranda warnings nor to have an attorney present (but they may consult with one outside of the grand jury room).  Grand jury proceedings are also unique because evidence that would not ordinarily be admissible at trial is admissible and may be used as evidence for the indictment.  The prosecutor helps the grand jury by managing the proceeding, bringing forth the witnesses and explaining the law, while no input from the accused is allowed in.

Right to Jury Trial

Jury[2]

The Sixth Amendment of the U.S. Constitution provides defendants with the right to a jury trial.  This right applies to the states through the Fourteenth Amendment.  It is only given for serious offenses.  “Serious” means that a term of imprisonment for more than six months could be imposed.  It is the defendant’s choice as to whether or not to choose a jury trial, and they are often waived.  Waiver of a jury trial must be knowing, intelligent and voluntary.  It can be made by the defendant’s attorney so long as the defendant is present and does not have an objection.  As long as counsel is not using it for tactical advantage, the waiver can be exercised even after a jury has been empanelled and all of the evidence is being heard.  A waiver can be withdrawn and will be granted in the court’s discretion.  Also, pleading guilty acts as a waiver.

Under the Sixth and Fourteenth Amendments of the U.S. Constitution, there must be at least six jurors.  Also, there is no right to a unanimous verdict unless it is a six-person jury.  In Illinois, however, the jury must be composed of 12 people and the verdict must be unanimous.

The defendant has the right to have the pool from which the jury is selected be a representative cross-section of the local community.  However, this right does not apply to the actual jury group that is chosen.

Jury Selection Process

The Illinois Supreme Court Rules give the judge the right to question all of the prospective jurors and to allow each party to question them further, in the court’s discretion.  In selecting the jury, each party is given peremptory challenges.  These challenges may be used for any reason, even if that reason is irrational.  However, the Equal Protection Clause forbids the use of peremptory challenges to exclude jurors if based entirely on their race or gender.  The number of peremptory challenges that each side gets depends on the nature of the case.  For capital cases, each side gets 20 peremptory challenges.  For cases in which the punishment may be imprisonment in the penitentiary, each side gets 10 peremptory challenges.  For all other cases, each side gets five peremptory challenges.  Unlike peremptory challenges, each party gets an unlimited number of challenges for cause.  For this type of challenge, it must be shown that the juror will not be impartial or should be disqualified.

If the issue of race is inextricably tied into the case, then the defendant has the right to question the jurors during voir dire on the issue of racial prejudice.  In noncapital cases, the fact that the defendant and the victim are of a different race is not enough to allow this questioning.  In capital cases, on the other hand, if the crime is interracial, then the prospective jurors may be informed of the victim’s race and may question the prospective jurors about racial prejudice during voir dire.

There are special rules in death penalty cases.  In these cases, the standard is whether a prospective juror’s views on the death penalty would prevent or substantially impair the performance of his duties as a juror in such a way that he/she could not comply with the jury instructions and their oath.

Jury Instructions

Both parties have the right to allow the jury to be given any instruction that relates to their theory of the case and that is supported by the facts.  Each party bears the burden of preparing instructions for the jury, and each attorney does so before the trial begins.  There is a jury instruction conference where both parties meet and then each attorney gives the court the instructions that they wish to be given.  The court chooses from those submissions after hearing arguments from both parties.  The majority of jury instructions will be taken verbatim from the Illinois Pattern Jury Instructions (IPI).  However, non-IPI instructions may be given for unusual scenarios that are not covered in the IPI.

Jury Sequestration

The judge can sequester the jury while it deliberates and during every other period of adjournment during the trial.  In order to do this, the judge only needs to find taht either party will “probably” be prejudiced in the event that the jury is not sequestered.

Jury Verdicts

The general rule is that jury verdicts are final.  It takes the most egregious circumstance to overturn a jury verdict.  The exception to this general rule is a situation where the jury is influenced by an event or a person outside of the jury.  That is because this violates the defendant’s Sixth Amendment right to an impartial jury – the jury is biased and thus the defendant is entitled to a new trial.

Jury verdicts do not have to be logically consistent so long as they are legally consistent.

Polling the Jury

After the verdict is read, counsel may poll the jury.  The purpose of this is to give each juror the opportunity to express their opinion about the verdict freely before the verdict is put on the record.  This ensures that no juror’s vote was the result of force or coercion.  A request to poll the jury must be timely made, otherwise it is waived.

Discovery

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Discovery refers to the disclosure of evidence or documents to one party by the other party.  Illinois Supreme Court Rules 412-415 deal with the discovery rules for felony cases.  The right to discovery only applies after the return of a charging document where the defendant is formally charged with an offense.

Rule 412

This rule deals with the requirements that the prosecutor must comply with in providing the accused with discovery.  In order to obtain discovery, the defense attorney must file a motion requesting it.  There are several pieces of disocvery that the prosecution is required to disclose to the accused.  The prosecution must disclose the witnesses that they are intending to call at trial.  The flow of information between the prosecution and the investigators cannot be discouraged by the prosecution in an effort to avoid providing the defense with the required discovery.  The prosecution must also disclose all statements made by the accused.  This includes statements made to the police, to private citizens or to informants.  Statements or reports made by expert witnesses and the results of scientific or medical tests must also be disclosed by the prosecution, regardless of if they intend to use the material at trial.  If the prosecution intends to call rebuttal witnesses at trial, they must provide the defendant with the names and addresses of those witnesses and a specific statement of their testimony.  Further, the prosecution must inform the defense if there has been any electronic surveillance that the accused was a party to.

There are major consequences that the prosecution must face if they suppress evidence that is favorable to the defendant when that evidence is material to the defendant’s guilt or punishment.  If the prosecution does so, they have violated the defendant’s right to due process, regardless of whether they acted in “bad faith.”  Not only does this violate due process, it is also violates the Illinois Rules of Professional Conduct, which require timely disclosure of any information in its control that tends to negate the guilt or punishment of the defendant.  Under these Rules, this duty on the prosecution is continuing and requires prompt notification.  Even if the individual prosecutor does not have possession of the information and it is difficult to obtain, they must still obtain this information and disclose it, so long as it is in the possession of some arm of the State.  The individual prosecutor is under an active obligation to learn of any favorable evidence that is known to anyone acting on the State’s behalf, which includes the police.

The prosecution also has a duty to preserve evidence if it is expected to be material to an accused’s defense and must protect the integrity of that evidence.  They also must disclose any deals or promises of leniency, even those that are informal, that they have with their witnesses.  This information is relevant to the defendant’s case because it tends to show that the prosecution’s witnesses may be biased.

This rule has a “catch-all” provision.  This provision allows disclosure of items that are not covered elsewhere by this rule, subject to the court’s discretion.  Even if allowed under this Rule, the court may deny disclosures if the risks of disclosure outweigh the benefits.  If this is the case, the court must find that there is a “substantial risk of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment.”

The prosecution is under a duty to apply with a discovery motion made by the defendant “as soon as practicable.”  Parties have the ability to make their own arrangements for discovery.

There are peices of information that are not subject to disclosure.  One of these is known as “work product.”  Work product is legal reserach, reports, records, correspondence, etc. that contain the opinions, theories or conclusions by the attorney of of the attorney’s staff.  This information is privileged and is not subject to disclosure.  Also, the prosecution does not have to disclose the identity of an informant if that identity is a secret, unless the defendant’s constitutional rights would be violated.  However, this “informant privilege” is not aboslute.  It is limited by the requirements of fairness.  If the informant is directly involved in the transaction, then disclosure will usually be required.  Also, this privilege cannot be used in order to not have to disclose the identity of witnesses who will be called at trial.

Rule 413

Unlike Rule 412, which deals with what the prosecution must disclose to the defendant, Rule 413 deals with the information that the defense must disclose to the prosecution.  Defense counsel must disclose to the prosecution any reports, results or testimony about any physical or mental examinations or of scientific tests, experiments or comparisons, or any other reports or statements made by experts.  However, there are some limitations.  Reports made by nontestifying experts do not need to be disclosed because they are protected under the “work product” doctrine discussed above.  The defense also does not need to provide the prosecution with any incriminating information that would violate the defendant’s right against self-incrimination under the Fifth Amendment.

The defense must also give the prosecution notice of any intended defenses.  These defenses can be listed alternatively and do not need to be consistent.  The defense must also give the prosecution a list of witnesses and their statements.  They must also disclose any documents or objects that they intend to use as evidence.  These disclosures are within the limited discretion of the judge.

If requested by the prosecution, the defendant must:

  • appear in a line-up
  • give a voice sample
  • be fingerprinted
  • be photographed
  • try on articles of clothing
  • give specimens of material underneath fingernails
  • give samples of blood, hair or other bodily materials
  • give handwriting samples
  • submit to a reasonable physical or medical inspection

Rule 414

The court can order the depositions of witnesses if it is likely that their testimony will be unavailable at the time of a hearing or at trial.

Rule 415

This rule deals with the regulation of discovery.  An attorney has the right to try to talk to a witness to determine what that witness’s testimony will be.  However, they cannot counsel any person, except the accused, to refrain from talking about the case or from producing relevant information.  Both parties are under a continuing obligation to disclose any additional information that is relevant and also to correct any erroneous information as the case continues.

The court may issue protective orders that temporarily bar or limit disclosure on a showing of cause.  However, the court cannot limit a party’s right to receive all information for which they party is entitled.  The court also has the ability to issue sanctions for vioations of these discovery rules.  They may also order information to be disclosed or to be excluded, may grant a recess or a continuance, and may even dismiss cases in extreme situations.

Misdemeanors

As previously mentioned, the above rules only apply to felonies.  For misdemeanors, the discovery that the prosecution must disclose to the accused is more limited.  The prosecution must disclose to the defense a list of their witnesses, any confessions made by the defendant and any evidence which negates the defendant’s guilt.  The prosecution cannot compel the defendant to submit to an examination and the court has no inherent authority to grant that discovery to the prosecution because the State does not have a statutory right to discovery in misdemeanor cases.

 

Affirmative Defenses

The right of an accused to present a defense is provided for in the U.S. Constitution and is a matter of due process.  The Illinois Supreme Court requires that the defendant inform the prosecution of any defenses that he/she intends to assert at trial.  All affirmative defenses must be pled in the defendant’s first answer to discovery.  If the defense does not disclose an affirmative defense that they intend to use, then they may be precluded from presenting that defense at trial.  The burden of proof for any affirmative defense starts with the defendant.  The defendant must produce “some” evidence of the affirmative defenses.  Once that has been done, the burden of proof shifts to the prosecution.  The prosecution must then disprove that affirmative defense beyond a reasonable doubt.

Insanity

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The defense of insanity is provided for in 720 ILCS 5/6-2.  It gives the legal standard for insanity:  “A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity to appreciate the criminality of his conduct.”  In this context, “insanity” is a legal term rather than a psychiatric term.

The starting point for insanity is that all defendants in criminal cases are presumed sane.  The issue of insanity is not raised until the defendant comes forward with some evidence tending to show his/her insanity under the above legal standard.  This defense is neither very popular nor very successful in Illinois.

It is the defendant’s mental state at the time that the offense was committed that matters.  Evidence of sociopathic or psychopathic personality disorder will not provide a sufficient basis for finding insanity.  The defense can prove insanity through an expert witness or through lay testimony of a witness.

If the defense intends to use the defense of insanity, they will usually have their own mental health experts examine the defendant.  If the expert finds insanity, the prosecution can then have the defendant examined by their own expert.  (See 725 ILCS 5/115-6).  If, on the other hand, the defense does not raise the issue of insanity and does not put his/her mental state in issue, the defendant may refuse to participate in a court-ordered psychiatric examination.

If this defense is successful, then the defendant will be committed to a mental institution until he/she is cured.  This confinement to a mental institution may last until the defendant has regained sanity or is no longer dangerous.  Even if the confinement lasts for a longer period than the maximum period of incarceration that could be imposed by the offense, there is no due process violation.

There are a couple of other times that insanity is relevant.  First, it is relevant to determine competency to stand trial.  The Due Process Clause of the U.S. Constitution states that a defendant may not be tried, convicted, or sentenced if, as a result of mental disease or defect, he/she is unable (i) to understand the nature of the proceedings being brought against him/her; or (ii) to assist his/her lawyer in the preparation of his/her defense.  Second, the issue of insanity is relevant to determine competency at the time of execution.  A defendant may not be executed if he/she is incapable of understanding the nature and purpose of the punishment.

It is possible for the defendant to be found “guilty but mentally ill” rather than insane.  In this case, the defendant is not necessarily relieved of criminal responsibility.

Intoxication

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This defense is provided for in 720 ILCS 5/6-3.  Intoxication is very rarely used as a defense because the vast majority of intoxication is voluntary.  To use the intoxication defense successfully, the intoxication must have been involuntary and must have “deprived him/her of substantial capacity either to appreciate the criminality of his/her conduct or to conform his/her conduct to the requirements of law.”

Infancy

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The defense of infancy is given in 720 ILCS 5/6-1.  It states that no person younger than 13 may be convicted of an offense.  However, a person younger than 13 may be adjudicated a delinquent.

Self-Defense

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This defense is provided for in 720 ILCS 5/7-1.  This defense is used in situations where the defendant admits that he/she committed the offense that is charged, but they claim that the force they used was necessary in order to repel an attack.  Self-defense is commonly pled and is often successful.  The defendant’s own subjective belief that he/she was in danger is enough to put the issue of self-defense before the trier of fact.

In Illinois, the defendant does not have a duty to retreat when being threatened with force.  Rather, they can stand their ground and respond with a reasonable use of force.

To successfully pled self-defense, the following elements must be proven:

  • force is threatened against the defendant
  • the defendant is not the aggressor
  • the danger of harm is imminent
  • the threatened force is unlawful
  • the defendant actually believes:
    • a danger exists
    • the use of force is necessary to avert the danger
    • the kind and amount of force used is necessary
  • the defendant’s beliefs are reasonable

“Deadly force” means force used that is likely to cause death or serious bodily injury.  Deadly force may only be used in situations where the defendant has a reasonable belief that deadly force is necessary to prevent imminent death or great bodily harm, or to prevent the commission of a forcible felony.

Because self-defense involves the defendant’s own belief, the defendant’s state of mind is admissible.  This can include prior incidents with the victim, threats or evidence which tends to show that the defendant had a particular reason to fear the victim.  Further, the victim’s own propensity for violence is admissible, even if the defendant did not know about that victim’s propensity for violence when they reacted.

Self-defense is not available to a defendant who is attemping to commit or has committed a forcible felony.  It is also not available if the defendant initially provokes the use of force against himself/herself, with the intention of using that force as an excuse to hurt the victim.  The defendant cannot be the initial aggressor, unless (i) the force used against him/her is so great that he/she reasonably believes that they are in imminent danger of death or serious bodily harm, and he/she has tried every other means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the victim; or (ii) in good faith, withdraws from physical contact with the victim and indicates to them that he/she desires to withdraw and terminate the use of force, but the victim continues or resumes the use of force.  (See 720 ILCS 5/7-4).

Defense of a Dwelling

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A person’s home is his/her “castle,” and, as such, it can legally be defended against an illegal entry or attack.  If the intruder’s purpose is to do violence to you, then you can resist with force.  However, you cannot just automatically resort to violence.  For example, if a person walks into your home uninvited and refuses to leave upon request, you cannot respond with force.

This defense is given in 720 ILCS 5/7-2.  It states:  “A person is justified in the use of force against another when and to the extent that he/she reasonably believes that such conduct is necessary to prevent or terminate such other’s unlawful entry into or attack upon a dwelling.”

Deadly force may only be used if (i) entry is made or attempted in a violent, riotous or tumultuous manner, and he/she reasonably believes that such force is necessary to prevent an assault upon, or threat of personal violence to, him/her or another in the dwelling; or (ii) the defendant reasonably believes that such force is necessary to prevent the commission of a felony in the dwelling.

Defense of Other Property

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Unlike the defense of a dwelling provided for above, this defense deals with someone unlawfully interfering with either real property other than a dwelling or with personal property.  The statute for this defense is found in 720 ILCS 5/7-3 and states:  “A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s trespass on or other tortious or criminal interference with either real property (other than a dwelling) or personal property, lawfully in his possession or in the possession of another who is a member of his immediate family or household or of a person whose property he has a legal duty to protect.”

Deadly force may only be used if he/she reasonably believes that such force is necessary to prevent the commission of a forcible felony.

Use of Force to Effectuate Arrest

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Illinois has two statutes concerning making arrests.  720 ILCS 5/7-6 says that a private person who is directed by law enforcement to assist in making an arrest that turns out to be unlawful is justified in using any force that he/she would be justified in using had the arrest been lawful, unless he/she knows that the arrest is unlawful.  Further, deadly force may be used only if he/she reasonably believes that deadly force is necessary to prevent death or great bodily harm to himself or another.

If the defendant is being arrested by a person who is known to be a police officer, the defendant may not use force to resist the arrest, even if the arrest turns out to be unlawful.  This is the rule followed by only a minority of states, including Illinois.  (See 720 ILCS 5/7-7).

Compulsion

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The defense of compulsion is provided for in 720 ILCS 5/7-11.  This is a situation where the defendant reasonably believes that death or serious bodily injury will be inflicted on him/her or upon his/her spouse or child if he/she does not perform that conduct.  This defense may only be used for offenses which are not punishable by death.  Thus, this defense cannot be used if the defendant is being charged with murder.

If this defense is successful, the defendant’s conduct is not justified, but it is excused.  This defense is similar to that of necessity (see below), but unlike necessity, compulsion always involves a human threat.

Compulsion is not an available defense if the defendant had the opportunity to withdraw prior the commission or completion of the offense.

Entrapment

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The defense of entrapment is used if the defendant’s conduct was induced by the police or by an agent of the police.  It is provided for in 720 ILCS 5/7-12.

This defense is often unsuccessful, usually because it cannot be raised if the defendant was predisposed to commit the crime and the police merely afforded the person the opportunity to commit the crime.  Further, a defendant cannot be entrapped by a private citizen.

This defense is usually raised in cases involving drugs or government corruption.

Necessity

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The defense of necessity is provided for in 720 ILCS 5/7-13.  This statute states that a defendant’s conduct is justifiable if the defendant reasonably believed that the conduct was necessary to avoid some harm to society that would exceed the harm caused by the conduct.  The test here is objective – defendant’s subjective, good faith belief in the necessity of their conduct is insufficient.

Causing the death of another person is never justified.  This defense also may not be used if the defendant was the one at fault in creating the situation, or if there was an alternative to the criminal behavior.  The defendant must convince the trier of fact that the potential harm was imminent and that there was nothing else that he/she could have done.

The defense of necessity overlaps with the defense of compulsion.  The two are often pled together.