Representation of a Wide Multitude of Criminal Charges

Wigell Criminal Defense prides itself on its Holistic Winning Defense Strategies. The firm has represented many clients in a wide variety of criminal charges in the State of Illinois. Wigell Criminal Defense zealously represents their clients. We Win Criminal Defense Cases Other Lawyers Said Were Impossible To Win.

Wigell Criminal Defense (as of 11/2/17) represents clients charged in the State of Illinois of the following crimes/charges:

1. Sex Crimes
2. White Collar Crimes
3. Drug Crimes
4. Violent Crimes
5. Weapons Crimes
6. Property Crimes
7. Other Crimes

1. Sex Crimes

Aggravated Criminal Sexual Assault (720 ILCS 5/12-14)
Attempt Aggravated Criminal Sexual Assault (720 ILCS 5/8-4(11-1.30)
Aggravated Criminal Sexual Abuse (720 ILCS 5/12-16)
Aggravated Criminal Sexual Abuse (Juvenile) (720 ILCS 5/12-16)
Criminal Sexual Abuse (720 ILCS 5/11-1.50)
Attempt Aggravated Criminal Sexual Abuse of a Family Member under 18 (720 ILCS 5/11-1.60 (b))
Criminal Sexual Assault (720 ILCS 5/11-1.20)
Predatory Criminal Sexual Assault (720 ILCS 5/12-14.1)
Sexual Exploitation of a Child (720 ILCS 5/11-9.1)
Possession of Child Pornography (720 ILCS 5/11-20.1)
Aggravated Possession of Child Pornography (720 ILCS 5/11-20.1)
Dissemination of Child Pornography (720 ILCS 5/11-20.1)
Traveling to Meet a Minor (720 ILCS 5/11-26)
Public Indecency (720 ILCS 5/11-9)
Obscenity (720 ILCS 5/11-20)
Indecent Solicitation of a Child (720 ILCS 5/11-6(a))
Grooming (720 ILCS 5/11-25)
Solicitation to Meet a Child (720 ILCS 5/11-6.6(a))
Sex Trafficking (720 ILCS 5/10-9)

2. White Collar Crimes

Continuing Financial Crimes Enterprise (720 ILCS 5/17-10.6(h))
Financial Institution Fraud (720 ILCS 5/17-10.6(c))
RICO (720 ILCS 5/33G)
Theft (720 ILCS 5/16-1)
Forgery (720 ILCS 5/17-3)
Identity Theft (720 ILCS 5/16-30)
Deceptive Practices (720 ILCS 5/17-1)
Mail Fraud & Wire Fraud (720 ILCS 5/17-24)
Computer Fraud (720 ILCS 5/17-50)
Internet Offenses (720 ILCS 5/16-40)

3. Drug Crimes

Drug Trafficking (720 ILCS 570/401.1)
Cannabis Trafficking (720 ILCS 550/5.1)
Unlawful Possession of Cannabis with Intent to Deliver (720 ILCS 550/5(g))
Manufacture or Delivery of Cannabis (720 ILCS 550/5(d))
Unlawful Possession of Cannabis (720 ILCS 550/4(g))
Manufacture and Delivery of Cocaine (720 ILCS 570/401(a)(2))C))
Possession of Cocaine (720 ILCS 570/402(a)(2)(C))
DUI (625 ILCS 5/11-501(A))
Aggravated DUI (625 ILCS 5/11-501(D))

4. Violent Crimes

First Degree Murder (720 ILCS 5/9-1)
Attempted First Degree Murder (720 ILCS 5/8-4(a))
RICO (720 ILCS 5/33G)
Armed Robbery (720 ILCS 5/18-2)
Attempt Armed Robbery (720 ILCS 8/4 (18-2(a)(2))
Aggravated Robbery (720 ILCS 5/18-1)
Home Invasion (720 ILCS 5/19-6)
Aggravated Kidnapping (720 ILCS 5/10-2)
Aggravated Battery (720 ILCS 5/12-3.05)
Aggravated Domestic Battery (720 ILCS 5/12-3.3)
Battery (720 ILCS 5/12-3)
Aggravated Assault (720 ILCS 5/12-2)
Unlawful Restraint (720 ILCS 5/10-3)
Aggravated Unlawful Restraint (720 ILCS 5/10-3.1 (A))

5. Weapons Crimes

Armed Violence (720 ILCS 5/33A-2(a))
Unlawful Use of a Weapon (720 ILCS 5/24-1)
Aggravated Unlawful Use of a Weapon (720 ILCS 5/24-1.6)
Unlawful Use or Possession of a Weapon by a Felon (720 ILCS 5/24-1.1)
Aggravated Discharge of a Firearm (720 ILCS 24/1.2(a)(2))
Defacing the Identification Marks of a Firearm (720 ILCS 5/24-5(b))

6. Property Crimes

Residential Burglary (720 ILCS 5/19-3)
Retail Theft (720 ILCS 5/16-25)
Possession of a Stolen Motor Vehicle (625 ILCS 5/4-103)
Felony Driving on a Suspended/Revoked License (625 5/6-303(a)/(d))
Obstruction of Justice (720 ILCS 5/31-4)

7. Other Crimes

Concealing or Aiding a Fugitive (720 ILCS 5/31-5(a))
Violation of Bail Bond (720 ILCS 5/32-10)
Violation of Probation (730 ILCS 5/5-6-4)
Violation of Mandatory Supervised Release (730 ILCS 5/3-3-9)

Truth in Sentencing: Receiving Credit for Time Served Outside of Jail-EHM v. Pretrial Services

When an individual is charged with a crime and awaiting trial, they are subject to pretrial detention. While most people perceive the notion of pretrial detention as being in custody at the county jail, there are other forms of pretrial detention that don’t require an individual to necessarily be incarcerated.

While someone is in custody in jail awaiting disposition of their case, they receive credit for time served in jail for any sentence of prison time imposed by a plea of guilty or finding of guilty. (Ex. A person who serves one year in jail would have that time subtracted from a prison sentence of 2 years thus leaving 1 year).  The calculation should be made from the day of the individual’s arrest to the day of the disposition of their case.  All individuals in custody of Cook County Jail are eligible for time served credit with a few exceptions ranging from committing a crime while in custody to receiving a natural life sentence.

However, time served can be extended to another form of pretrial detention outside of Cook County Jail. Another form of pretrial detention where an individual could receive credit for time served is known as EHM (Electronic Home Monitoring).  EHM is sometimes known to the general public as “House Arrest” or “Home Confinement.” This form of pretrial detention requires an individual to wear an ankle bracelet that monitors their movements.  Typically, the individual is confined to their home for the duration of their case. In some instances, the individual is allowed movement outside of the home for limited purposes including going to work, church, doctor’s appointments, ect. This form of pretrial detention is typically governed under the control of the Sheriff’s Department.  Being under the supervision of the Sheriff’s Department considers the individual to be “in custody” for the purposes of time served.

This form for pretrial detention should not be confused with GPS monitoring through pretrial services. GPS monitoring requires an individual to wear a GPS monitor on their ankle.  The purpose of the GPS monitor allows pretrial to monitor the individual’s movements.  A GPS is typically fitted to keep an individual away from a specific person or place that is the subject of the charged offense.  The individual however would not be eligible for time served in this situation.  Since the GPS monitor is governed by pretrial services, a person is not considered to be “in custody” for these purposes.  Since an individual on a GPS is free from any actual detention and their freedom is not “restricted” under the supervision of pretrial services, they are not considered in custody for the purposes of time served.

However, it should be noted that being on EHM does not necessarily guarantee an individual will receive credit for time served. There are exceptions that disqualify an individual from receiving credit for time served on EHM.  The main exception to the specific offense the individual is on EHM for.  If an offense falls under 730 ILCS 5/5-5-3, then the offense would not qualify for time served credit under EHM.  For example, a person on EHM for a pending charge of Criminal Sexual Assault would NOT be eligible for sentencing credit due to the nature of the offense enumerated under 730 ILCS 5/5-5-3.

When someone is on EHM while awaiting trial, they should consult with their experienced criminal defense attorney regarding the issue of time served. This is an important aspect that should be analyzed when evaluating the issue of time served when an individual is considering entering a plea of guilty or evaluating the amount of time a person is facing if they lose at trial.  This analysis is critical when determining the course of action to take in that individual’s case and should be conducted in a meticulous and detailed manner.

Truth in Sentencing: Ways to Reduce Prison Sentences

When an individual has been either convicted of a crime or pleads guilty to a crime and receives a sentence of prison time, the sentence imposed does not necessarily mean that the individual will do the entirety of the imposed sentence. When someone is sentenced to a term of imprisonment, that individual may have options and opportunities to have their sentence reduced while in IDOC (Illinois Department of Corrections).

There are three typical methods than an individual can receive sentencing credit to ultimately have their sentences reduced while serving time in IDOC. The three ways inmates can receive additional sentencing credit at IDOC is through statutory sentencing credit, program sentence credit and supplemental sentence credit.  The opportunities for credit are as follows:

Statutory Sentencing Credit: Statutory sentencing credit is credit that is awarded for most types of offenses pursuant to Illinois sentencing Statute.  For example, some felony offenses offer day for day credit which basically means a person will serve only 50% of their sentence if they do not have any behavioral or disciplinary issues while incarcerated in IDOC.  Other sentences require an individual to serve 75%, 85% or even 100% of their sentence based on good behavior.

Program Sentencing Credit: Program sentencing credit is credit an individual can accrue while serving time in IDOC.  Specifically, an individual can obtain additional credit towards their sentence by participating in classes and programs offered by IDOC.  These classes can range from cooking classes, GED classes to trade classes.  There are also eligibility requirements to qualify for receiving additional sentencing credit from these classes which are classified into three levels:

  • Certain offenders are eligible to have 0.5 days of credit per day of classes taken (Ex. 30 days of class =15 days of sentencing credit).
  • Other offenders can be eligible for 0.25 days of credit if they don’t meet the requirements of the 0.5 days of credit (Ex. 28 days of class = 7 days of sentencing credit).
  • Then certain offenders are ineligible to receive credit for participating in classes but are usually not prohibited from taking the classes.

Eligibility criteria is usually based upon the individual’s disciplinary history and the nature of the offense for which they were either convicted of or plead guilty to. If the individual has a history of disciplinary issues, then they may be disqualified from receiving sentencing credit.  If an individual has been convicted of a specific offense, for example first degree murder, then they would not be eligible for any program credit.

Supplemental Sentence Credit: Supplemental Sentence Credit is sentencing credit that an individual could receive at the end of their sentence.  This credit is not mandatory and it is at the discretion of IDOC to award this credit to an offender.  An individual could be eligible for either 90 days or 180 days off their sentence.  The amount of days awarded are based upon the nature of the offense the individual is serving time for.  For example, a sentence for Aggravated Criminal Sexual Assault only allows an individual a possible 90 days credit at the end of their sentence due to the nature of the offense.  While most offenses are eligible for the supplemental sentence credit, certain offenses may not be eligible such as convictions for first degree murder and domestic terrorism.  An offender must have at least served a minimum time of 60 days or as close to 60 days the sentence would allow to be eligible for the credit.

When an individual is imprisoned in IDOC, they should make every attempt to utilize all the opportunities available to reduce their prison sentence. This also gives the individual not only the opportunity for an early release to get back to their loved ones sooner, but it also allows the opportunity for an individual to better themselves in prison.  It gives them the opportunity to learn new skills and trades that could be beneficial when re-entering society after release.  After the individual is assigned to a prison in IDOC, they should immediately consult with their assigned counselor to determine their eligibility and opportunities for additional sentencing credit.

Truth in Sentencing: Consecutive vs. Concurrent Sentencing

In Illinois, when someone is either convicted or pleads guilty to a crime, they are subject to the sentencing parameters of that specific crime. When someone is either convicted or pleads guilty, their attorney should make them the aware of the possible sentences and penalties of their specific charge.  One concept an individual should be made aware of in regards to sentencing is the concept of consecutive versus concurrent sentencing.  When someone is charged with more than one offense or has multiple counts of the same offense, an analysis must be made whether those sentences would run consecutively or concurrently.

Section 730 ILCS 5/5-8-4 in the Illinois Unified Code of Corrections outline all of the offenses in Illinois as to what sentences run consecutive and concurrent. Consecutive and Concurrent are defined as follows:

CONCURRENT sentencing is when someone is convicted of either multiple offenses or counts, that the sentences imposed on each separate charge or count would run AT THE SAME TIME. For example, if someone is convicted of Armed Robbery and Aggravated Kidnapping and receives a sentence for six years on each offense, those sentences would run AT THE SAME TIME.  This concept also applies to a person serving a term for a felony and misdemeanor offense at the same time, as well as if the individual is already imprisoned in Illinois or another jurisdiction for another offense unless the offense is consecutive under Illinois law.

CONSECUTIVE sentencing is when someone is convicted of either multiple offenses or counts, that the sentences imposed on each separate charge or count would run one after another. For Example, if an individual is convicted on five counts of Predatory Criminal Sexual Assault and received a sentence for 6 years on each count, those sentences would run one after another thus resulting in the individual serving 30 years in The Illinois Department of Corrections.

Most of the time, consecutive sentencing is mandated by statute and the Judge cannot deviate from mandatory consecutive sentencing. There is also a concept known as permissive consecutive sentencing.  The court has discretion impose permissive consecutive sentencing under limited circumstances.  Those limited circumstances are as follows:

(c) Consecutive terms; permissive. The court may impose consecutive sentences in any of the   following circumstances:

(1) If, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is the opinion of the court that consecutive sentences are required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.

(2) If one of the offenses for which a defendant was convicted was a violation of Section 32-5.2 (aggravated false personation of a peace officer) of the Criminal Code of 1961 (720 ILCS 5/32-5.2) or a violation of subdivision (b)(5) or (b)(6) of Section 17-2 of the Criminal Code of 1961 or the Criminal Code of 2012 (720 ILCS 5/17-2) and the offense was committed in attempting or committing a forcible felony.

Sentencing is a very complex legal concept. An individual and their attorney must be aware of all sentencing concepts and parameters in their case.  Because the knowledge of consecutive and concurrent sentencing is imperative to how to approach a criminal case.  Not having the knowledge of consecutive and concurrent sentencing concepts can have devastating results upon a client’s case.  Wigell Criminal Defense has handled many cases involving consecutive and concurrent sentencing for over 40 years.  Please don’t hesitate to contact us regarding your case.  We are here to help.

 

My Loved One’s Bail is Too High; Can It Be Reduced?

In many criminal cases, and certainly with regard to felony cases, a judge will set a bond. In Illinois, ten percent of the stated bond amount must be posted in order for a person to be released from custody. That is, if the judge orders a person held on a $500,000 D-bond (where the D stands for “deposit”), that means that the person must post $50,000 or remain in jail awaiting trial.

 

For many people, $50,000 is a significant amount of money that cannot be obtained easily or quickly. For some people, $5,000 is a significant amount of money to gather in a short period of time. And for some, $500 is a significant amount of money to come up with. Money is relative, and it all depends on the individual defendant and his or her support group that is marshaling the resources to get these funds together for the purpose of bond.

 

If your loved one is in custody on a bond that is too high for you to post on their behalf, it is important to contact an experienced criminal defense attorney to do what is called a Motion to Reduce Bond, or a Motion for Bond Reduction.

 

725 ILCS 5/110-6 states in part, “Upon verified application by the State or the defendant or on its own motion, the Court before which the proceeding is pending may increase or reduce the amount of bail or may alter the conditions of bail bond or grant bail where it has been previously revoked or denied.”

 

What this means is that bond, once set, is not written in stone. The State may do a motion (that is, make a request) for the bond to be increased or decreased. It is extremely rare for the State to ask for bond to be decreased; they almost always ask for a bond increase. The Judge may examine the bond and increase or decrease it on his or her own motion. The Defendant may also ask for the bond to be increased or decreased – although it would be very rare for a defendant to ask that it be increased, as most defendants in custody are eager to be released.

 

An experienced criminal defense attorney will make a proper request for the bond to be reduced in a case where it is set too high for the person to be able to post. A proper Motion to Reduce Bond requires a detailed mitigation intake, either with the defendant himself or, if that is not feasible, with a family member or friend that knows the defendant, and is aware of important information about his or her life. Common factors in mitigation, which are used for the Motion to Reduce Bond, include things like education, work history, family, and other community involvement.

 

Another way to make a strong argument to reduce bond is to make the Court aware of new information that was not made available to the Court during the first bond hearing, when the bond was initially set.

 

The Motion to Reduce Bond should be written in the proper format and timely filed with the court, allowing for three days’ notice to the State before it can be heard by the Judge. The Judge will typically hear arguments, from both the Defendant and the State, and then make a decision as to whether or not bond should be decreased, or kept the same.

 

It is very unusual to get the bond reduced by more than half of the initial bond amount. That is, if the bond was originally set at $50,000, it would be very unlikely to get it reduced to less than $25,000.

 

If a Motion to Reduce Bond has been heard and denied, that does not mean that it cannot be done again. A second Motion to Reduce Bond can be drafted, filed, and heard. However, with each successive Motion to Reduce Bond, its likelihood of success becomes less and less. What is most helpful to additional motions to reduce bond is new information, or a change in the defendant’s circumstances.

 

So if your loved one is in custody and the bond is too high for him or her to afford, do not lose hope. Hire an experienced criminal defense attorney and request that they file a Motion to Reduce Bond to try to convince the judge to reduce the amount that must be posted.

New Law Regarding How Persons Pleading Guilty Are Admonished, Effective January 1, 2017.

Last week, Illinois’ Governor signed into law a change in how persons pleading guilty to criminal offenses are admonished. Public Act 82-553 amends 725 ILCS 5/113-4 to require that the court must admonish a defendant pleading guilty to many of the collateral consequences attendant to that plea.

The new law states that “(i)f the defendant pleads guilty such plea shall not be accepted until the court shall have fully explained to the defendant the following: (1) the maximum and minimum penalty provided by law for the offense which may be imposed by the court; (2) as a consequence of a conviction or a plea of guilty, the sentence for any future conviction may be increased or there may be a higher possibility of the imposition of consecutive sentences; (3) as a consequence of a conviction or a plea of guilty, there may be registration requirements that restrict where the defendant may work, live or be present; and (4) as a consequence of a conviction or a plea of guilty, there may be an impact upon the defendant’s ability to, among others (A) retain or obtain housing in the public or private market; (B) retain or obtain employment; and (c) retain or obtain a firearm, an occupational license, or a driver’s license.”

Public Act 82-553 is effective January 1, 2017 and will help eliminate future surprises for those who plea guilty to an Illinois criminal offense.

How Does a Judge Decide My Loved One’s Bail Amount?

When someone is arrested for a crime, and a bond amount is not set at a police station, the person will appear in court within approximately 48 hours so that a judge may set bond. 48 hours is rather soon after an arrest, and for this reason many people are not able to secure a private attorney for their loved one; in these cases, a public defender appears on behalf of the defendant and represents them at what is called a bond hearing.

 

A bond hearing is a hearing for the purpose of setting a bond. At a bond hearing, the defendant appears before the bond judge for the first time. The prosecution, represented by an assistant state’s attorney, informs the judge of the charges the defendant is facing, and the factual basis for those charges. The factual basis is, in most cases, read directly from police reports.

 

For example, a prosecutor would tell the judge that a defendant was being charged with Aggravated Criminal Sexual Assault, and then read aloud a police report in which an officer describes interviewing an adult woman who told the officer that the defendant introduced himself to her at a gas station, lured her into the alley under the pretense of helping him with something, and then raped her. Aggravated Criminal Sexual Assault is the name of the criminal offense; the content’s of the report is the factual basis supporting the charge. The prosecution may ask that no bond be granted, or it may ask for a specific number in relation to a bond, or it may ask for a high bond in more general terms.

 

It is important to note that the factual basis presented at the bond hearing is presented only for the purposes of the bond hearing. It is preliminary information based on preliminary investigation. For example, if the prosecutor at the bond hearing states that the defendant was wearing a red baseball cap, but further investigation reveals surveillance footage that shows the defendant was wearing a blue baseball cap, that does not affect the bond hearing, the case, or the defendant’s constitutional rights, in most situations.

 

The prosecutor also reads aloud the criminal background of the defendant, including convictions for felonies and misdemeanors, as well as all arrests, even if they did not result in a conviction. Important factors for the prosecution to present to the court are the nature of the crime, any criminal background, any previous bond forfeitures (where a person does not show up for court), any bond forfeiture warrants or other warrants, and whether or not the defendant is a danger to the public.

 

The defense attorney then presents to the judge factors in mitigation. A bond hearing is not the appropriate time for the defense attorney to present theories of defense. That is, after the prosecution presents the factual basis and asks for a bond amount, the defense attorney is restrained from telling the judge that the defendant has an alibi, and that at the time that he was accused of being at the gas station, he was actually watching The Price is Right with his grandmother. Theories of defense are not to be presented at bond hearings.

 

Rather, the defense attorney is to focus on 725 ILCS 5/110-5(a), which focuses on mitigating factors that can be considered for the purpose of setting a bond. At a bond hearing, the defense attorney should first do a detailed mitigation intake with either the defendant or a friend or family member of the defendant who knows information about the defendant’s life.

 

The judge is primarily focused on information that tells him whether or not the defendant is a flight risk, what ties to the community the defendant has, and what his or her criminal background is. A defense attorney should be able to discuss all of this and more, including whether or not the defendant is a citizen of the United States, how old the defendant is, if he is married or single, if he has children and if so their general ages, if he works, and if so where and how long he has held that job, his general employment history for the purposes of showing consistent and steady work, his highest level of education, which and how many of his family members live in the general area of the jurisdiction for the purpose of showing a support system that will assure the defendant’s presence in court, any health concerns the defendant may have, any medication the defendant is on, any history of drug abuse or mental health concerns, and more.

 

It is important that a criminal defendant have a criminal defense attorney that is willing to do a detailed intake with the defendant in order to gather all of this information, and present it properly to the judge.

 

The judge will then know all about the charges and the nature of the offense from the prosecution, and all about the defendant’s life and history from the defense attorney, and thus be in a position to make an informed decision regarding the bond.

 

Illinois is a ten percent state, so that means that when the judge sets a D-bond, or a deposit bond, the person needs to have 10% of that amount posted in order to be released from custody. If the judge orders an I-bond, the person needs to only sign a piece of paper promising to appear in court on all court dates. Under rare circumstances, a judge will order a C-bond, or a cash bond, which means that 100% of the stated bond amount needs to be posted.

 

The following is an example of different bonds and how much must be posted:

 

$15,000 I-Bond = requires $0 to be posted

$15,000 D-Bond = requires $1,500 to be posted

$15,000 C-bond = requires $15,000 to be posted.

 

Illinois also allows for property to be posted instead of currency, but the value of the property must be twice the amount of the bond set. That is, in order to post property on a $15,000 D-bond, the property would need to be worth $3,000, which is 2×1500. In order to post property on a $15,000 C-bond, however, the property would need to be worth $30,000.

 

This post applies to Illinois state cases, not federal cases. Federal bond hearings, known as detention hearings, are quite different from state bond hearings, and will be explained further in an upcoming post.

 

Illinois state bond hearings and bond considerations are complex and nuanced, and can affect the criminal case in many different ways. It is important to hire an experienced criminal defense attorney to help you and your loved one navigate these concerns.

My Case Is Taking Too Long; Should I Do a Speedy Trial Demand?

A speedy trial demand is an important constitutional right afforded to all criminal defendants. The exercise of this right, however, is very serious and complex, and one should not go about this alone but should instead consult with – and follow the recommendation of – an experienced criminal defense attorney.

 

Speedy trial demands are governed by 725 ILCS 5/103-5. Every person in custody in Illinois shall proceed to trial within 120 days of filing the speedy trial demand. The 120-day term must be one continuous period of incarceration. For a person who is out on bond, they must proceed to trial within 160 days of filing a speedy trial demand. The legislature’s rationale with this difference in the number of days is that people who are in custody should be brought to trial sooner because they are incarcerated, while people out on bond are at least able to live a semblance of their normal lives and will not be greatly prejudiced by an extra 40 days on their speedy trial demand.

 

It is generally not a good idea to file a demand early in the criminal case. It is generally not a good idea to file a speedy trial demand before your attorney has received all of the discovery. It is generally not a good idea to demand that your attorney file the speedy trial demand, when he or she recommends that it not be filed.

 

All of these warnings are to reinforce the idea that the speedy trial demand is a powerful and complex strategy with significant ramifications. An experienced criminal defense attorney understands the nuances and the ramifications of filing the speedy trial demand, and whether or not it will harm or benefit their client. When an experienced criminal defense attorney makes a recommendation for or against filing the speedy trial demand, it should be strongly considered by the defendant, as the attorney is better aware of how the demand will affect the positioning of the case.

 

The term of the speedy trial demand can be broken if the defendant agrees to another continuance; if the defendant does not agree to the continuance, then the demand will continue to run.

 

Additionally, there is often a period of time between the bond hearing or preliminary hearing and the arraignment in which the speedy trial demand runs. This is because typically, judges at a bond hearing might enter a trial demand on behalf of the defendant, or an attorney might strategically ask for the demand to run knowing that it will soon be broken at the arraignment. At arraignments, the next continuance is typically by agreement, which breaks the term. However, the period of time between the bond hearing and the arraignment can be approximately four weeks, which means that if a defendant in custody later decides, upon advice of counsel, to demand a speedy trial, 30 days have already run on his demand, which means that his case must proceed to trial within 90 days.

 

There are many considerations that must be taken into account before filing a demand. Most criminal defendants are not aware of these multi-faceted considerations with far-reaching effects on the case, and as such are not qualified to decide on their own whether it is in their best interest to demand or not. An experienced criminal defense attorney, who is aware of and can meaningfully consider all of the factors, should be consulted regarding the decision to file a speedy trial demand.

 

 

Hearsay

When inquiring about a case, many clients ask their criminal defense attorney about “hearsay” evidence. Many clients typically believe that hearsay can never be used against them in a criminal case.  This is a common misconception among the general public.  Hearsay is a complicated legal concept that requires a complex legal analysis by an experienced criminal defense attorney.

Under The Illinois Rules of Evidence, hearsay is defined as:

“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Ill. R. Evid. 801(c)

The legal definition itself is complex in its wording. Essentially in layman’s terms, hearsay can be defined as a statement made by someone not testifying in court that to be used as evidence to show that a defendant committed a crime (the truth of the matter asserted).

While hearsay, as defined, is not allowed at trial, the hearsay rule is also riddled with multiple statutory and common law exceptions that allow hearsay evidence to be admitted under certain circumstances.

Hearsay is allowed at bond hearings and preliminary hearings. The rules of evidence, specifically the hearsay rule, only govern the use of hearsay evidence at a trial on the merits (Bench/Jury).  The rules do not restrict the use of hearsay at bond hearings and preliminary hearings as these types of hearings aren’t classified as trials under the rules of evidence

Additionally, as previously mentioned above, the hearsay rule is riddled with multiple statutory and common law exceptions. Examples of Common law exceptions include but are not limited to:

Hearsay Evidence of Intent, Motive, Design, or Plan

Admissions of Party Opponent;

Statements Against Interest

Forfeiture by Wrongdoing

Present Sense Impression

Excited Utterance

Dying Declaration

Recorded Recollection

Business Records Exception

Former Testimony

Essentially, when an issue of hearsay arises during the course of a trial, the party seeking to admit the hearsay evidence into trial will attempt to characterize the statement as admissible under one of the various exceptions. The basic argument is that the hearsay evidence isn’t being admitted to prove the truth of the matter asserted, but for some other purpose.  An example would be a statement that establishes the defendant’s motive for committing the crime and not that he actually committed the crime.  The Judge will determine the admissibility of the specific hearsay evidence during the trial.

Additionally, Illinois law has a Statutory exception under that allows for out of court statements in cases involving a physical or sexual act perpetrated against a child who is under the age of 13 or is intellectually disabled. This allows “outcry” witnesses to testify in court to an out of court statement the child made to them.

Illinois law also has another Statutory exception under 725 ILCS 5/115-10.2(a) which is known as the “Domestic Violence Exception.” This exception allows out of court statements relating to prosecutions of domestic violence to be admitted into evidence against a defendant charged with Domestic Battery or a related offense.   The statutory exception also allows hearsay to be admitted into evidence in a prosecution for murder if there was a domestic relationship between the defendant and victim.

Another statutory exception that has recently been passed by Illinois under 725 ILCS 5/115-10.6. This law is also known as “Drew’s law” which was created in response to the Drew Peterson case in 2012 when he was charged with murder of his third wife, Kathleen Savio.  This new statutory exception allows admission of hearsay statements from “unavailable witnesses” in murder cases.  The State must prove in an evidentiary hearing prior to trial that the witness was killed to prevent his or her testimony and that the out of court hearsay statements are reliable.

Hearsay is a very complex legal concept that requires a very thorough and intensive analysis by an experienced criminal defense attorney. Hearsay isn’t as simple as that it is never admissible against someone in a criminal case.  Hearsay has multiple nuances and exceptions that have to be analyzed carefully.  Because failing to correctly identify issues of admissibility or inadmissibility of hearsay can negatively impact the outcome of a client’s case.

Cyber Tip: Protect Yourself with Two-Factor Authentication

Important to know and USE. “Two-factor authentication, or TFA, adds that second level of protection. TFA is a technology that increases security by incorporating requirements beyond something you know (your password). Along with something you know, TFA can also include something you have (a dynamic token or PIN), something you are (a particular biometric), or somewhere you are (your location at the time of authentication).”

https://www.fbi.gov/news/news_blog/cyber-tip-protect-yourself-with-two-factor-authentication

 

Ratings and Reviews

The National Trial Lawyers
10.0Raymond George Wigell
Raymond George WigellReviewsout of 38 reviews