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Thursday, May 28, 2015 10:47 am

The Widening Net

Bill allows prosecutors quicker access to personal records

The Illinois House passed a bill last week which would allow prosecutors new access to personal records in criminal trials.

Senate Bill 1688 adds state’s attorneys to the list of people who can submit a written request for someone’s vital records, such as a birth certificate or a death certificate. A request would have to be made for the purpose of a criminal prosecution.

The bill was inspired by a single case. Prosecutors in that case needed to prove the age of a young girl, but didn’t want to call her up to the stand, where she would likely be cross-examined by defense attorneys.

“We don’t want young girls at that age (to) have to be tormented by being cross-examined by defense council,” said Rep. Ed Sullivan, R-Mundelien. “That’s why this bill’s here.”

The bill met resistance in the House by legislators concerned about its impact on privacy and the balance of power in the courtroom.

The documents in question are accessible to state’s attorneys under the current system, but they must to file a subpoena with the court to such records. The new proposal would have them file a written request to the clerk holding the documents.

Rep. Scott Drury, D-Highwood, who is himself a former federal prosecutor, said that state’s attorneys are already able to obtain this kind of document; they simply must get a subpoena to do it. He said giving state’s attorneys the ability to obtain those documents without going through the judicial process tips the scales of justice in favor of the prosecution.

“This is a big change in policy to give the state’s attorneys more power than they have (now) because they don’t want to issue a piece of paper to someone to get a document that they’re not entitled to without it,” Drury said. “When a prosecutor needs to get evidence, it’s okay to work through the judicial process as it is.” 

The bill’s House sponsor, Rep. Margo McDermed, R-Mokena, said the change in the law was not that dramatic.

“This is just adding one more name to the group of people that can properly request this document other than the owner – the person whose certificate this is,” McDermed said.

But as Drury saw it, the change fliesin the face of long-standing precedent, and he needed a better reason to support the bill than a single incident.

“For probably hundreds of years, we’ve required state’s attorneys to get a subpoena to get this information which has very personal information to people,” Drury said.

Rep. Monique Davis, D-Chicago, had several concerns about changing the law. First and foremost, she took issue with the idea of changing a law that otherwise works because of an isolated incident when it did not.

“I’ve seen it happen here; we do it a lot,” Davis said. “We have one case, and we change the law and it becomes a wide net, and many times, it hurts innocent people.”

Davis made a point of noting that the City of Chicago has a bad track record when it comes to false convictions and that track record comes with a very real cost. A 2011 study by the Better Government Association found that over two decades, settlements, legal fees and incarceration cost the City of Chicago $214 million. She also said she saw this as a part of a larger whittling down of personal privacy by government. 

“We give up so many of our freedoms and our personal information,” Davis said. “This is one little thing we still have.”

Many of those raising objections on the floor said they were seeing the bill for the first time. Those arguing in favor of the bill pointed out that it had no opposition in the Senate or in committee hearings.

“The idea that we should vote no because a member here says he hasn’t had a chance to vet the bill, we’d never get anything done,” said Ron Sandack, R-Downers Grove.

Drury would have had a chance to give the bill a closer look if it had been sent to the House Judiciary Criminal Committee, where he sits as co-chairman. It was instead sent to the Judiciary Committee on civil matters. Drury said that had it come to his committee, it would have had at least one “no” vote.

Drury said that the bill changed the balance of justice in a way he wasn’t comfortable with.

“The government is held to burden in a criminal trial, and the defendant is presumed innocent,” Drury said. “If we’re going to change the rules to help the government, which can be done, I think we need to have a good basis for doing that.”

The bill has passed both chambers and awaits the governor’s signature.

Contact Alan Kozeluh at intern@illinoistimes.com.

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