Kane County State's Attorney Podcast
The 5th Amendment is a part of the U.S. constitution.
The Fifth Amendment to the United States Constitution establishes several rights for criminal defendants or those who stand accused of committing a crime.
[Read more…]In Illinois the offense of mob action is the lowest level felony a person could be charged with. The exact language in the criminal code says that:
Disturbing the public peace under § (a)(1) is a Class 4 Felony. See 720 ILCS 25-1(b). See also § (b)(3) which says that,
“A participant in a mob action that by violence inflicts injury to the person or property of another commits a Class 4 felony.”
Mob action is punishable between 1 to 3 years in prison, but see the chart below for extended term numbers when applicable:
| Class | Sentencing Range | Extended Term (if eligible) |
|---|---|---|
| Class M | 20-60 years | 60-100 years |
| Class X | 6-30 years | 30-60 years |
| Class 1 | 4-15 year | 15-30 years |
| Class 2 | 3-7 years | 7-14 years |
| Class 3 | 2-5 years | 5-10 years |
| Class 4 | 1-3 years | 3-6 years |
Mob action can also be charged as a misdemeanor offense. The code says that:
Mob action under § (a)(2) and (a)(3) (knowing assembly of 2 or more persons) is a Class C Misdemeanor. See 720 ILCS 25-1(b). This means misdemeanor mob action is punishable to up to 30 days in jail. See the chart below for the maximum fine that can be imposed:
| Class | Penalty Range | Maximum Fine |
|---|---|---|
| A | less than 1 year | not to exceed $2,500 |
| B | not more than 6 mths | not to exceed $1,500 |
| C | not more than 30 days | not to exceed $1,500 |
There is a provision in the mob action code that give police the power to break-up and dispurse an unlawful mob. Any person who does not leave when ordered to can be arrested.
See 720 ILCS 5/25-1(b)(4), which say:
See also People v. Nash, 173 Ill.2d 423 (1996) (case dealing with the sufficiency of the evidence needed to convict on a mob action)
Section 2-9(a) of the Criminal Code defines a lesser included offense as one that :
The definition provides little guidance, as it fails to provide a workable test for assessing when a crime is a lesser included offense of another crime.
In Illinois criminal court the concept of a lesser included offense allows a defendant to be convicted of an offense for that he was never actually charged.
Generally, a defendant in a criminal prosecution has a fundamental due process right to notice of the charges brought against him. For this reason, a defendant ordinarily may not be convicted of an offense he has not been charged with committing.
But…
A defendant may, however, be convicted of an uncharged offense if it is a lesser included offense of a crime expressly charged in the charging instrument, and the evidence adduced at trial rationally supports a conviction on the lesser-included offense and an acquittal on the greater offense. See People v. Kennebrew, 2013 IL 113998, People v. Kolton, 219 Ill. 2d at 359-60. See also People v. Novak, 163 Ill. 2d 93, 105 (1994).
In a criminal trial there are generally two situations when a lesser included offense calculation must be performed.
The abstract elements approach is considered to be the strictest approach.
Under this approach, “if all of the elements of one offense are included within a second offense and the first offense contains no element not included in the second offense, the first offense is deemed a lesser included offense of the second.” People v. Miller, 238 Ill. 2d at 166.
Additionally, it must be impossible to commit the greater offense without necessarily committing the lesser offense.
This approach is often used to determine if a defendant will be sentenced on multiple convictions.
Under the charging instrument approach the lesser offense need not be a “necessary” part of the greater offense, but the facts alleged in the charging instrument must contain a “broad foundation” or “main outline” of the lesser offense. People v. Kennebrew, 2013 IL 113998, People v. Miller, 238 Ill. 2d at 166; People v. Kolton, 219 Ill. 2d at 361; People v. Novak, 163 Ill. 2d at 107.
“The indictment need not explicitly state all of the elements of the lesser offense as long as any missing element can be reasonably inferred from the indictment allegations.” People v. Miller, 238 Ill. 2d at 166-67.
This approach is used to determine if it is proper to allow a conviction for an uncharged count.
The lesser included offense rules were created to more accurately conform punishment to the crime actually committed.
In People v. Miller, 238 Ill. 2d 161 (2010), the Illinois Supreme Court distinguished the approach that applies when determining whether an uncharged offense is a lesser included offense of a charged crime from the approach that applies when determining whether a charged offense is a lesser included offense of another charged offense under the one-act, one-crime doctrine.
While the charging instrument approach applied with uncharged offenses, there was “no reason to apply the charging instrument approach when a defendant is charged with multiple offenses and the issue is whether *** one offense is a lesser included offense of the other.” People v. Miller, 238 Ill. 2d at 173. See also People v. Kennebrew, 2013 IL 113998, ¶38.
As a matter of state law, Illinois has chosen to apply the charging instrument approach where the lesser-included offense was uncharged. And the abstract elements approach when the lesser offense is charged. “Considering Novak, Kolton, and Miller together, the distinction between uncharged offenses and multiple charged offenses is essential to determining the proper approach in this case.” See People v. Kennebrew, 2013 IL 113998, ¶39, People v. Kolton, 219 Ill. 2d 353.
This is called laying a proper foundation for the physical item.
See People v. Wood, 214 Ill.2d 455 (2005); see also People v. Howard, 387 Ill.App.3d 997 (2009); and People v. Cowans, 336 Ill.App.3d 173 (2002).
In a drug case chain of custody evidence is required.
A bag of cocaine looks like any other bag of cocaine. It also looks like a bag of flower. After suspected drugs are taken into custody from that point forward the state must account for the “chain of custody” for that item.
These are the kind of questions that might be asked by a prosecutor who is establishing a proper chain of custody.
The character of the item determines which method for laying an adequate foundation must be used.
Generally, physical evidence that is not readily identifiable or is susceptible to tampering, contamination or exchange requires a chain of custody. See People v. Wood, 214 Ill.2d 455 (2005).
The State must show that the police took reasonable
protective measures to ensure that the substance recovered from the defendant was the same substance tested by the forensic chemist.
To establish a sufficient chain of custody, the State must prove
of the evidence. See People v. Echavarria, 362 Ill.App.3d 599 (2005).
Illinois decisions endorse the use of one unique identifier to show that each person in a chain of custody is describing the same piece of evidence; the unique identifier is typically a police inventory number. See, People v. Howard, 387 Ill.App.3d 997 (2009).
Use of one unique identifier is the simplest and so the most satisfactory, method of showing that each person was handling the same evidence.
If they don’t use a unique number to mark a substance the State nevertheless can establish a custody chain that is sufficiently complete to make it improbable that the evidence has been subject to tampering or accidental substitution.
Each custodian could use his or her own method to identify the object, as long as that method satisfactorily distinguishes the item from any other he or she might handle and allows him or her to reliably identify the item in court.
The State first establishes a prima facie showing that the chain of custody for controlled substances is sufficient by meeting its burden to establish that reasonable protective measures were taken to ensure that the evidence has not been tampered with, substituted or altered between the time of seizure and forensic testing.
After the State establishes a prima facie case, the burden
then shifts to the defendant to produce evidence of actual tampering, alteration or substitution.
Upon the defendant making such a showing, the burden again shifts to the State to rebut the defendant’s claim.
A sufficiently complete chain of custody does not require that every person in the chain testify, nor must the State exclude every possibility of tampering or contamination; the State must demonstrate, however, that reasonable measures were employed to protect the evidence from the
time that it was seized and that it was unlikely that the evidence has been altered.
Once the State has established the probability that the evidence was not compromised, and unless the defendant shows actual evidence of tampering or substitution, deficiencies in the chain of custody go to the weight, not admissibility, of the evidence.
Even where the chain of custody has a missing link, trial courts have properly admitted evidence where there was testimony which sufficiently described the condition of the evidence when delivered which matched the description of the evidence when examined. See People v. Wood, 214 Ill.2d 455 (2005).
In Illinois a reckless homicide is an unintentional killing involving a vehicle. It results when a person acts recklessly such that their conduct with a vehicle leads to the death of another individual.
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