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Once again Chicago police violated a citizen’s Fourth Amendment right against unlawful search and seizure. On April 30, the Illinois Appellate Court issued a ruling in People v. Sims re-affirming that police must have a reasonable suspicion of criminal activity before they can stop and search an individual.

People v. Sims

In 2010 Henry Sims was stopped by a Chicago police officer after the officer witnessed Sims stuff something down the crotch of his pants and walk away. The officer knew that Sims had a prior arrest for unlawful use of a weapon. He proceeded to stop Sims because his “movement was consistent with someone that could be armed.” The officer immediately palmed Sims’ crotch where he felt not a weapon, but a bag that he recognized as containing narcotics. The bag contained 25 smaller bags, which testing revealed to be cocaine.  supreme-court-1-657696-m

At trial Sims moved to suppress the cocaine, arguing that the officer did not have reasonable suspicion that he was engaged in criminal activity, and that the stop there did not meet the requirements of a Terry stop. The court denied Sims’ motion; he was convicted of possession of a controlled substance with intent to deliver, and was sentenced to six years in prison.

The Illinois Appellate Court overruled the trial court’s decision, finding that the officer’s actions did not meet the two-part test required in determining whether a Terry stop is valid. Sims’ simple act of putting his hand down his pants did not give rise to a reasonable suspicion of criminal activity that would justify the stop – and a “hunch” by the officer that Sims had a weapon is insufficient to stop him. Since the stop itself was unreasonable, the search (or frisk) was also unreasonable, as it was not justified by a reasonable belief that the individual was armed and dangerous. Because the only evidence of Sims’ crime was the direct result of the illegal stop and search, the court overturned both Sims’ conviction and imprisonment.

People v. Sims is another in a long line of cases that support the individual’s right to not be harassed by police. As the officer even stated in his trial testimony, it is not illegal for a person to stuff his hands down his pants. He could have been cold, he could have had an itch, or he could have been readjusting, as males do from time to time. As the court noted, it is not the defendant’s responsibility to provide innocent explanations for his behavior; rather, the burden lies with the prosecution to prove that his actions raised a reasonable suspicion of criminal activity. But these innocent explanations are ones that a skilled defense attorney would raise in court during a motion to suppress, or at trial to raise reasonable doubt.

The recent passage of Illinois’ concealed carry gun law will make it even more difficult for an officer who has a reasonable suspicion that an individual has a gun, to further prove that he had reasonable suspicion reasonable suspicion that a crime had been, was, or was about to be, committed, since carrying a concealed weapon is now legal. The fact that an individual is seen stuffing a weapon down his pants or adjusting what appears to be a weapon in his jacket pocket is insufficient to make a stop; there is a presumption against the individual engaging in criminal activity, and since carrying a concealed weapon is legal with a permit, the presumption would be that, absent any other reasonably suspicious activity, the individual has a permit and is in legal possession of the concealed weapon. Continue reading

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A Chicago man who teaches GED and adult literacy classes to Cook County Jail inmates has been charged with custodial sexual misconduct for allegedly having sexual intercourse with a female detainee on two occasions this past January. Both the defendant and the detainee were over the age of 18. While there does not appear to be allegations that the sex was not consensual, Illinois law prohibits consent to intercourse as a defense in custodial situations. However, that does not mean that the defendant has no chance of having the case against him reduced or dismissed.

Custodial Sexual Misconduct in Illinois

Illinois law prohibits employees of any penal system or treatment and detention facility from engaging in any type of sexual conduct or penetration with a person who is in the custody of either facility. The law states that a prisoner or detainee is deemed incapable of consenting to the sexual conduct. Conviction under this statute is a Class 3 felony, which carries a possible penalty of 3-5 years in prison and up to a $25,000 fine.

Defense against Custodial Sexual Misconduct in Illinois

As already discussed, consent is not a defense to a charge of custodial sexual misconduct. But an experienced sex crimes attorney knows how to find the flaws in the prosecution’s case to get the charges reduced or dismissed.

Illinois law does allow as a defense to custodial sexual misconduct that the defendant “has no knowledge, and would have no reason to believe, that the person with whom he or she engaged in custodial sexual misconduct was a person in custody.” The class the defendant taught in this case had voluntary attendance, which means he likely did not have a class roster of inmates who would be in attendance. If the inmate came to class in civilian clothes and claimed that she was a Cook County jail employee, the defendant would have had no way to prove that she was lying, as he had no class list to check. An experienced criminal defense attorney would examine all of the circumstances, including the inmate’s actions, demeanor and clothing, to determine whether the defendant should have known she was an inmate.

It is also always a defense to any sexual assault charge that no sexual conduct took place, or in other words, that the alleged victim is lying. If none of the defendant’s DNA was found on the inmate, and if there was no other physical evidence indicating that any type of sexual conduct happened, the case would come down to he said/she said. In these cases, a criminal defense attorney would want to:

  • interview all potential witnesses;
  • interview anybody who knew the alleged victim, particularly prison employees who interacted with her on a daily basis;
  • review any of the alleged victim’s treatment or prison notes; and
  • review her criminal record, including the conviction that sent her to jail.

The purpose of this extensive review of the alleged victim’s background would be to see if she had made similar accusations against prison officials or others in a position of authority in the past; if she had a history of lying, or; if she had had any prior trouble with the defendant over attending the class. All of these could point to her having made up the story of sexual misconduct either to get back at the teacher for a prior slight – perhaps him rebuffing her advances – or as a pattern of past behavior. Proving that the alleged victim made the story up would result in an acquittal. Continue reading

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Illinois Cook County Sheriff’s officers arrested a Minneapolis man in March after a traffic stop revealed that the man had 25 pounds of crystal methamphetamine in his vehicle. Officers pulled the vehicle over in Arlington Heights after observing it commit several traffic violations. The drugs were found after the driver consented to a police search; the driver was then arrested and charged with possession of a controlled substance with intent to deliver. The arrest raises several issues that an experienced drug possession attorney would explore to determine whether the police exceeded their authority in the search, seizure and arrest. Such a violation of the defendant’s rights could help get the charges dismissed or reduced.

Stop, Search and Seizure of Vehicle

Illinois police are permitted to stop a vehicle if they have reasonable suspicion to believe that the driver has committed a traffic violation. In this case, an experienced attorney would review police reports to determine whether the police had reasonable suspicion to believe that the driver did in fact commit a traffic violation. The police report should reveal what prompted the officers to pull the vehicle over; if no valid reason is included in the report, it could indicate that the police acted on a “hunch,” which does not qualify as reasonable suspicion. Lacking a reasonable suspicion, the stop and everything that followed would be a violation of the defendant’s Fourth Amendment right against unreasonable search and seizure, and may lead to outright dismissal of the charges.

Next comes the search. Police claim that the driver consented to the search. An attorney would again review the police report and discuss with the client how consent was given. There is a difference between if the officer asked, “Would you mind if I searched the vehicle?” or instead stated, “I’m going to need to search the vehicle.”

The first question implies that the driver had the right to refuse, which is the case in all police stops; there is no requirement that you answer the police officer’s questions, and you are always free to go on your way unless an arrest has been made.  An arrest is made when you do not feel that you have the right to leave the scene.

The second statement, however, does not give the driver any indication that he is free to refuse the search and continue on his way. Consent is not freely given if the defendant feels that he cannot refuse. The search may also have been unreasonable if the reason for the stop did not warrant the search; for example, pulling the driver over for a broken taillight would not normally necessitate the search of a vehicle. If consent was not freely given, then discovery of the methamphetamines would be illegal.  A motion to quash the arrest and suppress the evidence would be filed and the evidence would be deemed inadmissible in court, thus leading to an outright dismissal of the charges.

An attorney would also investigate to determine whether the police could prove that the drugs belonged to the driver. Was the car registered to him? If the driver borrowed a friend’s car and did not know it contained drugs, it may be possible to have the intent to deliver charge dismissed. If the car did belong to the driver, had he lent it to anybody recently who may have placed the drugs in the vehicle without his knowledge? If the drugs were planted by a third party, then the intent to deliver charge would have to be dismissed. Both of these scenarios would also negate the charge of intent to deliver.

Intent to Deliver in Illinois  penitentiary-3-434119-m

The defendant in this case was also charged with intent to deliver, which carries stiff penalties; a conviction for possession of more than 900 grams of methamphetamine with intent to deliver is a Class X felony, which carries a possible prison sentence of 15 to 60 years and a maximum fine of $500,000 the street value of the drugs, whichever is greater.

An attorney will examine all the evidence to determine if any of the defendant’s rights were violated. If the evidence suggests a guilty verdict, he will zealously negotiate with prosecutors and the judge for a reduced sentence, or seek to reduce the charges or prison time in exchange for helping in an investigation of a larger drug ring. Continue reading

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Abortion is legal in the state of Illinois. But as a Humboldt Park woman discovered in January of this year, if you unintentionally cause the death of an unborn child, you could go to prison.

The woman was making a U-Turn from West North Avenue when she crashed in to a pregnant woman riding a scooter. The woman was tossed from the scooter, and doctors were later unable to locate the fetus’ heartbeat. The driver was charged with one count of felony reckless homicide of an unborn child and one count of aggravated DUI causing bodily harm after a DUI kit showed she had marijuana in her system.

Reckless Homicide v. Involuntary Manslaughter of Unborn Child in Illinois.  crashed-car-1148745-m

In Illinois reckless homicide of an unborn child occurs when the driver of a motor vehicle recklessly causes the death of, or great bodily harm to, the mother, which results in the unborn child’s death. The charge applies whether the person’s actions were lawful or unlawful. Reckless homicide is a Class 3 felony, punishable by two to five years in prison and up to a $25,000 fine.

If a motor vehicle is not involved, the charge is involuntary manslaughter.

Defense Against Illinois Reckless Homicide Charge

It is undeniably sad when an unborn child dies. However, even if you were involved in an accident that allegedly caused the death of that child, it does not automatically mean the death was your fault.

Like any vehicular case, David L. Freidberg will first look at the crime scene evidence and the police report. Experts may be able to disprove the prosecution’s claim that you caused the accident, or that it happened in the manner they claim. Experts will look at evidence such as eyewitness statements, video surveillance footage, skid marks, estimated speed and driving conditions in an attempt to reconstruct the accident to determine if your actions were reckless. They will also look at the actions of the other driver or pedestrian to determine if you even caused the accident.

Medical experts may also examine the mother’s medical history related to the pregnancy. Stillbirth, which is the in utero death of a fetus past 20 weeks gestation, occurs in 1 out of every 160 pregnancies; miscarriage, which is the spontaneous loss of a fetus prior to 20 weeks gestation, occurs in 10–25% of all pregnancies. It is therefore possible that the unborn child had died prior to the accident, and it was just discovered during the hospital’s examination of the mother following the accident. Examination of the mother’s medical records will show whether the mother had experienced any complications, or if the unborn child had any abnormalities, that could have resulted in an in utero death days or weeks prior to the accident.

If the unborn child died following the accident, medical experts would review the mother’s medical records looking for the same information. If an autopsy of the unborn child was performed, that may have evidence of an underlying condition that could have resulted in the child’s death, rather than the accident. The fact that an unborn child died near the time of the accident does not automatically mean the accident was the cause of death, and David L. Freidberg can help uncover other possible causes of death. Continue reading

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Illinois criminal defendants have a guaranteed right to a speedy trial under Illinois state law. Depending on the circumstances, a defendant must be brought to trial within 120 to 160 days following his arrest. There are also situations that can stop the speedy trial clock from running. If you’ve been arrested and charged with any crime in Illinois, you need an experienced criminal defense attorney who understands the time limits, the exceptions, and when it is to your benefit to invoke (or not invoke) the right.

Illinois Right to Speedy Trial in Criminal Cases

Under Section 725 ILCS 5/103-5,  Illinois guarantees criminal defendants a speedy trial. The time limit varies depending on the circumstances. The defendant must make a formal written request with the court to invoke his speedy trial rights.

If the defendant is in jail, the state has 120 days from the date he was taken into custody to bring the case to trial. If the defendant is out on bail or released on his own recognizance, the state has 160 days to bring the case to trial. There must also be one continuous period of incarceration. For example, if you are released from jail after 30 days because you made bail, but are then re-arrested for violating a condition of bail, the clock starts over.

If the prosecution does not bring the case to trial within the above time limits, the defendant must be released from custody or released from his bail requirements.

Exceptions to the Illinois Right to Speedy Trial

gavel-5-1409595-mThe right to a speedy trial is an affirmative right. This means that in order for the clock to start running, you must invoke the right. The clock will stop running if you request a continuance for any reason, including an evaluation to determine your fitness for trial.  This is why an experienced criminal attorney will usually try to have a continuance based on the State’s motion or order of court.

The prosecution may request a 60-day extension if, after exercising due diligence, it is unable to obtain material evidence and there are reasonable grounds to believe that granting a continuance will allow the prosecution to obtain that evidence.

In 2013 the Illinois Supreme Court ruled that the 60-day extension provision of the law can be given more than once. The ruling came in the case People v. Lacy. The defendant, Elijah Lacy was arrested and charged with murder in the 2007 death of a Carbondale, Illinois woman. Police arrested Lacy in 2009, and he was brought to trial in 2010 after Lacy requested several continuances.

The prosecution requested a continuance because the eyewitness, who lived in Missouri, was unable to travel due to a high risk pregnancy and would be unavailable for the trial date. The court granted the continuance and rescheduled the trial.

The prosecution requested a second continuance when its key police witnesses was deployed to Afghanistan and would be unavailable to testify. Lacy’s attorneys then filed a motion for the case to be dismissed because the two continuances exceeded the 60-day extension allowed under law. The trial court granted Lacy’s motion, and the appellate court agreed.

The Illinois Supreme Court reversed the dismissal and ruled that the law allows the prosecution a 60-day continuance for each piece of material evidence. In Lacy’s case, that meant that the prosecution was entitled to one 60-day continuance until the eyewitness would be able to testify, and a second 60-day continuance to allow the police witness to return from Afghanistan.

There are pros and cons of invoking the right. It may be to your advantage to allow the prosecution to take as much time as necessary, especially if the case against you is based largely on eyewitness testimony. As time goes on, memory fades, increasing the chance that the eyewitness will forget key details or change his testimony when compared to his initial statement. An experienced criminal defense attorney like David L. Freidberg can take advantage of these inconsistencies to help get your case dismissed or the charges dropped. Continue reading

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A new bill introduced in the Illinois legislature would extend the statute of limitations in some rape cases. Senate Bill 2609 seeks to change when the statute of limitations in rape cases begins to run. Current law provides that the statute of limitations in rape cases begins to run on the date the alleged rape occurred, if the alleged victim reported it to police within three years. If you are being investigated for, or have been charged with, committing rape, contact an experienced sexual assault attorney immediately.  depressed-girl-1030147-m

Proposed Changes to Illinois Sexual Assault Statute of Limitations

If the new law is enacted, the statute of limitations would begin to run on the date the police processed DNA evidence from the rape kit. The new law is in response to a case in which the alleged victim submitted to a DNA rape kit. By the time the police processed it, the 10-year statute of limitations had expired, and the prosecution was unable to file charges against the alleged rapist. The bill’s sponsor argues that victims should not be denied justice due to police mistakes, whether caused by a lack of competency or a backlog of cases.

Effect of Statute of Limitations Extension in Illinois Rape Cases

If SB 2609 passes, it will likely have little effect on the prosecution of rape cases. The case that spurred on the new law is no doubt a one-time case of severe police ineptitude not likely to be repeated, even if the police do have a backlog of rape kits to process. Even though opponents of the law say it does not give the police incentive to process DNA rape kits, since they know charges can be filed no matter how much time has passed between the date the alleged rape occurred and the date they final process the kit, the embarrassment over this case should keep them honest.

Passage of SB 2609 will have no effect on how the Chicago Law Offices of David L. Freidberg, P.C., will defend against sex crimes cases. Rape kits and DNA evidence are not the bombshell evidence the prosecution and media would have you believe. The rape kit only confirms whether the alleged victim and alleged rapist had sexual intercourse. If the DNA results from the rape kit show that the alleged rapist did not have sex with the alleged victim, then the charges will be dropped. And if the DNA results show that the two did have sex? Well, that’s all it shows.

Evidence of sexual intercourse is just that – proof that two people had sex. It is not evidence that a rape occurred. If the sex was consensual and no protection was used, of course the rape kit would find the alleged rapist’s DNA on the alleged victim. If it shows scratches, abrasions or other marks on or inside the victim, that still is not evidence that a sexual assault occurred.

David L. Freidberg has an arsenal of forensic experts who can examine the results of a DNA rape kit to determine whether there’s any possibility that the sample was improperly tested or not large enough for an accurate result. They can also testify to any number of harmless, non-assault reasons why marks or abrasions on the victim could have occurred, either during consensual sex or during the victim’s normal daily activities. Continue reading

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The Illinois legislature is considering enacting new laws that would decriminalize possession of small amounts of marijuana. The proposed bills fall short of legalizing pot, as Colorado and Washington do, but would instead align Illinois with 16 other states that no longer incarcerate individuals caught with small amounts intended for personal use. The bills are part of a growing movement that perceives marijuana as less dangerous than other drugs. They also seek to alleviate the burden of arrest, prosecution and incarceration of individuals caught with small recreational amounts.

Proposed Changes to Illinois Possession of Marijuana Laws

There are three bills currently working their way through the Illinois legislature seeking to lessen the penalties for different forms of marijuana possession.  weed-403-m

Two bills seek to lower the penalties for marijuana possession for personal use, and increase the amount of marijuana that is considered “for personal use”.

House Bill 5708, which was introduced by Reps. Kelly M. Cassidy and La Shawn K. Ford of Chicago, would classify possession of not more than 30 grams of marijuana or any marijuana-containing substance as a petty offense. Those in possession would receive a ticket and be fined $100. Possession of anywhere from 30-500 grams would be classified as a Class A misdemeanor for a first offense, and a Class 4 felony for a second offense. Currently Class 4 felony and Class 3 felony for a second offense.

House Bill 4299, sponsored by Chicago Rep. Christian Mitchell, makes similar changes to the law as House Bill 5708, but varies the amounts allowed for possession. Under Rep. Mitchell’s bill, possession of 10 grams or less of marijuana would be a petty offense punishable by no more than a $100 fine.  Possession of between 10 and 30 grams would also be a petty offense punishable by no more than a $100 fine for a first offense; a second offense would be a Class A misdemeanor (currently it’s a Class 4 felony).

Chicago Rep. Michael Zalewski introduced House Bill 4091, which would reclassify possession of not more than 30 grams of marijuana as a petty offense, unless the individual had two or more prior convictions, in which case he would be charged with a Class A misdemeanor.

Cost of Prosecution for Illinois Marijuana Possession

Part of the rationale behind the proposed changes in the marijuana possession law is the cost involved in prosecuting what are essentially victimless crimes. In 2011, 663,032 people were arrested nationwide for marijuana possession. There were 100,000 more arrests that year for marijuana possession than for violent crimes. More people were arrested for smoking dope, when the only arguable victim was him or herself, than people arrested for actually causing harm to another person.

Chicago arrests follow that trend – an average of 23,000 arrests each year for marijuana possession, about equal to the number of arrests for assault and battery combined. And the city is spending approximately $78 million to arrest, prosecute and incarcerate these so-called “offenders.” The Chicago police estimate it takes two officers approximately three hours to arrest an individual for marijuana possession, from the time they slap the cuffs on him to the time they file their paperwork. Three hours for the “crime” of lighting up takes away man hours that could be spent patrolling the streets looking for other crimes.

There is also the human cost involved with arrest for marijuana possession. There is the cost to the defendant of hiring an experienced attorney to help defend the case. Under the current law conviction under the lowest offense, a Class C misdemeanor, could result in up to 30 days in jail and up to a $1,500 fine. A person convicted may be required to report the misdemeanor on future job, housing or school applications, putting his ability to work and live where he wants in jeopardy. Continue reading

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The Fourth Amendment of the United States Constitution protects citizens from unlawful searches and seizures. Yet it is the most frequently violated civil right, and on March 20th the Illinois Supreme Court ruled that yet another police officer violated that right by conducting an illegal search and seizure. If a police officer violated your Fourth Amendment rights, it may be possible to get evidence tossed out, or the charges completely dismissed. That is why following an arrest you should immediately meet with an experienced Chicago search and seizure attorney who can help determine whether the police exceeded their authority during the arrest.

Illinois Stop, Search and Seizure Law

Illinois law permits a police officer to stop any person he reasonably believes is about to commit, is in the process of committing, or has committed, a crime of any nature. You are not required to answer any questions the police may ask, nor are you required to show identification. The officer may also perform a limited search of the person for evidence of the suspected crime. These are known as Terry stops.

The Terry stop rules apply to vehicles as well, and the police are usually permitted to ask to see the driver’s license. But not every traffic stop allows the police to request the driver’s identification. And in People v. Cummings, the Illinois Supreme Court laid out another example of when requesting the driver’s identification becomes an unlawful search and seizure.

Search and Seizure During Illinois Traffic Stop

In People v. Cummings, a police officer driving behind Mr. Cummings suspected that the vehicle’s registration had expired. A quick computer check showed that the registration was valid. However, it also showed that the car’s registered owner – a female – had an outstanding warrant. The officer pulled the vehicle over and, upon approach, immediately realized that Mr. Cummings was male. The officer asked for Mr. Cummings’ identification anyway, at which point he discovered that Mr. Cummings had a suspended license. Cummings was later charged with a Class 4 felony.

The Illinois Supreme Court ruled that the officer violated Mr. Cumming’s right against unlawful search and seizure. Pulling the car over was valid, since the computer check showed that the car’s registered owner had an outstanding warrant. However, the search also showed that the registered owner was a female. Once the police officer realized that the car’s driver was a male, the stop should have ended immediately.

By asking Mr. Cummings for his identification, when he had no reasonable suspicion to believe that Mr. Cummings had committed, or was in the process of committing, a crime, the officer violated Mr. Cummings’ Fourth Amendment right to be free from an unreasonable search and seizure. The court stated that “unless a request for identification is related to the reason for the stop, it impermissibly extends the stop and violates the Constitution.”

In this case, the purpose of the stop was to arrest the car’s registered owner on the outstanding warrant. Requesting Mr. Cummings’ identification, when he clearly was not the car’s registered owner, extended the stop beyond what the Fourth Amendment allows. If the driver had been female, requesting identification would have been acceptable – the officer did not know what the car’s registered owner looked like, and thus would have needed identification to verify her identity.

Chicago Search and Seizure Attorney

The ruling in People v. Cummings is specific to the facts of the case, which makes it very important that you contact an experienced criminal defense attorney if you were arrested following any type of police stop. If the officer’s actions exceeded their Fourth Amendment authority, it is possible to have the evidence tossed out, which may result in the charges against you being dropped. Continue reading

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On March 20, the Illinois Supreme Court overturned the state’s controversial audio eavesdropping law on the grounds that it was unconstitutional. The court ruled that the eavesdropping law, which made it a felony to record and publish speech without the consent of all parties, was an overly broad restriction of the first amendment right of free speech.  If you or someone you know has been charged or convicted under the Illinois audio eavesdropping act, contact an Illinois criminal defense attorney immediately to discuss having your case dismissed and your record expunged.

Illinois Audio Eavesdropping Act

The Illinois audio eavesdropping act made it a felony to knowingly and intentionalchilds-ear-1032418-mly use a device to either listen to, or record, any part of a conversation, unless the recording was made with the consent of all parties. It also prohibited divulging the conversation in any manner. A first offense was a Class 4 felony, punishable by one to three years in prison. A second offense was a Class 3 felony, punishable by three to five years in prison. Both were also subject to imposition of up to a $25,000 fine.

Annabel Melongo and the Illinois Audio Eavesdropping Act

The case was brought before the Illinois Supreme Court in People of the State of Illinois vs. Annabel Melongo.  Ms. Melongo was charged in a Cook County trial court after she recorded a court employee and then published the recordings on her blog. Ms. Melongo failed to get the court employee’s permission prior to recording the conversation.

Ms. Melongo’s first trial ended in a mistrial, with the jury being unable to come to a decision. The prosecution retried the case, and in the second hearing Ms. Melongo argued that the eavesdropping act violated the First Amendment’s right of free speech. The trial court agreed and declared the statute unconstitutional, and the prosecutor appealed. Ms. Melongo spent 20 months in jail awaiting trial.

Illinois Audio Eavesdropping Act Declared Unconstitutional

The court ruled that the Illinois eavesdropping act violated the First Amendment right of free speech because it was too broad. The statute’s intent was to protect private conversations from being recorded and shared. If you meet with your attorney, for example, you shouldn’t have to worry that somebody is sitting outside the door with a cell phone in hand, recording the conversation with the intent of sharing it. You have an expectation of privacy because you are behind closed doors, in a private meeting with your attorney.

The court found that the statute, as written, made all conversations private, even those where a person would not have a reasonable expectation of privacy. For example, if you recorded a person talking loudly on his cell phone on the bus, a husband and wife arguing in a public park, or fans screaming at a Chicago Bulls game, you could be charged and convicted of violating the eavesdropping act – even though none of those people should expect that their conversations are private.

Because the court found the recording part of the eavesdropping act unconstitutional, it also found that the prohibition against sharing the conversation unconstitutional as well. Not only does this make sense from a legal standpoint – if you have the right to record, you should have the right to publish – it makes sense from a practical standpoint as well.

Consider that a newspaper reporter could attend a court hearing, take notes on the proceeding, and then publish an article on what he saw and heard, without the fear of arrest, conviction and jail time. But if that same reporter recorded the hearing, because he didn’t want to risk jotting anything down wrong, under the eavesdropping act he would face criminal prosecution. What is the difference between the two?  There is none, which is why the court declared the law unconstitutional. Continue reading

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You often hear of a person having committed “assault and battery”. But while they are closely related, in Illinois assault and battery are two separate crimes, each with different penalties. Assault and battery are also classified as simple or aggravated, with aggravated crimes carrying much stiffer penalties. If you have been charged in the city of Chicago, or in Cook, Lake, DuPage, Will, Kane or McHenry counties with assault or battery, contact an experienced criminal defense attorney immediately to begin mounting your defense.

Assault Crimes in Chicago  fight

In Illinois, under section 720 ILCS  5/12-1,  a person commits simple assault when he or she knowingly engages in conduct that “places another person in reasonable apprehension of receiving a battery.” Assault is a Class C misdemeanor punishable by less than 30 days in jail and a maximum fine of $1,500. If no jail time is imposed, then the court must order between 30 and 120 hours of community service.

Simple assault does not involve any physical harm to the alleged victim, nor does it require any physical contact. Instead, assault is putting someone in fear that they are about to be injured or struck in any way. However, the law requires that the threat be reasonable.

In examining this reasonableness, at attorney will consider whether:

  • You were close enough to the other person when you made the supposed threat that you actually could have touched them;
  • It was a threat you could have followed through on, or a comical threat that could never happen;
  • The threat was a single statement or action, or whether it was part of a longer interaction that left no reasonable interpretation that you intended harm – for example, you argued with a stranger over his having stolen your parking space and, between yelling about the general lack of courtesy in today’s world and why you were entitled to the spot, you yelled, “I’m so mad I could hit you!”

The presence of any of these scenarios could lead to a dismissal of the assault charges.

Battery Crimes in Chicago

Where assault is the threat of bodily harm, under Illinois statute 720 ILCS 5/12-3, battery is when the person follows through on the threat. A person commits the crime of battery in Illinois when he knowingly:

  • causes bodily harm to another person, or
  • makes physical contact of an insulting or provoking nature to another person

Battery is a Class A misdemeanor punishable by less than one year in jail and a maximum fine of $2,500.

Notice that a charge of battery does not require that the alleged victim was injured – there only needs to be unwanted contact. If you pushed someone during an argument, or if you poked the person while yelling racial slurs, this may be enough for the police to arrest and charge you with battery.

Likewise, you can be charged with battery even if you did not physically cause the injury. For example, you could be charged with battery if you punched someone in the face. You could also be charged with battery if you swing a baseball bat into a window, and a piece of shattered glass becomes embedded in the arm of a person standing next to the window. Even if you did not intend the harm, it could still be considered battery because you set in motion the chain of events that caused the injury. Continue reading

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