§ 2-702 Petition for a certificate of innocence that the petitioner was innocent of all offenses for which he or she was incarcerated

(a) The General Assembly finds and declares that innocent persons who have been wrongly convicted or adjudicated delinquent of crimes in Illinois have been frustrated in seeking legal redress due to a variety of substantive and technical obstacles in the law and that such persons should have an available avenue to obtain a finding of innocence so that they may obtain relief through a petition in the Court of Claims. The General Assembly further finds misleading the current legal nomenclature which compels an innocent person to seek a pardon for being wrongfully incarcerated. It is the intent of the General Assembly that the court, in exercising its discretion as permitted by law regarding the weight and admissibility of evidence submitted pursuant to this Section, shall, in the interest of justice, give due consideration to difficulties of proof caused by the passage of time, the death or unavailability of witnesses, the destruction of evidence or other factors not caused by such persons or those acting on their behalf.

(b) Any person who was convicted or adjudicated a delinquent and subsequently served any part of a sentence of incarceration in a State prison, in a county jail, in a county juvenile detention facility, or in an Illinois Youth Center, on parole or probation, or registered as a sex offender for one or more felonies by the State of Illinois which he or she did not commit may, under the conditions hereinafter provided, file a petition for certificate of innocence in the circuit court of the county in which the person was convicted or adjudicated a delinquent. The petition shall request a certificate of innocence finding that the petitioner was innocent of one or more offenses for which he or she was convicted or adjudicated a delinquent.

(c) In order to present the claim for certificate of innocence of an unjust conviction or juvenile delinquency adjudication, the petitioner must attach to his or her petition documentation demonstrating that: (1) he or she has been convicted or adjudicated a delinquent of one or more felonies by the State of Illinois, and has served all or any part of the sentence; and (2) his or her judgment of conviction or delinquency adjudication was reversed or vacated, and the charge dismissed or, if a new trial was ordered, either he or she was found not guilty at the new trial or he or she was not retried and the charge dismissed; or the statute, or application thereof, on which the charge was based violated the Constitution of the United States or the State of Illinois; and (3) his or her claim is not time barred by the provisions of subsection (i) of this Section.

(d) The petition shall state facts in sufficient detail to permit the court to find that the petitioner is likely to succeed at trial in proving that the petitioner is innocent of the alleged offenses for which he or she was convicted or adjudicated a delinquent, and the petitioner did not by his or her own conduct voluntarily cause or bring about his or her conviction or juvenile delinquency adjudication. The petition shall be verified by the petitioner.

(e) A copy of the petition shall be served on the Attorney General and the State's Attorney of the county where the conviction or juvenile delinquency adjudication was had. The Attorney General and the State's Attorney of the county where the conviction or juvenile delinquency adjudication was had shall have the right to intervene as parties.

(f) In any hearing seeking a certificate of innocence, the court may take judicial notice of prior sworn testimony or evidence admitted in the criminal or juvenile delinquency proceedings related to the convictions or adjudications which resulted in the alleged wrongful incarceration, if the petitioner was either represented by counsel at such prior proceedings or the right to counsel was knowingly waived.

(g) In order to obtain a certificate of innocence the petitioner must prove by a preponderance of evidence that: (1) the petitioner was convicted or adjudicated a delinquent of one or more felonies by the State of Illinois and subsequently sentenced, and has served all or any part of the sentence; (2)(A) the judgment of conviction or adjudication was reversed or vacated, and the charge dismissed or, if a new trial was ordered, either the petitioner was found not guilty at the new trial or the petitioner was not retried and the charge dismissed; or (B) the statute, or application thereof, on which the charge was based violated the Constitution of the United States or the State of Illinois; (3) the petitioner is innocent of one or more of the offenses for which he or she was convicted or adjudicated a delinquent or his or her acts or omissions for which he or she was convicted or adjudicated a delinquent did not constitute a felony or misdemeanor against the State; and (4) the petitioner did not by his or her own conduct voluntarily cause or bring about his or her conviction or juvenile delinquency adjudication.

(h) If the court finds that the petitioner is entitled to a judgment, it shall enter a certificate of innocence finding that the petitioner was innocent of one or more offenses for which he or she was convicted or adjudicated a delinquent. Upon entry of the certificate of innocence or pardon from the Governor stating that such pardon was issued on the ground of innocence of the crime for which he or she was convicted or adjudicated a delinquent, (1) the clerk of the court shall transmit a copy of the certificate of innocence to the clerk of the Court of Claims, together with the claimant's current address; and (2) the court shall enter an order expunging the record of arrest from the official records of the arresting authority and order that the records of the clerk of the circuit court and the Illinois State Police be sealed until further order of the court upon good cause shown or as otherwise provided herein, and the name of the defendant or respondent in a juvenile delinquency proceeding obliterated from the official index requested to be kept by the circuit court clerk under Section 16 of the Clerks of Courts Act in connection with the arrest and conviction or delinquency adjudication for the offense but the order shall not affect any index issued by the circuit court clerk before the entry of the order. The court shall enter the expungement order regardless of whether the petitioner has prior criminal convictions or delinquency adjudications. All records sealed by the Illinois State Police may be disseminated by the Department only as required by law or to the arresting authority, the State's Attorney, the court upon a later arrest for the same or similar offense, or for the purpose of sentencing for any subsequent felony. Upon conviction for any subsequent offense, the Department of Corrections shall have access to all sealed records of the Department pertaining to that individual. Upon entry of the order of expungement, the clerk of the circuit court shall promptly mail a copy of the order to the person whose records were expunged and sealed. The clerk shall post in the common areas of the courthouse a notice containing information about grants for exonerated persons and their dependents under Section 62 of the Higher Education Student Assistance Act, including the Internet address of the Illinois Student Assistance Commission. The Illinois Student Assistance Commission shall develop a uniform statewide notice and provide the format of the notice to each clerk.

(i) Any person seeking a certificate of innocence under this Section based on the dismissal of an indictment or information or acquittal that occurred before September 22, 2008 (the effective date of Public Act 95-970) shall file his or her petition within 2 years after September 22, 2008 (the effective date of Public Act 95-970). Any person seeking a certificate of innocence under this Section based on the dismissal of an indictment or information or acquittal that occurred on or after September 22, 2008 (the effective date of Public Act 95-970) shall file his or her petition within 2 years after the dismissal or acquittal. Any person seeking a certificate of innocence under this Section based on the dismissal of a juvenile delinquency petition or an acquittal on such petition that occurred before the effective date of this amendatory Act of the 104th General Assembly, including a petitioner whose petition was denied solely on the basis that this Section did not formerly apply to juvenile delinquency adjudications, shall file his or her petition within 4 years after the effective date of this amendatory Act of the 104th General Assembly. Any person seeking a certificate of innocence under this Section based on the dismissal of a juvenile delinquency petition or an acquittal on such petition that occurred on or after the effective date of this amendatory Act of the 104th General Assembly shall file his or her petition within 2 years after the dismissal or acquittal.

(j) The decision to grant or deny a certificate of innocence shall be binding only with respect to claims filed in the Court of Claims and shall not have a res judicata effect on any other proceedings.