093_HB0563enr

 
HB0563 Enrolled                      LRB093 05561 MBS 05653 b

 1        AN ACT in relation to criminal law.

 2        Be it enacted by the People of  the  State  of  Illinois,
 3    represented in the General Assembly:

 4        Section  5.  If  and  only if House Bill 2526 of the 93rd
 5    General Assembly becomes law, the Code of Criminal  Procedure
 6    of 1963 is amended by changing Section 115-10.2 as follows:

 7        (725 ILCS 5/115-10.2)
 8        Sec.  115-10.2.  Admissibility  of  prior statements when
 9    witness refused to testify despite a court order to testify.
10        (a)  A statement not specifically covered  by  any  other
11    hearsay   exception   but  having  equivalent  circumstantial
12    guarantees of trustworthiness, is not excluded by the hearsay
13    rule if the declarant is unavailable as defined in subsection
14    (c) and if the court determines that:
15             (1)  the statement  is  offered  as  evidence  of  a
16        material fact; and
17             (2)  the  statement  is  more probative on the point
18        for which it is offered than any other evidence which the
19        proponent can procure through reasonable efforts; and
20             (3)  the general purposes of this  Section  and  the
21        interests  of justice will best be served by admission of
22        the statement into evidence.
23        (b)  A statement may not be admitted under this exception
24    unless the proponent of it makes known to the  adverse  party
25    sufficiently  in  advance  of the trial or hearing to provide
26    the adverse party with a fair opportunity to prepare to  meet
27    it, the proponent's intention to offer the statement, and the
28    particulars  of the statement, including the name and address
29    of the declarant.
30        (c)  Unavailability  as  a  witness  is  limited  to  the
31    situation in which the  declarant  persists  in  refusing  to
 
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 1    testify  concerning  the  subject  matter  of the declarant's
 2    statement  despite  an  order  of  the  court   to   do   so.
 3    Unavailability  as  a witness includes circumstances in which
 4    the declarant:
 5             (1)  is exempted by  ruling  of  the  court  on  the
 6        ground   of  privilege  from  testifying  concerning  the
 7        subject matter of the declarant's statement; or
 8             (2)  persists in refusing to testify concerning  the
 9        subject  matter  of  the declarant's statement despite an
10        order of the court to do so; or
11             (3)  testifies to a lack of memory  of  the  subject
12        matter of the declarant's statement; or
13             (4)  is  unable  to  be present or to testify at the
14        hearing because of health or then  existing  physical  or
15        mental illness or infirmity; or
16             (5)  is absent from the hearing and the proponent of
17        the  statement has been unable to procure the declarant's
18        attendance by process or other reasonable means; or
19             (6)  is a crime victim as defined in  Section  3  of
20        the  Rights  of  Crime  Victims and Witnesses Act and the
21        failure of the declarant to  testify  is  caused  by  the
22        defendant's  intimidation  of the declarant as defined in
23        Section 12-6 of the Criminal Code of 1961.
24        (d)  A declarant is  not  unavailable  as  a  witness  if
25    exemption,  refusal,  claim  or  lack of memory, inability or
26    absence is due  to  the  procurement  or  wrongdoing  of  the
27    proponent  of  a  statement  for  purpose  of  preventing the
28    witness from attending or testifying.
29        (e)  Nothing  in  this  Section  shall  render  a   prior
30    statement  inadmissible  for  purposes of impeachment because
31    the statement was not recorded or otherwise fails to meet the
32    criteria set forth in this Section.
33    (Source: P.A. 89-689, eff. 12-31-96; 93HB2526enrolled.)
 
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 1        Section 10. The Code of Criminal  Procedure  of  1963  is
 2    amended by adding Section 115-10.2a as follows:

 3        (725 ILCS 5/115-10.2a new)
 4        Sec.  115-10.2a.  Admissibility  of  prior  statements in
 5    domestic  violence   prosecutions   when   the   witness   is
 6    unavailable to testify.
 7        (a)  In  a  domestic  violence  prosecution, a statement,
 8    made by an  individual  identified  in  Section  201  of  the
 9    Illinois  Domestic Violence Act of 1986 as a person protected
10    by that Act, that is not specifically covered  by  any  other
11    hearsay   exception   but  having  equivalent  circumstantial
12    guarantees of trustworthiness, is not excluded by the hearsay
13    rule if the declarant is identified as unavailable as defined
14    in subsection (c) and if the court determines that:
15                  (1)  the statement is offered as evidence of  a
16        material fact; and
17                  (2)  the  statement  is  more  probative on the
18        point for which it is offered  than  any  other  evidence
19        which   the  proponent  can  procure  through  reasonable
20        efforts; and
21                  (3)  the general purposes of this  Section  and
22        the interests of justice will best be served by admission
23        of the statement into evidence.
24        (b)  A statement may not be admitted under this exception
25    unless  the  proponent of it makes known to the adverse party
26    sufficiently in advance of the trial or  hearing  to  provide
27    the  adverse party with a fair opportunity to prepare to meet
28    it, the proponent's intention to offer the statement, and the
29    particulars of the statement, including the name and  address
30    of the declarant.
31        (c)  Unavailability  as  a witness includes circumstances
32    in which the declarant:
33             (1)  is exempted by  ruling  of  the  court  on  the
 
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 1        ground   of  privilege  from  testifying  concerning  the
 2        subject matter of the declarant's statement; or
 3             (2)  persists in refusing to testify concerning  the
 4        subject  matter  of  the declarant's statement despite an
 5        order of the court to do so; or
 6             (3)  testifies to a lack of memory  of  the  subject
 7        matter of the declarant's statement; or
 8             (4)  is  unable  to  be present or to testify at the
 9        hearing because of health or then  existing  physical  or
10        mental illness or infirmity; or
11             (5)  is absent from the hearing and the proponent of
12        the  statement has been unable to procure the declarant's
13        attendance by process or other reasonable means; or
14             (6)  is a crime victim as defined in  Section  3  of
15        the  Rights  of  Crime  Victims and Witnesses Act and the
16        failure of the declarant to  testify  is  caused  by  the
17        defendant's  intimidation  of the declarant as defined in
18        Section 12-6 of the Criminal Code of 1961.
19        (d)  A declarant is  not  unavailable  as  a  witness  if
20    exemption,  refusal,  claim  of lack of memory, inability, or
21    absence is due  to  the  procurement  or  wrongdoing  of  the
22    proponent  of  a  statement  for  purpose  of  preventing the
23    witness from attending or testifying.
24        (e)  Nothing  in  this  Section  shall  render  a   prior
25    statement  inadmissible  for  purposes of impeachment because
26    the statement was not recorded or otherwise fails to meet the
27    criteria set forth in this Section.

28        Section 99.  Effective date. This Act takes  effect  upon
29    becoming law.