093_HB0563sam002

 










                                     LRB093 05561 RLC 16392 a

 1                     AMENDMENT TO HOUSE BILL 563

 2        AMENDMENT NO.     .  Amend House Bill  563  by  replacing
 3    everything after the enacting clause with the following:

 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.
 
                            -2-      LRB093 05561 RLC 16392 a
 1        (b)  A statement may not be admitted under this exception
 2    unless the proponent of it makes known to the  adverse  party
 3    sufficiently  in  advance  of the trial or hearing to provide
 4    the adverse party with a fair opportunity to prepare to  meet
 5    it, the proponent's intention to offer the statement, and the
 6    particulars  of the statement, including the name and address
 7    of the declarant.
 8        (c)  Unavailability  as  a  witness  is  limited  to  the
 9    situation in which the  declarant  persists  in  refusing  to
10    testify  concerning  the  subject  matter  of the declarant's
11    statement  despite  an  order  of  the  court   to   do   so.
12    Unavailability  as  a witness includes circumstances in which
13    the declarant:
14             (1)  is exempted by  ruling  of  the  court  on  the
15        ground   of  privilege  from  testifying  concerning  the
16        subject matter of the declarant's statement; or
17             (2)  persists in refusing to testify concerning  the
18        subject  matter  of  the declarant's statement despite an
19        order of the court to do so; or
20             (3)  testifies to a lack of memory  of  the  subject
21        matter of the declarant's statement; or
22             (4)  is  unable  to  be present or to testify at the
23        hearing because of health or then  existing  physical  or
24        mental illness or infirmity; or
25             (5)  is absent from the hearing and the proponent of
26        the  statement has been unable to procure the declarant's
27        attendance by process or other reasonable means; or
28             (6)  is a crime victim as defined in  Section  3  of
29        the  Rights  of  Crime  Victims and Witnesses Act and the
30        failure of the declarant to  testify  is  caused  by  the
31        defendant's  intimidation  of the declarant as defined in
32        Section 12-6 of the Criminal Code of 1961.
33        (d)  A declarant is  not  unavailable  as  a  witness  if
34    exemption,  refusal,  claim  or  lack of memory, inability or
 
                            -3-      LRB093 05561 RLC 16392 a
 1    absence is due  to  the  procurement  or  wrongdoing  of  the
 2    proponent  of  a  statement  for  purpose  of  preventing the
 3    witness from attending or testifying.
 4        (e)  Nothing  in  this  Section  shall  render  a   prior
 5    statement  inadmissible  for  purposes of impeachment because
 6    the statement was not recorded or otherwise fails to meet the
 7    criteria set forth in this Section.
 8    (Source: P.A. 89-689, eff. 12-31-96; 93HB2526enrolled.)

 9        Section 10. The Code of Criminal  Procedure  of  1963  is
10    amended by adding Section 115-10.2a as follows:

11        (725 ILCS 5/115-10.2a new)
12        Sec.  115-10.2a.  Admissibility  of  prior  statements in
13    domestic  violence   prosecutions   when   the   witness   is
14    unavailable to testify.
15        (a)  In  a  domestic  violence  prosecution, a statement,
16    made by an  individual  identified  in  Section  201  of  the
17    Illinois  Domestic Violence Act of 1986 as a person protected
18    by that Act, that is not specifically covered  by  any  other
19    hearsay   exception   but  having  equivalent  circumstantial
20    guarantees of trustworthiness, is not excluded by the hearsay
21    rule if the declarant is identified as unavailable as defined
22    in subsection (c) and if the court determines that:
23                  (1)  the statement is offered as evidence of  a
24        material fact; and
25                  (2)  the  statement  is  more  probative on the
26        point for which it is offered  than  any  other  evidence
27        which   the  proponent  can  procure  through  reasonable
28        efforts; and
29                  (3)  the general purposes of this  Section  and
30        the interests of justice will best be served by admission
31        of the statement into evidence.
32        (b)  A statement may not be admitted under this exception
 
                            -4-      LRB093 05561 RLC 16392 a
 1    unless  the  proponent of it makes known to the adverse party
 2    sufficiently in advance of the trial or  hearing  to  provide
 3    the  adverse party with a fair opportunity to prepare to meet
 4    it, the proponent's intention to offer the statement, and the
 5    particulars of the statement, including the name and  address
 6    of the declarant.
 7        (c)  Unavailability  as  a witness includes circumstances
 8    in which the declarant:
 9             (1)  is exempted by  ruling  of  the  court  on  the
10        ground   of  privilege  from  testifying  concerning  the
11        subject matter of the declarant's statement; or
12             (2)  persists in refusing to testify concerning  the
13        subject  matter  of  the declarant's statement despite an
14        order of the court to do so; or
15             (3)  testifies to a lack of memory  of  the  subject
16        matter of the declarant's statement; or
17             (4)  is  unable  to  be present or to testify at the
18        hearing because of health or then  existing  physical  or
19        mental illness or infirmity; or
20             (5)  is absent from the hearing and the proponent of
21        the  statement has been unable to procure the declarant's
22        attendance by process or other reasonable means; or
23             (6)  is a crime victim as defined in  Section  3  of
24        the  Rights  of  Crime  Victims and Witnesses Act and the
25        failure of the declarant to  testify  is  caused  by  the
26        defendant's  intimidation  of the declarant as defined in
27        Section 12-6 of the Criminal Code of 1961.
28        (d)  A declarant is  not  unavailable  as  a  witness  if
29    exemption,  refusal,  claim  of lack of memory, inability, or
30    absence is due  to  the  procurement  or  wrongdoing  of  the
31    proponent  of  a  statement  for  purpose  of  preventing the
32    witness from attending or testifying.
33        (e)  Nothing  in  this  Section  shall  render  a   prior
34    statement  inadmissible  for  purposes of impeachment because
 
                            -5-      LRB093 05561 RLC 16392 a
 1    the statement was not recorded or otherwise fails to meet the
 2    criteria set forth in this Section.

 3        Section 99.  Effective date. This Act takes  effect  upon
 4    becoming law.".