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91_HB2344eng
HB2344 Engrossed LRB9104640RCcd
1 AN ACT to amend the Code of Criminal Procedure of 1963 by
2 changing Section 115-10.2.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Code of Criminal Procedure of 1963 is
6 amended by changing Section 115-10.2 as follows:
7 (725 ILCS 5/115-10.2)
8 Sec. 115-10.2. Hearsay exceptions; declarant
9 unavailable.
10 (a) Definition of unavailability. "Unavailability as a
11 witness" includes situations in which the declarant:
12 (1) is exempted by ruling of the court on the
13 ground of privilege from testifying concerning the
14 subject matter of the declarant's statement; or
15 (2) persists in refusing to testify concerning the
16 subject matter of the declarant's statement despite an
17 order of the court to do so; or
18 (3) testifies to a lack of memory of the subject
19 matter of the declarant's statement; or
20 (4) is unable to be present or to testify at the
21 hearing because of death or then existing physical or
22 mental illness or infirmity; or
23 (5) is absent from the hearing and the proponent of
24 a statement has been unable to procure the declarant's
25 attendance (or in the case of a hearsay exception under
26 subdivision (b)(2), (b)(3), or (b)(4), the declarant's
27 attendance or testimony) by process or other reasonable
28 means. A declarant is not unavailable as a witness if
29 exemption, refusal, claim of lack of memory, inability,
30 or absence is due to the procurement or wrongdoing of the
31 proponent of a statement for the purpose of preventing
HB2344 Engrossed -2- LRB9104640RCcd
1 the witness from attending or testifying.
2 (b) Hearsay exceptions. The following are not excluded
3 by the hearsay rule if the declarant is unavailable as a
4 witness:
5 (1) Former testimony. Testimony given as a witness
6 at another hearing of the same or a different proceeding,
7 or in a deposition taken in compliance with law in the
8 course of the same or another proceeding, if the party
9 against whom the testimony is now offered, or, in a civil
10 action or proceeding, a predecessor in interest, had an
11 opportunity and similar motive to develop the testimony
12 by direct, cross, or redirect examination.
13 (2) Statement under belief of impending death. In
14 a prosecution for first degree murder, second degree
15 murder, involuntary manslaughter, reckless homicide, or
16 drug induced homicide or in a civil action or proceeding,
17 a statement made by a declarant while believing that the
18 declarant's death was imminent, concerning the cause or
19 circumstances of what the declarant believed to be
20 impending death.
21 (3) Statement against interest. A statement that
22 was at the time of its making so far contrary to the
23 declarant's pecuniary or proprietary interest, or so far
24 tended to subject the declarant to civil or criminal
25 liability, or to render invalid a claim by the declarant
26 against another, that a reasonable person in the
27 declarant's position would not have made the statement
28 unless believing it to be true. A statement tending to
29 expose the declarant to criminal liability and offered to
30 exculpate the accused is not admissible unless
31 corroborating circumstances clearly indicate the
32 trustworthiness of the statement.
33 (4) Statement of personal or family history. (A) A
34 statement concerning the declarant's own birth, adoption,
HB2344 Engrossed -3- LRB9104640RCcd
1 marriage, divorce, legitimacy, relationship by blood,
2 adoption, or marriage, ancestry, or other similar fact of
3 personal or family history, even though the declarant had
4 no means of acquiring personal knowledge of the matter
5 stated; or (B) a statement concerning the foregoing
6 matters, and death also, of another person, if the
7 declarant was related to the other by blood, adoption, or
8 marriage or was so intimately associated with the other's
9 family as to be likely to have accurate information
10 concerning the matter declared.
11 (5) Other exceptions. A statement not specifically
12 covered by any of the foregoing exceptions but having
13 equivalent circumstantial guarantees of trustworthiness,
14 if the court determines that (A) the statement is offered
15 as evidence of a material fact; (B) the statement is more
16 probative on the point for which it is offered than any
17 other evidence that the proponent can procure through
18 reasonable efforts; and (C) the general purposes of this
19 Section and the interests of justice will best be served
20 by admission of the statement into evidence. However, a
21 statement may not be admitted under this exception unless
22 the proponent of it makes known to the adverse party
23 sufficiently in advance of the trial or hearing to
24 provide the adverse party with a fair opportunity to
25 prepare to meet it, the proponent's intention to offer
26 the statement and the particulars of it, including the
27 name and address of the declarant. Admissibility of prior
28 statements when witness refused to testify despite a
29 court order to testify.
30 (a) A statement not specifically covered by any other
31 hearsay exception but having equivalent circumstantial
32 guarantees of trustworthiness, is not excluded by the hearsay
33 rule if the declarant is unavailable as defined in subsection
34 (c) and if the court determines that:
HB2344 Engrossed -4- LRB9104640RCcd
1 (1) the statement is offered as evidence of a
2 material fact; and
3 (2) the statement is more probative on the point
4 for which it is offered than any other evidence which the
5 proponent can procure through reasonable efforts; and
6 (3) the general purposes of this Section and the
7 interests of justice will best be served by admission of
8 the statement into evidence.
9 (b) A statement may not be admitted under this exception
10 unless the proponent of it makes known to the adverse party
11 sufficiently in advance of the trial or hearing to provide
12 the adverse party with a fair opportunity to prepare to meet
13 it, the proponent's intention to offer the statement, and the
14 particulars of the statement, including the name and address
15 of the declarant.
16 (c) Unavailability as a witness is limited to the
17 situation in which the declarant persists in refusing to
18 testify concerning the subject matter of the declarant's
19 statement despite an order of the court to do so.
20 (d) A declarant is not unavailable as a witness if
21 exemption, refusal, claim or lack of memory, inability or
22 absence is due to the procurement or wrongdoing of the
23 proponent of a statement for purpose of preventing the
24 witness from attending or testifying.
25 (e) Nothing in this Section shall render a prior
26 statement inadmissible for purposes of impeachment because
27 the statement was not recorded or otherwise fails to meet the
28 criteria set forth in this Section.
29 (Source: P.A. 89-689, eff. 12-31-96.)
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