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. 12Unavailability as a witness includes circumstances in which13the declarant:14(1) is exempted by ruling of the court on the15ground of privilege from testifying concerning the16subject matter of the declarant's statement; or17(2) persists in refusing to testify concerning the18subject matter of the declarant's statement despite an19order of the court to do so; or20(3) testifies to a lack of memory of the subject21matter of the declarant's statement; or22(4) is unable to be present or to testify at the23hearing because of health or then existing physical or24mental illness or infirmity; or25(5) is absent from the hearing and the proponent of26the statement has been unable to procure the declarant's27attendance by process or other reasonable means; or28(6) is a crime victim as defined in Section 3 of29the Rights of Crime Victims and Witnesses Act and the30failure of the declarant to testify is caused by the31defendant's intimidation of the declarant as defined in32Section 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.".