Public Act 93-0443

HB0563 Enrolled                      LRB093 05561 MBS 05653 b

    AN ACT in relation to criminal law.

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

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

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

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

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