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91_HB2344
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 unavailable
9 (a) Definition of unavailability. "Unavailability as a
10 witness" includes situations in which the declarant:
11 (1) is exempted by ruling of the court on the
12 ground of privilege from testifying concerning the
13 subject matter of the declarant's statement; or
14 (2) persists in refusing to testify concerning the
15 subject matter of the declarant's statement despite an
16 order of the court to do so; or
17 (3) testifies to a lack of memory of the subject
18 matter of the declarant's statement; or
19 (4) is unable to be present or to testify at the
20 hearing because of death or then existing physical or
21 mental illness or infirmity; or
22 (5) is absent from the hearing and the proponent of
23 a statement has been unable to procure the declarant's
24 attendance (or in the case of a hearsay exception under
25 subdivision (b)(2), (b)(3), or (b)(4), the declarant's
26 attendance or testimony) by process or other reasonable
27 means. A declarant is not unavailable as a witness if
28 exemption, refusal, claim of lack of memory, inability,
29 or absence is due to the procurement or wrongdoing of the
30 proponent of a statement for the purpose of preventing
31 the witness from attending or testifying.
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1 (b) Hearsay exceptions. The following are not excluded
2 by the hearsay rule if the declarant is unavailable as a
3 witness:
4 (1) Former testimony. Testimony given as a witness
5 at another hearing of the same or a different proceeding,
6 or in a deposition taken in compliance with law in the
7 course of the same or another proceeding, if the party
8 against whom the testimony is now offered, or, in a civil
9 action or proceeding, a predecessor in interest, had an
10 opportunity and similar motive to develop the testimony
11 by direct, cross, or redirect examination.
12 (2) Statement under belief of impending death. In
13 a prosecution for first degree murder, second degree
14 murder, involuntary manslaughter, reckless homicide, or
15 drug induced homicide or in a civil action or proceeding,
16 a statement made by a declarant while believing that the
17 declarant's death was imminent, concerning the cause or
18 circumstances of what the declarant believed to be
19 impending death.
20 (3) Statement against interest. A statement that
21 was at the time of its making so far contrary to the
22 declarant's pecuniary or proprietary interest, or so far
23 tended to subject the declarant to civil or criminal
24 liability, or to render invalid a claim by the declarant
25 against another, that a reasonable person in the
26 declarant's position would not have made the statement
27 unless believing it to be true. A statement tending to
28 expose the declarant to criminal liability and offered to
29 exculpate the accused is not admissible unless
30 corroborating circumstances clearly indicate the
31 trustworthiness of the statement.
32 (4) Statement of personal or family history. (A) A
33 statement concerning the declarant's own birth, adoption,
34 marriage, divorce, legitimacy, relationship by blood,
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1 adoption, or marriage, ancestry, or other similar fact of
2 personal or family history, even though the declarant had
3 no means of acquiring personal knowledge of the matter
4 stated; or (B) a statement concerning the foregoing
5 matters, and death also, of another person, if the
6 declarant was related to the other by blood, adoption, or
7 marriage or was so intimately associated with the other's
8 family as to be likely to have accurate information
9 concerning the matter declared.
10 (5) Other exceptions. A statement not specifically
11 covered by any of the foregoing exceptions but having
12 equivalent circumstantial guarantees of trustworthiness,
13 if the court determines that (A) the statement is offered
14 as evidence of a material fact; (B) the statement is more
15 probative on the point for which it is offered than any
16 other evidence that the proponent can procure through
17 reasonable efforts; and (C) the general purposes of this
18 Section and the interests of justice will best be served
19 by admission of the statement into evidence. However, a
20 statement may not be admitted under this exception unless
21 the proponent of it makes known to the adverse party
22 sufficiently in advance of the trial or hearing to
23 provide the adverse party with a fair opportunity to
24 prepare to meet it, the proponent's intention to offer
25 the statement and the particulars of it, including the
26 name and address of the declarant. Admissibility of prior
27 statements when witness refused to testify despite a
28 court order to testify.
29 (a) A statement not specifically covered by any other
30 hearsay exception but having equivalent circumstantial
31 guarantees of trustworthiness, is not excluded by the hearsay
32 rule if the declarant is unavailable as defined in subsection
33 (c) and if the court determines that:
34 (1) the statement is offered as evidence of a
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1 material fact; and
2 (2) the statement is more probative on the point
3 for which it is offered than any other evidence which the
4 proponent can procure through reasonable efforts; and
5 (3) the general purposes of this Section and the
6 interests of justice will best be served by admission of
7 the statement into evidence.
8 (b) A statement may not be admitted under this exception
9 unless the proponent of it makes known to the adverse party
10 sufficiently in advance of the trial or hearing to provide
11 the adverse party with a fair opportunity to prepare to meet
12 it, the proponent's intention to offer the statement, and the
13 particulars of the statement, including the name and address
14 of the declarant.
15 (c) Unavailability as a witness is limited to the
16 situation in which the declarant persists in refusing to
17 testify concerning the subject matter of the declarant's
18 statement despite an order of the court to do so.
19 (d) A declarant is not unavailable as a witness if
20 exemption, refusal, claim or 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 (Source: P.A. 89-689, eff. 12-31-96.)