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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 prior28statements when witness refused to testify despite a29court order to testify.30(a) A statement not specifically covered by any other31hearsay exception but having equivalent circumstantial32guarantees of trustworthiness, is not excluded by the hearsay33rule if the declarant is unavailable as defined in subsection34(c) and if the court determines that:HB2344 Engrossed -4- LRB9104640RCcd 1(1) the statement is offered as evidence of a2material fact; and3(2) the statement is more probative on the point4for which it is offered than any other evidence which the5proponent can procure through reasonable efforts; and6(3) the general purposes of this Section and the7interests of justice will best be served by admission of8the statement into evidence.9(b) A statement may not be admitted under this exception10unless the proponent of it makes known to the adverse party11sufficiently in advance of the trial or hearing to provide12the adverse party with a fair opportunity to prepare to meet13it, the proponent's intention to offer the statement, and the14particulars of the statement, including the name and address15of the declarant.16(c) Unavailability as a witness is limited to the17situation in which the declarant persists in refusing to18testify concerning the subject matter of the declarant's19statement despite an order of the court to do so.20(d) A declarant is not unavailable as a witness if21exemption, refusal, claim or lack of memory, inability or22absence is due to the procurement or wrongdoing of the23proponent of a statement for purpose of preventing the24witness from attending or testifying.25(e) Nothing in this Section shall render a prior26statement inadmissible for purposes of impeachment because27the statement was not recorded or otherwise fails to meet the28criteria set forth in this Section.29 (Source: P.A. 89-689, eff. 12-31-96.)