SB 402 - This act provides that a statement made by a witness, which would otherwise not be admissible, is admissible as substantive evidence when the court finds by a preponderance of evidence that:

• The defendant engaged in or acquiesced to wrongdoing with the intent of causing the unavailability of the witness;

• The wrongdoing in which the defendant engaged or acquiesced to has caused the unavailability of the witness;

• The state exercised due diligence to secure by subpoena or other means the attendance of the witness, or the witness is unavailable because the defendant caused the death of the witness; and

• The witness fails to appear at the proceeding.

Additionally, this act provides that in a jury trial, the hearing and finding to determine the admissibility of the statement shall be held and found outside the presence of the jury and before the case is submitted to the jury.

This act is identical to HB 2 (First Extraordinary Session 2020) and similar to SB 4 (First Extraordinary Session 2020) and HCS/HB 1964 (2020).


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