Senate Committee Substitute

SCS/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 or substantially contributed to cause 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 or acquiesced in 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 a provision in the truly agreed to and finally passed CCS/HCS/SS/SCS/SBs 53 & 60 (2021) and to HCS/HB 548 (2021) and similar to HB 2 (First Extraordinary Session 2020), SB 4 (First Extraordinary Session 2020), and HCS/HB 1964 (2020).


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