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What Are the Exceptions to Barring Hearsay in Court?When determining a matter as important as whether someone is guilty of a crime, the court needs to have confidence that the evidence is reliable. That is why courts mostly reject the admission of hearsay in a criminal case. Hearsay is testimony in court that is based on a statement from someone who is not appearing in court. Courts often consider hearsay unreliable because the person who is testifying does not have first-hand knowledge of the information and the source of the statement is not available to be cross-examined. Without viewing testimony from the hearsay source, the jury cannot get a sense of whether the source is reliable. However, the Illinois Rules of Evidence have several exceptions that allow for the admission of hearsay evidence. The exceptions fall under two categories:

  1. The Availability of the Declarant Is Immaterial: This means that the hearsay source’s testimony in court is not necessary to establish the information as reliable. For instance, a person is considered unlikely to have lied if they said something that would incriminate themselves or go against their self-interest. The source’s state of mind may also be relevant. A person may speak impulsively when they are excited, which means they may not have had time to consider lying. Finally, hearsay based on a matter of public record is considered reliable because the information can be verified.
  2. The Declarant Is Unavailable: The hearsay source may be unable to testify because they are dead, ill or suffering memory loss. Others may be exempted from having to testify, such as the alleged victim in a child abuse case. Just because a source is unable to testify does not mean that the court has to allow the hearsay as evidence. Statements from a previous trial may be allowed if the defendant had a chance to cross-examine the declarant at that trial. Courts will consider dying declarations, which are statements from someone who is deceased that were made when they knew they were dying. The court may also allow hearsay evidence from an unavailable witness if it believes the defendant committed wronging against the defendant with the intent to prevent testimony.

Contact a Crystal Lake, Illinois, Criminal Defense Attorney

A judge in a criminal case may have the discretion to decide whether testimony is hearsay and, if so, whether that hearsay falls under the exceptions. A McHenry County criminal defense lawyer at Botto Gilbert Lancaster, PC, will contest unreliable or hearsay evidence presented by the prosecution in your case. To schedule a free consultation, call 815-338-3838.

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How Do You Continue Your Health Insurance After Divorce?Divorce changes your life in many small ways that you do not consider when you start the process. Health insurance is a good example of this because spouses are commonly on the same insurance plan. You have little to worry about if your spouse was on your employer’s insurance plan. Your children can remain on your family plan, or you can switch to an individual plan if you do not have children. If you were on your spouse’s insurance plan, you may be able to receive insurance through your own employer. Your divorce makes you immediately eligible to enroll in or change your insurance plan. If health insurance through work is not an option, you have other options that you need to consider.

Continuation Coverage

Illinois law allows you to stay on your former spouse’s health insurance for a limited time. If you are younger than 55 at the time of your divorce, you can continue the coverage for two years. If you are older than 55, you can continue the coverage until you are eligible for Medicare. There are several requirements for receiving continuation coverage:

  • Your spouse’s insurance must be a group plan.
  • You have 30 days after your divorce judgment to notify your spouse’s employer of your intention to continue coverage.
  • You must pay the same premium as you would if you were an employee on the plan.

Continuation coverage is only a temporary solution and may be difficult to afford if you have a low income. However, it prevents a gap in your health insurance coverage and buys you time to come up with a long-term solution.

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Creditors Cannot Touch Your Workers’ Compensation SettlementSuffering an injury at work can put you in an immediate financial bind. Although you can receive disability benefits if you are unable to work, those benefits are only two-thirds of what you normally make. Your expenses also go up if you need continued medical treatment for your injury. Without adequate health insurance to cover your treatment, you could end up owing hundreds of thousands of dollars to doctors. Injured workers rely on receiving workers’ compensation benefits in order to pay these expenses, but sometimes the debts pile up too fast before the worker can receive payment. If you file for bankruptcy, will you be able to keep your workers’ compensation benefits? A recent Illinois Supreme Court ruling confirmed that money awarded or settled upon in a workers’ compensation case is protected during bankruptcy from the healthcare providers that treated the injuries related to the workers' compensation case.

Protection for Your Compensation

The Illinois Workers’ Compensation Act includes a section stating that creditors cannot seize a debtor’s workers’ compensation award or settlement. Illinois and federal courts have long recognized that this section of the law works as an exemption when someone files for bankruptcy. The total benefits received in a workers’ compensation case can be used to pay for:

  • Medical expenses
  • Missing wages
  • Wage differential compensation
  • Vocational training

Recent Case

In the case of In re Elena Hernandez, a woman had filed for Chapter 7 bankruptcy in 2016. Among her debts were $138,000 she owed to three medical practices that had treated an injury related to an ongoing workers’ compensation case. The woman listed her pending workers’ compensation claim as an asset and estimated its value at $31,000. She reached a settlement with her employer for approximately that amount two days after filing for bankruptcy. The three medical providers argued that the workers’ compensation settlement should not be exempt from them because of amendments made to the Illinois Workers’ Compensation Act in 2005. The revisions created new fee schedules for injuries and limited what providers could collect from employers. The providers claimed that the revisions created a new exception to the part of the act that exempted workers' compensation settlements from creditors.

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Holding a Gun Owner Liable for an Accidental ShootingStatistics on gun violence mostly focus on the number of deaths, but twice as many people are wounded by firearms. According to a recent study by the Everytown for Gun Safety Support Fund, more than 73,000 people are shot and injured in the U.S. each year. Shooting injuries can happen for a variety of reasons, including attempted homicides, self-inflicted wounds, and weapon malfunctions. It is also possible to be accidentally shot due to someone else’s negligence, for which you can receive personal injury compensation by filing a lawsuit.

Proving Liability

A person can be liable for causing an unintentional injury with their firearm, even if they do not face criminal charges. You will have a stronger case to hold someone liable if you can prove that the shooting was caused by negligence and not simply an accident. Examples of negligence by the gun owner includes:

  • Carrying or handling a firearm in a way that increases the risk of accidental discharge
  • Using a firearm while under the influence of drugs or alcohol
  • Pointing a firearm at someone without intending to fire

Gun owners are expected to exercise reasonable care when handling their weapons. Witnesses to the shooting can help you establish that the gun owner showed a lack of caution that put you at risk of being shot.

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What Can Skew the Results of Blood and Breath DUI Tests?Though not the only form of evidence in a case of driving under the influence, the results from a chemical sobriety test can strongly support the claim that you were legally intoxicated at the time of your arrest. Unlike observations of your behavior, courts view the blood or breath test results as objective evidence because they measure your blood alcohol concentration and detect illegal substances in your body that may have impaired you. However, testing above the BAC limit does not always mean that you were intoxicated. Your DUI defense attorney will look into possible reasons why the test results may be inaccurate.

Breath Tests

During a traffic stop, a police officer who suspects that you are intoxicated may ask you to provide a breath sample using a portable device, such as a Breathalyzer. Breath tests are quicker and easier than blood tests but are also more prone to error:

  • Residue from substances such a mouthwash and breath fresheners may have trace amounts of alcohol in them that skew the test results.
  • The presence of nearby chemicals such as paint or adhesives can cause false results.
  • The test uses hardware that must be regularly calibrated to ensure accuracy and software that may be vulnerable to glitches.
  • The officer should conduct the breath test multiple to see that the results are consistent.

Blood Test

A police officer is more likely to take a blood sample at the police station or a hospital if you are being treated for injuries. While a blood test is considered the more accurate chemical sobriety test, there is still a possibility of inaccuracies:

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