¶1dissenting:
¶2I respectfully dissent.
¶3The majority has decided to place emphasis on the purpose of the exclusionary rule in its analysis of whether or not the amended version of the eavesdropping statute (720 ILCS 5/14 — 1(a) (West 1998)) applies to this case. Such an analysis is not appropriate in considering whether the prior statute or the amended statute applies.
¶4Our supreme court held in First of America Trust Co. v. Armstead, 171 Ill. 2d 282 (1976), that where no vested rights are involved an amendment can be applied to the existing controversy. As the majority acknowledges, the supreme court in First of America Trust held that the law in effect at the time of the appeal should be applied unless doing so would interfere with a vested right. There was no suggestion by the supreme court that it was referring to the vested right of a nonparty to the controversy.
¶5The majority determines the amendment cannot be applied because the application of the amendment affects the vested right of a State witness (Carrion). I have difficulty understanding why this court should look to a witness’s interest. I am unaware of any case that supports such a theory. To hold that our decision affects or applies to the witness (Carrion) has no merit. She is not a party; she is not a defendant; she is a witness.
¶6As the majority recognizes, when the application of an amended act adversely affects a vested right of a party or when such application offends the basic notions of due process, the Illinois Constitution prohibits its application.
¶7If there was merit to the proposition that the witness’s interest must be considered, it is clear the law in effect at the time of her act is the law that applies to her conduct. She is protected by the Illinois and United States Constitutions. In the truest sense, she stands under the protective umbrella of ex post facto. Therefore, even if we were to consider the witness’s interest, there is no disadvantage to the witness.
¶8I would hold, in following First of America Trust, that the law in effect at the time of the second trial should have been applied and therefore the tapes should have been excluded. Accordingly, I would reverse and remand for a new trial.