Illinois Rules Of Evidence: A Practitioner’s Dream Now A Reality
January, 2011
by Michael R. Grimm and Timothy R. Herman
Introduction
On January 1, 2011, the Illinois Rules of Evidence ("the Rules") became effective. Before the Rules were created by the 19-member Special Committee on Illinois Evidence ("the Special Committee"), Illinois evidence rules were scattered throughout various Illinois Supreme Court rules, case law, and statutes. The Illinois Supreme Court adopted the Rules on September 27, 2010 after the Special Committee spent nearly two years drafting and amending the Rules.
Purpose for the Illinois Rules of Evidence
The Special Committee on Illinois Evidence was appointed by the Illinois Supreme Court in November 2008 at the insistence of former Chief Justice Thomas Fitzgerald. Illinois joins forty-four other jurisdictions that have rules of evidence modeled after the Federal Rules of Evidence. The Committee Commentary to the Rules states that, "having all of the basic rules of evidence in one easily accessible, authoritative source will substantially increase the efficiency of the trial process as well as expedite the resolution of cases on trial for the benefit of the practicing bar, the judiciary, and the litigants involved."
The Rules are not intended to abrogate or supersede any current statutory rules of evidence. However, the Rules were created with the following principles in mind:
(1) Codification: The Special Committee incorporated the current law of Illinois evidentiary principles.
(2) Statutes: The Rules avoid affecting the validity of existing statutes and explicitly permit the Illinois legislature to act in the future with respect to the law of evidence.
(3) Modernization: The Special Committee incorporated fourteen uncontroversial developments into the Rules where it was uniformly accepted in other surveyed jurisdictions and where there was no conflict with any Illinois statute or recent Illinois Supreme Court or Illinois Appellate Court decision.
(4) Recommendations: The Special Committee recommended a limited number of changes where the evidentiary principle had not been previously addressed and where Illinois law either did not properly reflect evidentiary policy considerations or raised practical problems of application in light of modern developments and other evidence rules.
(5) Structural Changes: The Special Committee removed the difference between civil and criminal business and public records in favor of the division between business records, Rule 803(6) and public records and reports, Rule 803(8), which are applicable in both civil and criminal cases.
Features of the Rules
Although some practitioners would have preferred to see official comments and citations after every rule, the Special Committee included specific comments after only four of the rules. However, practitioners should refer to these comments and the Committee Commentary to further explain the substance of the Rules.
Rule 101 provides that the Rules are effective unless in conflict with an Illinois Supreme Court Rule or decision. Thus, Illinois practitioners should continue to monitor future decisions by the Illinois Supreme Court to determine if the decision is intended to supersede one of the Rules.
Another important feature of the Rules is included in the comment to Rule 702 (Testimony by Experts). The comment explicitly confirms that Illinois continues to be a Frye state (commonly referred to as the "general acceptance test"), as set forth in Donaldson v. Cent. Ill. Pub. Serv. Co., 199 Ill. 2d 63 (2002). The second sentence in Rule 702 states that "[w]here an expert witness testifies to an opinion based on a new or novel scientific methodology or principle, the proponent of the opinion has the burden of showing the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs." Thus, the Frye standard applies only to scientific methodologies that are new or novel. Illinois continues to differ from the Federal Rules of Evidence, which utilize a lower threshold than Illinois for the introduction of new or novel scientific evidence. Federal courts apply Daubert, where the expert evidence presented need only (1) be "scientific knowledge" and (2) "assist the trier of fact to understand or determine a fact in issue."
The Special Committee recommended two specific changes in the Rules compared to prior Illinois law. Opinion evidence is added to reputational testimony as a method of proof in Rule 405, when character evidence is admissible, and in Rule 608 with respect to character for truthfulness. Before the creation of the Rules, proof was only allowed by reputational evidence and not opinion evidence. Additionally, the hearsay exception under Rule 803(3) eliminates the requirement, with respect to statements of then existing mental, emotional, or physical conditions, that the statement be made by a declarant found unavailable to testify, and that the trial court find that there is a "reasonable probability" that the statement is truthful. The Committee found that the requirements did not exist in other jurisdictions.
The Rules temporarily reserve Rule 407 dealing with subsequent remedial measures until the Illinois Supreme Court decides a pending case, Jablonski v. Ford Motor Co., No. 110096. Illinois Appellate Courts are in conflict concerning a core issue under review in the case. Also reserved are two hearsay exceptions, Rules 801(1) (Present Sense Impressions) and 803(18) (Learned Treatises), because Illinois common law does not recognize either exception.
Illinois civil practitioners must still be aware of various statutes relating to Illinois evidentiary principles that are not explicitly set forth in the Rules. The Special Committee said it was "inappropriate, unnecessary, and unwise" to specifically refer to all of those statutes that are unaffected by the creation of the Rules. The Special Committee did not want to risk interfering with the Illinois General Assembly's prerogative to act in the future.
Conclusion
After January 1, 2011, Illinois practitioners will be guided by the Illinois Rules of Evidence. Although practitioners will now be able to use the Rules in pleadings and at trial, previous Illinois Supreme Court and Appellate Court decisions can still be utilized to further explain certain Illinois evidentiary arguments and principles. For Illinois trial attorneys, the Rules could not have come soon enough. The dream is now a reality.
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