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Illinois Finally Codifies Rules of Evidence

By Katerina Milenkovski, Litigation News Associate Editor – November 11, 2010

The Illinois Supreme Court recently adopted the state’s first codified rules of evidence. The rules will go into effect on January 1, 2011. The result of a two-year effort by the Special Supreme Court Committee on Illinois Evidence, the Illinois Rules of Evidence [PDF] codify evidentiary rules that previously were scattered throughout case law, statutes, and other rules.

How Things Used to Be Done
“It is so archaic the way we did things,” says Jeffrey J. Kroll, Chicago, a member of the ABA Section of Litigation’s Task Force on Expert Witness Code of Ethics. “Whenever an issue came up about a rule of evidence, it was dealt with through case law. So, different districts throughout the state could handle the same issue differently. There was no uniformity,” Kroll says.

“In most states, if you have a motion in limine, and you cite a rule of evidence, everyone knows what that rule stands for,” Kroll notes. “In Illinois, there was no rule to cite. You cited case law favorable to you. The other side cited case law favorable to it. The judge would then spend part of the day reading cases in order to rule on the motion, instead of finishing jury selection or opening statements,” he says.

“I have seen firsthand how you operate under both systems,” says U.S. District Judge Marvin E. Aspen, of the Northern District of Illinois, a former member of the Section of Litigation’s Council. “Before I went on the federal bench, I was a state court judge and I also taught evidence at Northwestern Law School. By adopting rules of evidence, it is like Illinois is coming in from the dark ages.” Adds Aspen, “in the old days, before computers, lawyers had big notebooks with categories, such as ‘attorney-client privilege,’ and case citations for each category. When making an objection, they would give the judge a citation, or preferably a copy of the case. It was not a very efficient process, for the lawyers or the judges.”

“I have one of those notebooks,” says Kroll. “I started it early in my practice and updated it as cases came down. If you were a young lawyer or someone new to the state, you were at a huge disadvantage if you didn’t have such a notebook.”

When asked why formal rules of evidence had never been adopted before in Illinois, both Kroll and Aspen posit that attorneys who knew the system may have had no incentive to abandon it. “I think it’s a combination of maybe legislative lethargy and lawyers invested in the old system being reluctant to make changes,” says Aspen. “It is not unlike that joke, something about ‘a good lawyer knows the rules, a better lawyer knows the cases, and the best lawyer knows the judges,’” jokes Kroll. “In Illinois, experience really did matter.”

Several Key Differences Remain
The rules are not intended to change the existing law; rather, they are an attempt by the committee to collect and codify the existing case law and other authorities into one comprehensive code.      Although the new rules will bring Illinois in line with most of the rest of the country, there are still key differences.

One of the most notable differences is that Illinois adheres to the Frye [PDF] test, rather than the Daubert standard for expert opinion testimony. Further, Rule 407, on subsequent remedial measures, has been “reserved” due to conflicts in appellate court decision. “The exceptions were swallowing up the rule,” observes Kroll. “The committee is waiting to see how the Illinois Supreme Court addresses subsequent remedial measures in a case that is pending before it.” Rules 803(1) and 803(18), dealing with present sense impression and learned treatise hearsay exceptions, are also reserved because Illinois common law does not recognize either exception.

“Ultimately, having codified rules of evidence is going to make things a lot easier for practitioners,” adds Kroll.

Keywords: Illinois, Rules of Evidence, Frye, Daubert, remedial measures


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