In an initiative spearheaded by former Chief Justice Thomas Fitzgerald, Illinois belatedly joined the vast majority of states by codifying its rules of evidence. The code takes effect January 1 and brings a few changes along with the new organizational scheme.
Associate Dean for Academic Affairs Ralph Ruebner of the John Marshall Law School in Chicago remembers his view of the state of Illinois's law on evidence in 1986, when he published his first edition of his treatise on criminal evidence in Illinois. "I was very critical back then that Illinois didn't have a code of evidence. It was very difficult for Illinois judges and lawyers to get through a trial without a code."
Critical no more, Ruebner says of the new Illinois Rules of Evidence, "Now we have supplied one. This is a wonderful result."
Ruebner acted as the reporter for the Special Com mittee on Illinois Evidence, appointed by the Illinois Supreme Court in November 2008, on the initiative of then Chief Justice Thomas Fitzgerald. As reported in the September 2008 issue of the IBJ, Fitzgerald said as he prepared to begin his term that he hoped the court might consider codifying Illinois's rules of evidence. Two years later, as Fitzgerald announced his premature retirement due to health issues, the court adopted the Illinois Rules of Evidence, effective January 1, 2011.
As Fitzgerald said at the outset of his term, until now, Illinois's rules of evidence have been scattered through statutes, case law, and supreme court rules. Lawyers and judges in state court proceedings have had to undertake tedious and time-consuming searches each time the need to identify a particular evidentiary rule arose.
Toward remedying that inefficiency, and at Fitzgerald's urging, on November 24, 2008, the supreme court appointed a 19-member Special Supreme Court Committee on Illinois Evidence, charging it with codifying the state's law of evidence. Chaired by Illinois Appellate Court Justice Donald C. Hudson, the committee met from December 2008 through October 2009, with many telephone calls and e-mails in between and thereafter, according to the committee's advisor, Professor Michael H. Graham of the University of Miami School of Law. Fitzgerald himself attended most of those meetings, Hudson said.
In February 2010, the committee released a 69-page draft code. It invited public comments on that draft and held public hearings in Chicago and Springfield in May. Several lawyers submitted written comments and testified as to concerns about specific provisions of the proposed code.
"After we held the public hearings and reviewed the testimony presented and written comments received, the committee met again, to revisit the rules in light of some of the public comments," said Hudson. "After some extensive discussion, we voted to amend the proposed rules."
The committee then submitted its revised draft as its recommendation to the court. On September 27, 2010, the court adopted the code as recommended.
The FRE model
With the court's adoption of the Illinois Rules of Evidence, Illinois joins 44 other jurisdictions that have approved evidentiary rules modeled on the Federal Rules of Evidence. Though Illinois's new rules differ in some respects from the federal rules, for lawyers' and judges' convenience and ease of reference, they follow the federal rules' topical outline and numerical sequence. The court has published the new rules on its website at http://www.state.il.us/court/SupremeCourt/Evidence/Evidence.asp. (For more about the interplay between the Illinois and federal rules, see Jeff Parness' column beginning on page 642.)
The new rules include as a preface several paragraphs of Committee Commentary, written by Justice Hudson as chair. In accordance with Fitzgerald's vision, the commentary explains, "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 commentary repeatedly states, "The Illinois Rules of Evidence permit the Illinois legislature to act in the future with respect to the law of evidence as long as the particular legislative enactment is not in conflict with an Illinois Supreme Court rule or an Illinois Supreme Court decision." Through numbered paragraphs, the commentary then pro vides a roadmap to the changes that the rules make.
Numbered paragraph (1) explains that, with two identified exceptions, the committee incorporated the current law of evidence in Illinois whenever the Illinois Supreme or Appellate Court had clearly spoken on a principle of evidentiary law within approximately the last half century. In numbered paragraph (2), the committee says that it avoided affecting the validity of existing statutes.
The committee then notes, in numbered paragraph (3), that it incorporated 14 modernizations into the rules where no conflict existed with Illinois statutes or recent supreme or appellate court decisions and where it determined that those modernizations were beneficial and either uniformly or almost uniformly accepted elsewhere. Hudson said the modernization issue sparked the most discussion from the committee members. "We wanted to be true to our charge to codi fy the law of evidence in Illinois, but in the course of our work, we determined that some basic rules had not been reviewed or revisited in decades."
As one example, Hudson said, the rule regarding examining a witness concerning a prior inconsistent statement had not been reexamined in more than a hundred years and appeared to the committee to be ripe for change. The commentary highlights that rule as new Ill R Evid 613(a), which provides that a prior inconsistent statement need not be shown to a witness prior to cross-examination on it, contrary to the holding in Illinois Central Railroad v Wade, 206 Ill 523, 69 NE 565 (1903).
This change, the committee found, was not controversial, would benefit Illinois trial proceedings, and was reflected in the federal rules and the rules of the 44 other surveyed jurisdictions. The committee identified and listed in that paragraph (3) other changes that it felt were equally uncontroversial and would, if adopted, likewise benefit trial practice in Illinois. "We incorporated those into our rules, as they would enable our courts to operate more efficiently and effectively and thereby expedite the trial process for lawyers, litigants, and judges," said Hudson. (Importantly, the rules codify the Frye standard for admitting expert testimony - for more, see LawPulse at page 614.)
Numbered paragraph (4) of the committee commentary identifies two changes to Illinois evidence law that the committee recommended. Those changes are in areas where the committee determined that the particular evidentiary principle had not been addressed by statute or by any recent decision of the Illinois Supreme Court and where any existing prior 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. Three rules fell into this category, the committee determined: Rules 405, 608, and 803(3).
As a result of the committee's changes pursuant to numbered paragraph (4), Rule 405, Methods of Proving Character, now includes opinion testimony along with reputation testimony as a method of proof in cases where character evidence is admissible. Rule 608, Evidence of Character Wit ness, also now permits opinion testimony with respect to character for truthfulness.
Rule 803(3), the hearsay exception with respect to statements of then existing mental, emotional, or physical condition, eliminates the requirements that the statements be made by declarants found unavailable to testify and that the trial court find a reasonable probability that the statements are truthful. Those requirements, the committee commentary explains, do not exist in any other jurisdiction.
In numbered paragraph (5) of the commentary, the committee notes that the new rules on hearsay exceptions remove the difference between civil and criminal business and public records in favor of the traditional and otherwise uniformly accepted division between business records (Rule 803(6)), and public records and reports (Rule 803(8)), both of which are equally applicable in civil and criminal cases. The committee has characterized this change as "structural," for SCR 236 had recognized this exception in civil cases and section 115 of the Code of Criminal Procedure (725 ILCS 5/115) had recognized it in criminal cases, except for medical records and police investigative records. The new rules retain the latter exception.
Rules in the statutes but not in the code
In numbered paragraph (6) of the commentary, the committee observes that there remain numerous statutes that relate to some extent to the law of evidence. The committee said it felt it "inappropriate, unnecessary, and unwise" to refer specifically to all of those statutes and that their validity remains unaffected by the promulgation of the new rules.
Former Illinois Appellate Justice Gino DiVito, who served on the committee, explains, "Codification of all of the statu tory provisions would have had the effect of freezing them. We didn't want to risk hampering in some way the General Assembly's prerogative to act."
DiVito accordingly cautions lawyers, "There are still some rules of evidence that are in the statutes but not in the Evidence Code. You'll need to know them."
The committee identified six instances where it either incorporated certain stat utes verbatim or cited them in the new rules' text. For example, Illinois Rule of Evidence 801(d)(1)(A), which defines a prior inconsistent statement that is not hearsay in a criminal case, incorporates most of the text of 725 ILCS 5/115-10.1. Similarly, Rule 801(d)(1)(B) incorporates 725 ILCS 5/115-12.
Says DiVito, "In that case, we virtually laid out the statute because it applies in all cases, not just those in which sex offenses are charged. We also wanted to make it clear that there's a difference between criminal and civil cases."
Finally, the committee states in numbered paragraph (7) of its commentary that in case of redundancy, the applicable rule of evidence and not other rules of the supreme court should be cited. In his own preface to the new edition of his handbook on Illinois evidence, Professor Graham sets forth the redundant rules and suggests that they are subject to repeal. For example, SCR 402(f) has been effectively replaced by Illinois Rule of Evidence 410, and SCR 238(a) and SCR 433 by Illinois Rules of Evidence 607 and 611(c).
The committee commentary also highlights certain rules that, after the hearings on its initial draft, it determined to reserve. For example, Rule 407, Post Occurrence Remedial Measures, is reserved.
Hudson noted that the supreme court granted review to a case that squarely presents that issue to the court, Jablonski v Ford Motor Co, No 110096. At press time, oral argument on that matter had been scheduled for November 18, 2010. Also reserved are two hearsay exceptions, Rules 803(1), Present Sense Impressions, and 803(18), Learned Treatises, because Illinois common law recognizes neither.
"Nobody got everything he wanted"
Hudson and the other committee members interviewed, as well as two lawyers who testified at the May hearings, praised the committee's work and the final result. Said Hudson, "Our draft was the result of a dynamic and interactive process. We first identified, reviewed, and thoroughly discussed all of the rules individually. We then sought to incorporate all existing rules into the code while avoiding affecting the validity of existing statutes."
Members' discussions about the committee's process also show that the meetings were only a small portion of the committee's uncompensated work. Ruebner, for example, who acted as the committee's reporter, speaks of preparing memos and reviewing the minutes of each meeting with senior attorney Marcia Meis of the Administrative Office of the Illinois Courts, who acted as liaison between the committee and the AOIC, to be sure that they accurately reflected the committee's deliberations.
Graham, too, speaks of much e-mail to-ing and fro-ing on rules and commentary revisions. Says Meis, "Everyone on the committee was integral to proofing and editing."
Former Illinois Appellate Justice Warren Wolfson, now dean of DePaul School of Law in Chicago, who also served on the committee, observed, "Nobody got everything he wanted." Ruebner, for example, said he would like to see Illinois do away with the Dead Man's Act. Agreeing with Ruebner, Chicago lawyer Bruce R. Pfaff said he would also have preferred to see official comments and citations after every rule.
Voicing concerns about the risks of inadvertent disclosure of privileged information in e-discovery, Steven Puiszis of Hinshaw and Culbertson's Chicago offices, who testified at the committee's Chicago hearing in May, said he would like to see Illinois adopt a functional analogue to FRE 502, Attorney-Client Privi lege and Work Product; Limitations on Waiver.
"It would dovetail nicely with new Illinois RPC 4.4(b), which requires a lawyer who receives information that was inadvertently produced to notify the producing party. All lawyers in Illinois, whether plaintiff or defense, need some protection against inadvertent waiver of privilege."
The committee did not make recommendations on those matters or include more comments because of the limited nature of its charge, Ruebner and Hudson said. But Wolfson pointed out, "The code isn't carved in stone. Things can always be corrected or changed." And, indeed, Puiszis said the Illinois Association of Defense Counsel has already submitted a proposed version of FRE 502 to the court's Rules Committee for its consideration.
Where to find the new rules
Ruebner, Graham, and DiVito have all published treatises and/or versions of the new rules. Ruebner's publications are listed on his faculty website at http://www.jmls.edu/directory/ruebner_ralph.shtml; Graham's are at http://www.law.miami.edu/facadmin/mgraham_pub.php?letter=G.
DiVito has made a color-coded comparison of Illinois's new rules and the Federal Rules of Evidence, along with his own commentary, available for free download in .pdf form on his firm website at http://www.tdrlawfirm.com/downloads/Illinois_Rules_of_Evidence_Color-Coded_Guide.pdf. Now that Illinois's rules of evidence are codified and readily accessible, Graham expresses a personal hope that the Illinois bar admission authorities will consider adding evidence to the subjects tested on the Illinois bar exam.
In the wake of the new rules, it's clear the court and not the legislature runs the show when it comes to evidence law, these scholars say.
Perhaps the most important of the Illinois Rules of Evidence is the very first one, Rule 101. Rule 101 provides in its entirety, "These rules govern proceedings in the courts of Illinois to the extent and with the exceptions stated in Rule 1101. A statutory rule of evidence is effective unless in conflict with a rule or a decision of the Illinois Supreme Court."
In its commentary, the Special Supreme Court Committee on Illinois Evidence said, "The Illinois Rules of Evidence are not intended to preclude the Illinois legislature from acting in the future with respect to the law of evidence in a manner that will not be in conflict with the Illinois Rules of Evidence, as reflected in Rule 101….[T]he Illinois Rules of Evidence permit the Illinois legislature to act in the future with respect to the law of evidence as long as the particular legislative enactment is not in conflict with an Illinois Supreme Court rule or an Illinois Supreme Court decision." (Committee Commentary, pp 1-2.)
Professor Michael H. Graham of the University of Miami School of Law, author of a leading treatise on Illinois evidence and advisor to the committee, observes that "by implication, in codifying the rules of evidence as rules of court procedure, the court has now made itself the primary authority with regard to evidence." As the accompanying article notes, the committee chose not to include or specifically reference all statutory provisions on evidence in the code because it believed that doing so would have had the effect of freezing them and, thus, would have limited the legislature's authority to modify them.
Professor Ann M. Lousin of The John Marshall Law School, who, starting in January 2011, will teach the only class at any law school on the Illinois Constitution, says, "I think the committee handled it very well with Rule 101." Lousin says that both state and federal supreme courts have long asserted their authority over the rules of evidence. With Rule 101, Lousin says, the court has made its stance on its authority clear: now the legislature may act with respect to evidentiary matters only to the extent that its legislation does not conflict with the court's own rules and decisions on evidence. Referring to her years as a staff member of the speaker of the Illinois House of Representatives, Lousin says, "I wish this had been in effect years ago when I worked for the legislature."
Lousin says Rule 101 doesn't eliminate overlapping authority among the branches of government over enacting new evidentiary authority. "I don't know where the bright line between the powers of one of the three branches of government and another is. This is a perfect example."
She doesn't think it would be a good idea for the supreme court to be the sole authority over evidence. "If we were to adopt a system where the supreme court were to create all of the rules of evidence and civil procedure, there would be no legislative input and no oversight.
"Certainly, there would be no input by the executive branch. The governor gets to see legislation before signing it into law. He doesn't get to see the court rules.
"So, if we were to turn the whole thing over to the supreme court, there would be no checks and balances and no input from the other two branches of government. But there is an overlap. Inevitably, then, there will be on occasion confusion over who has authority over what."
Lousin hopes that the supreme court will make it equally clear in its future opinions whether its decisions on evidentiary matters conflict with, and therefore supersede, the new code. "The court can adopt language that makes it absolutely crystal clear. Then nobody, including legislators and their staff members, would be bemused."