Publications

Articles on Evidence

Getting Access to Social Media Evidence

By Professor Richard S. Kling, Khalid Hasan, and Martin D. Gould
December
2017
Article
Page 24
Social media content is a trove of potentially powerful evidence. How do you maximize your prospects for getting access to it? The authors explain how to use discovery and other means to obtain social media postings.

Illegal Stops and the Exclusionary Rule after Utah v. Strieff

By Julia Kaye Wykoff
December
2017
Article
Page 32
In Utah v. Strieff, the police stopped a suspect illegally but discovered there was a warrant for his arrest. The U.S. Supreme Court ruled that evidence found during the subsequent search was admissible despite the illegal stop thanks to the discovery of the warrant. This article reviews the implications of Strieff for prosecutors and defense lawyers.

From the Newsletters - Is a stipulation to facts an ‘admission’ after all?

October
2017
Article
Page 39
A stipulation to facts in a criminal case is not an admission for purposes of a subsequent civil trial. Right? Not so fast, this author says.

Ethics and Social Media

By Richard S. Kling, Khalid Hasan, and Martin D. Gould
August
2017
Article
Page 30
Social media is a trove of potential evidence, but lawyers must be mindful of ethical limits before attempting to get and use it. This article looks at the small body of law and advisory opinions applicable to social media evidence and related issues.

People v. Thompson New Rule for Identifying Defendants in Video Recording

By John M. Zimmerman
June
2017
Article
Page 36
Thompson makes it easier for witnesses to provide lay opinion indentification testimony based on reviewing a recording. This article discusses the case's implications.

Pitfalls in Proving Proximate Cause

By Judge James M. Varga
April
2017
Article
Page 44
A p.i. plaintiff's path to proving proximate cause is rarely a cakewalk. Other possible causes and potential tortfeasors pose challenges for plaintiffs and create opportunities for defendants.

From the Newsletters - 10 Things Trial Lawyers Should Know About Social Media Evidence

February
2017
Article
Page 40
The law has been slow to catch up with social media's all-encompassing reach. Here are things to keep in mind, especially - but not exclusively - if you represent plaintiffs in litigation.

Hospital Consolidation Gives New Meaning to an Old Rule Barring Medical Experts

By Joseph P. Lupinacci and Joshua T. Barney
February
2017
Article
Page 36
If you represent the defense and your expert works at the same hospital where the plaintiff received treatment, the court may bar him or her from testifying - even if the treating doctor and expert practice in different fields.

Admissibility of Social Media Evidence in Illinois

By Richard S. Kling, Khalid Hasan, and Martin D. Gould
January
2017
Article
Page 38
Is social media evidence admissible in Illinois? The short answer is yes, if the proper requirements are met. Here's a look at the applicable law and how to lay proper foundation in Illinois.

Summary judgment affirmed when plaintiff’s testimony is inadmissible under the Dead Man’s Act and no other proof of negligence available

December
2016
Illinois Law Update
Page 16
The second district affirmed a summary judgment ruling for the defendant over the plaintiff's claims that the pleadings established a question of material fact.

Sexual assault victims granted stricter protections and timely transfer of evidence from hospital to police

November
2016
Illinois Law Update
Page 18
Upon the completion of hospital emergency services and forensic services, health care professionals providing forensic services shall provide the patient the opportunity to sign a written consent to allow law enforcement to submit the sexual assault evidence for testing.

Testimony regarding lack of intent to gift does not rebut presumption of transmutation of nonmarital funds to marital property

October
2016
Illinois Law Update
Page 18
The First District Appellate Court rejected all three arguments in a wife's appeal regarding the property division in her marriage dissolution.

The Challenge of Proving Negligent Spoliation in Illinois

By Joseph K. Nichele
September
2016
Article
Page 32
It's hard for plaintiffs to plead and prove claims for negligent spoliation of evidence. Here's why it's important - and difficult - for plaintiffs to establish a duty to preserve evidence.

DNA Evidence and the Confrontation Clause after People v. Barner

By Julia Kaye Wykoff
August
2016
Article
Page 36
Supposed the prosecution's expert testifies about a lab report conducted by a scientist the state didn't call. Is the defendant's right to confront adverse witnesses violated? Not if the report was done for reasons other than proving the defendant's guilt.

Appellate court finds evidence of other sexual misconduct within a doctor-patient relationship admissible at trial to prove propensity

July
2016
Illinois Law Update
Page 18
In 2008, Ricardo Arze was indicted on two counts of criminal sexual assault and one count of unlawful restraint for sexually assaulting his former patient, M.S. Prior to trial, the State filed a motion to admit evidence of other crimes pursuant to section 115-7.3 of the Code of Criminal Procedure.

Trial court’s failure to impose sanctions on party’s last minute use of paternal grandmother as expert witness requires new trial to remedy unfair surprise

July
2016
Illinois Law Update
Page 18
The Fifth District Appellate Court held that the trial court abused its discretion when it failed to sanction respondent's self-confessed violation of Rule 213(f) by allowing the admission of the paternal grandmother's testimony as an expert witness.

Defendants may be found guilty of murder beyond a reasonable doubt without eyewitnesses, physical or forensic evidence, or a confession

June
2016
Illinois Law Update
Page 18
On November 12, 2015, the Third District of the Illinois Appellate Court affirmed Drew Peterson's first degree murder conviction and sentencing on the grounds that his guilt was proven beyond a reasonable doubt.

The Perils of Witness Prep

By Ed Finkel
May
2016
Article
Page 20
Lawyers owe it to clients to thoroughly prepare witnesses to testify. On the other hand, they have a duty not to present false evidence. Here are best practices for ethical-yet-effective witness preparation.

Judging Forensic Science

By Hon. Ron Spears
November
2015
Column
Page 48
Lawyers and judges have been slow to acknowledge the limitations of forensic science.

Litigation about litigation: Barred by absolute attorney litigation privilege

November
2015
Illinois Law Update
Page 20
On July 8, 2015, the first district affirmed dismissal of the O'Callaghans' complaint against Satherlie and Kopka as barred by the absolute attorney litigation privilege.

Report: State police crime lab’s toxicology testing methodology flawed

By Matthew Hector
November
2015
LawPulse
Page 14
According to a news report and a criminal defense lawyer, internal audits of the Illinois State Police crime lab's toxicology section reveal fundamental problems with the section's testing methodology.

Using Expert Testimony to Make the Case for Grandparent Visitation

By Michael K. Goldberg
October
2015
Article
Page 38
Thanks to a recent Illinois Appellate Court case, grandparents have a roadmap for using expert testimony to win court-ordered visitation with their grandchildren.

Don’t let opponents bury their own experts’ testimony

September
2015
Article
Page 22
Use the "missing witness" jury instruction to smoke out helpful testimony by your opponent's expert.

Proposed rule would require prosecutors to reveal post-conviction exculpatory evidence

By Matthew Hector
September
2015
LawPulse
Page 12
Under a proposed change to the Rules of Professional Conduct, Illinois prosecutors would have to disclose credible post-conviction evidence that a person found guilty is in fact innocent.

Missing Video Evidence in DUI Cases: The Post-Kladis Evolution

By Sean A. Brown
August
2015
Article
Page 28
You file for discovery of the police video of your client's DUI arrest only to find that it was erased after you requested it. Will the court grant your motion to bar testimony about what was on it?

Police officer’s noncompliance with section 30(c) of the State Police Act does not warrant evidentiary exclusion

August
2015
Illinois Law Update
Page 16
On June 5, 2015, the Second District of the Appellate Court held that a police officer's failure to comply with section 30(c) of the State Police Act does not trigger the evidentiary exclusion of the officer's testimony at trial.

Accountant holds accountant-client privilege, which is not subject to testamentary exception

June
2015
Illinois Law Update
Page 16
On March 19, 2015, the Illinois Supreme Court held that the accountant-client privilege in the Public Accounting Act is held by the accountant and is not subject to the testamentary exception.

Illinois high court declines to create new evidentiary privilege

By Matthew Hector
May
2015
LawPulse
Page 10
Creating a new critical-self-analysis privilege is the job of the legislature, not the judiciary, the Illinois Supreme Court rules recently.

Judicial Notice in the Internet Era

By Daniel Myerson
May
2015
Article
Page 30
The Internet has made vast amounts of information available, and judicial notice can put it into the record - within limits.

No Surprises: Basics of Controlled Expert Witness Disclosure

By Tiffany Riggs and Tim Hammersmith
May
2015
Article
Page 40
No matter how convincing your experts, their testimony may be for naught if you fail to make timely and appropriate disclosure of their identity under Rule 213(f)(3).

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