Publications

Articles on Evidence

Lost Text Messages Lead to Sanctions

July
2019
Article
Page 18
A defendant is sanctioned for destroying 50 text messages.

From ISBA Central - Strategies for when opposing counsel challenges USPS’s tracking information

By Ted Harvatin, Bryan Sims, Adam Whiteman, Mark Moreno, and Mark C. Palmer
December
2018
Article
Page 20
Opposing counsel challenges USPS's tracking information

Innocence challenge after guilty plea must present a truly persuasive demonstration of innocence through compelling evidence

December
2018
Illinois Law Update
Page 14
On Sept. 28, 2018, the First District Appellate Court of Illinois held that a defendant raising a freestanding actual innocence challenge after previously entering a guilty plea must present a truly persuasive demonstration of innocence in the form of compelling evidence.

Admit It

By Rhys Saunders
November
2018
LawPulse
Page 12
Illinois Supreme Court updates Illinois Rules of Evidence to accommodate more types of records, documents, and electronically stored information.

What’s Not to “Like”?

By Dustin J. Karrison
November
2018
Article
Page 28
Social media sites provide attorneys with many more ways to pursue and defend the claims of clients during trial. Establishing social media content as evidence is now easier and less expensive thanks to new amendments to the Illinois Rules of Evidence.

Consistent documentation and data guidelines provided for toxicology tests

August
2018
Illinois Law Update
Page 16
The Department of State Police adopted a new regulation titled Disclosure of Forensic Laboratory Toxicological Testing Results (20 Ill Adm. Code 1287 (effective May 15, 2018)) that aims to create more uniformity in toxicology evidence produced by the department that would lead to a proper, well-formed determination of the admissibility of toxicology evidence.

Google Street Views…and Opinions

By Allen Wall and Caitlyn R. Culbertson
August
2018
Article
Page 40
Google Maps, Google Street View, and similar internet services allow parties to access images of a particular location without ever being physically present at the site. Are such images admissible? How do the Rules of Evidence interact with these new discovery resources? This article examines how such issues may arise during litigation.

Depositions Under Illinois Law: The Federal Example

By Roy Dripps
June
2018
Article
Page 38
Yes, you can depose a corporation, and Illinois Supreme Court Rule 206(a)(1) sets out the process. The bad news: Illinois courts have said little about the Rule. The good news: Plenty of federal rulings have interpreted FRCP 30(b)(6), the model upon which the Illinois rule is based.

For purposes of admissibility, text messages are treated like any other form of documentary evidence

June
2018
Illinois Law Update
Page 16
Following a bench trial, the defendant appealed his conviction of involuntary sexual servitude of a minor, traveling to meet a minor, and grooming.

Sleuthing on the ‘Net

By Ed Finkel
June
2018
Cover Story
Page 20
Social media and the internet generally hold a trove of mission-critical information for lawyers about adversaries, businesses, and more - and most of it is free. Do you know how to find it?

Without satisfying the prerequisites of the business record exception, testimony on historical cell-site location data is hearsay

June
2018
Illinois Law Update
Page 16
The Illinois Appellate Court reversed a jury conviction of armed robbery with a firearm as the trial court erred in admitting a detective's testimony as to historical cell-site analysis (HCSA) evidence, which was both hearsay and prejudicial.

Blood-Alcohol Evidence and ‘Driving While Impaired’ in Illinois Civil Cases

By Patrick C. Dowd and Seth Howard
May
2018
Article
Page 38
Suppose you have evidence of a driver's high BAC but no corroborating evidence of impairment. Does the BAC evidence alone authorize an expert to testify that the driver was probably impaired? This article reviews the confusing state of Illinois law.

People v. Kent: The New Standard for Authenticating Social Media Evidence

By John M. Zimmerman
April
2018
Article
Page 26
The Illinois Appellate Court adopted a new standard in People v. Kent for admitting social media evidence. Here's a review of the standard and advice about how to apply it.

Demonstrative v. Substantive Evidence: Know the Important Difference

By John M. Spesia and Jacob E. Gancarczyk
January
2018
Article
Page 26
Demonstrative evidence, which merely illustrates or explains a point, need not be disclosed during discovery. But trying to use it to do the work of substantive evidence risks having a favorable verdict overturned.

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.

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