Illinois Bar Journal


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Articles on Evidence

Federal wiretapping evidence admissible though barred by state law By Helen W. Gunnarsson March 2008 LawPulse, Page 118 Evidence gathered in a joint federal-state investigation is admissible in state court if it complies with federal, though not state, eavesdropping law.
Admission of detective’s testimony did not violate the Confrontation Clause February 2008 Illinois Law Update, Page 72 On November 30, 2007, the Illinois Appellate Court, First District, affirmed the judgment of the Circuit Court of Cook County sentencing the defendant to 85 years for first degree murder and home invasion.
Diogenes and the Testimonial Whopper By Hon. Ron Spears February 2008 Column, Page 104 What can we do to improve the accuracy and honesty of witness testimony? Not enough.
How to Admit or Exclude PBT Results By Eric R. Waltmire February 2008 Article, Page 92 Police sometimes administer preliminary breath tests to drivers stopped on suspicion of DUI. When and how are the results admissible in a hearing? Here's a look at the cases.
No psych-record access for “garden variety” employee emotional distress claims By Helen W. Gunnarsson February 2008 LawPulse, Page 66 A recent ruling explains when employer-defendants can and cannot get access to employee-plaintiffs' medical and psychological records when employees sue for emotional distress cause by illegal discrimination.
State must establish foundation for admittance of electronic conversation transcript December 2007 Illinois Law Update, Page 632 On September 28, 2007, the Illinois Appellate Court, First District, reversed and remanded for new trial the judgment of the Circuit Court of Cook County convicting the defendant of indecent solicitation of a child because the State did “nothing to establish a foundation for the admissibility of the transcripts as evidence.” 
Using Videos at Trial: The Big Picture By Hon. James P. Flannery, Jr. December 2007 Article, Page 642 What foundation is needed to introduce a video at trial in Illinois? Are videos subject to discovery? The author explores that and more.
Burdens of Proof By Hon. Ron Spears November 2007 Column, Page 604 Defining burdens of proof can be hard. But they're easier to understand than to define.
Davis v Washington Narrows the Scope of “Testimonial” Hearsay By Howard W. Anderson, III October 2007 Article, Page 546 Prosecutors can't introduce "testimonial" hearsay unless the defendant had a chance to cross-examine the unavailable declarant. Davis tells us when a statement is not "testimonial."
Admitted negligent acts properly presented to jury when relevant and necessary to plaintiff’s case August 2007 Illinois Law Update, Page 404 On June 7, 2007, the Illinois Appellate Court, Fifth District, affirmed the decision of the Circuit Court of Jackson County allowing Michael Rath to present evidence of Carbondale Nursing and Rehabilitation Center's negligence despite the nursing home's admission of certain acts of negligence.
If the Gloves Don’t Fit… By Hon. Ron Spears August 2007 Column, Page 436 Physical evidence can have a huge impact, but know whether it will help or hurt your client.
Rules changed regarding alcohol and drug testing August 2007 Illinois Law Update, Page 404 20 Ill Adm Code 1286 has been amended by adding sub-section 1286.75, effective May 1, 2007. 
How to Admit E-Mail and Web Pages into Evidence By Theodore J. Koerth and Christopher E. Paetsch December 2006 Article, Page 674 The emerging legal standards.
Where Spoliation of Evidence Meets the Duty to Defend By Charles L. Philbrick December 2006 Article, Page 670 A look at the law of spoliation from the insured's perspective.
Admissibility of Damage Photos Without an Expert in Illinois By Hon. William J. Haddad November 2006 Article, Page 606 Admission of damage photos may no longer be automatic, this author opines.
Evidence of settling defendants’ culpability admissible for apportionment of fault November 2006 Illinois Law Update, Page 584 On August 23, 2006, the Illinois Appellate Court, First District, affirmed in part, reversed in part, and remanded for a retrial where the Circuit Court of Cook County held that settling defendants to a personal injury action were not to be considered during the jury's apportionment of fault.
Expanding the Use of Medical Treatises in Illinois Trials By Terrence J. Lavin and Michelle L. Wolf August 2006 Article, Page 426 The authors argue that following the federal approach would produce a better-informed jury.
Lack of professional license not a bar to rendering expert opinion August 2006 Illinois Law Update, Page 404 On June 2, 2006, the Illinois Supreme Court affirmed the decision of the Illinois Appellate Court, Second District, reversing and remanding the decision of the Circuit Court of Lake County to strike the affidavit of an expert witness because the witness lacked an Illinois professional license. 
Negative inference applicable only to “tip the scales” August 2006 Illinois Law Update, Page 404 On June 6, 2006, the Illinois Appellate Court, Second District, reversed the decision of the Circuit Court of DuPage County, which had ordered the issuance of a two-year plenary order of protection based upon testimony by respondent's ex-wife stating their daughter returned with a large welt on her leg after spending 11 hours with the respondent.
When the doctor is the patient - and a med-mal defendant By Helen W. Gunnarsson August 2006 LawPulse, Page 398 Should a defendant-doctor's medical records be available to a plaintiff who alleges that the doctor's poor health caused him to deliver substandard care?
DNA sampling does not violate the Constitution June 2006 Illinois Law Update, Page 284 On March 23, 2006, the Illinois Supreme Court affirmed the decision of the Illinois Appellate Court, Second District, holding that evidence admitted against the defendant at trial was properly admitted and that section 5-4-3 of the Unified Code of Corrections, which requires convicted felons to submit DNA samples to the police, does not violate the United States Constitution. 
In Defense of Bulger v CTA By Anthony Longo May 2006 Article, Page 254 A defense lawyer applauds the Bulger court's finding that evidence of subsequent remedial measures is inadmissible
The Duty to Disclose Exculpatory Evidence Discovered After Trial By Brendan Max March 2006 Article, Page 138 The author argues that such a duty exists based on the U.S. Supreme Court's Brady case and Illinois discovery and ethics rules
Trial Lawyers’ Top Opinions of 2005 By Hon. James P. Flannery, Jr. March 2006 Article, Page 122 From pre-trial notice requirements to spoliation of evidence, 2005 produced an array of Illinois cases of special interest to the trial bar.
The New Illinois Standard for Admissibility of Expert Opinion Testimony By Justin Lee Heather February 2006 Article, Page 88 The court in Simons created a dual standard: de novo review of the Frye "general acceptance" test, more deferential treatment of the trial court's decision about relevance and experts' qualifications.
Crawford, Breathalyzer Tests, and the Public-Records Hearsay Exception By Hon. William J. Haddad August 2005 Article, Page 412 May breathalyzer logbook entries still be introduced in Illinois under the public-records exception?
Crawford v Washington and the Limits on Admitting Hearsay in Criminal Trials By John H. Gleason August 2005 Article, Page 408 Crawford limits a judge's discretion to admit hearsay against criminal defendants. Here's a discussion of the case's impact and  unanswered questions.
Spoliation of Evidence: Responding to Fire Scene Destruction By Gerald O. Sweeney, Jr. and P. Russell Perdew July 2005 Article, Page 358 A look at the discovery, motion practice, and trial techniques defendants can use in response to destruction of a fire scene.
“Other-crimes” evidence is admissible to show defendant’s intent and lack of mistake April 2005 Illinois Law Update, Page 170 On January 21, 2005, the Illinois Supreme Court found that the circuit court did not abuse its discretion in admitting the evidence in question and upheld the appellate court's affirmance of the convictions.
Revisiting Bulger v CTA: the Case for Admitting Transportation Company Investigation Results By Jeffrey K. Kroll and J. Ryan Potts April 2004 Article, Page 210 The authors argue that a transporation company's investigation report should be admissible at trial.