Noteworthy Changes For The New Year
Published in Chicago Lawyer Magazine, February 2011
By Daniel Stefani
On Sept. 27, the Illinois Supreme Court announced its adoption of the Illinois Rules of Evidence effective Jan. 2011. These rules codify the evidentiary rules that Illinois courts followed historically based on case law, statutes, Illinois Supreme Court Rules and Local Rules.
Having these evidentiary rules in one easily accessible and authoritative place will clearly increase the efficiency of trials which, as the Supreme Court has stated, will improve the trial process itself as well as the quality of justice in Illinois. The new rules include a preface Committee Commentary written by Justice Donald C. Hudson as chairman.
The Illinois Rules of Evidence are clearly drawn with the intent to be consistent with the current case law, statutes, rules and other authorities on evidence and are clearly not intended to abrogate or supersede them.
There are a few noteworthy changes: specifically, Rules 803(3) and new Rules 405 and 608, relating to evidence of character.
Rule 803(3) now allows as a hearsay exception statements of a declarant’s existing state of mind or physical condition regardless of whether the declarant is available as a witness. The prior law required that the court make a finding that there was a reasonable probability that the statements were true.
The new Rule 405, Methods of Proving Character, now allows for the admission of opinion testimony as a method of proving character and/or reputation in cases where character evidences is inadmissible.
New Rule 608, Evidence of Character Witness, now permits the admissibility of opinion testimony where the character of the witness or truthfulness has been attacked by opinion or reputation evidence or otherwise.
Numbered paragraph (4) of the Committee Commentary explains that these changes were made where the evidentiary principle was neither addressed by statute nor specifically addressed in a comprehensive manner within recent history by the Illinois Supreme Court and where prior Illinois law simply did not properly reflect evidentiary policy considerations or raised practical application problems when considered in light of modern developments and evidence rules adopted elsewhere with respect to the identical issue.
The codified new rules have incorporated 14 instances of “noncontroversial modernization of the law of evidence as reflected in the Federal Rules of Evidence and 44 jurisdictions surveyed by the committee.” There are a few noteworthy examples.
Rule 902(11), Certified Records of Regularly Conducted Activity, is of particular importance to trials in divorce, which are typically very document-intensive. Most documents qualify as business records that until now required the custodian of records to testify at trial to lay the foundation for the documents that would otherwise be considered hearsay but for Supreme Court Rule 236.
Now, Rule 902(11) allows for self-authentication of business records consistent with Rule 236.
This self-authentication can be effectuated by simply accompanying the documentary exhibit with a written certification signed by the custodian of the records or other qualified person that the record was made at or near the time of the occurrence of the matter set forth by or from the information transmitted by a person with knowledge of the matters, was kept in the ordinary course of regularly conducted activity and was made by the regularly conducted activity as a regular practice. The certification must be signed under oath subject to penalties of perjury. The party intending to offer such record must provide written notice to all adverse parties and have the record and certification available for inspection to them in advance of trial.
This will obviously eliminate the need for calling multiple witnesses to lay foundation for business records.
New Rule 1006, Summaries, codifies the old case law that allows for the introduction into evidence of summary documents. The summary document is allowed into evidence as long as the underlying documents are voluminous and those underlying documents were made available prior to the trial or at the trial for examination by all adverse parties.
New Supreme Court Rule 613(a) titled Examining Witness Concerning Prior Statement, represents a change from the prior case law of Illinois Central Railroad v. Wade, 206 Ill. 523, 69 N.E. 565 (1903). The new rule provides that a prior inconsistent statement need not be shown to a witness prior to cross-examination.