Illinois Supreme Court adopts rules on evidence that take effect in 2011

Chicago Daily Law Bulletin
September 27, 2010 Volume: 156 Issue: 188
Court adopts rules on evidence that take effect in 2011

By Bethany Krajelis
Law Bulletin staff writer

SPRINGFIELD — For the first time ever, Illinois has codified its rules on evidence.

Starting Jan. 1, all of the state’s evidentiary laws, which are currently scattered throughout case law, statutes and other Supreme Court rules, will be in one easily accessible source known as the Illinois Rules of Evidence.

The Illinois Supreme Court adopted these rules during its September term and issued the order Monday.

Spanning about 40 pages, the Illinois Rules of Evidence not only codifies existing case law and statutes, but it also includes 14 “modernizations,” which the court says address “noncontroversial developments in the law of evidence as reflected in the Federal Rules of Evidence.”

The new rules, which took into account some of the concerns raised at a pair of public hearings in March, represent a nearly two-year effort by the Special Supreme Court Committee on Rules.

The committee was formed in November 2008, two months after Chief Justice Thomas R. Fitzgerald was sworn in as the court’s top justice and suggested the rules be reorganized.

Fitzgerald, who is set to retire from the bench Oct. 25, said, “The new rules of evidence will provide the bar of Illinois easy access to the Illinois law of evidence and be of enormous value to practicing lawyers in the state and the litigants they represent.”

Second District Appellate Justice Donald C. Hudson, the committee’s chairman, said he believes the finished product “absolutely” meets the committee’s goal of making the process easier for practitioners.

He said the committee paid attention to the handful of concerns raised at the public hearings when it wrote and sent its final proposal to the court for approval.

Chicago trial lawyer Bruce R. Pfaff was one of the lawyers who attended the public hearings, where he voiced his concern that the committee was making substantial changes, rather than simply codifying existing rules.

But, after learning that the committee reserved two of the rules he was worried about and revised another, Pfaff said he is “quite pleased with the changes.”

Pfaff was especially concerned about Rules 407, 702 and 803 (18).

As it was initially proposed, Rule 702 made Pfaff and other attorneys wonder whether Illinois would continue to use the “Frye” standard in determining the admissibility of scientific evidence as set forth in Donaldson v. Central Illinois Public Service Co., 199 Ill. 2nd 63 (2002).

In the Rules of Evidence, this rule was revised to settle any confusion and affirms that Illinois remains a state that adheres to the “Frye” standard.

In addition, the committee reserved Rule 407, which dealt with remedial measures in product liability cases. This rule has been temporarily reserved until the justices issue a ruling in Dora Mae Jablonski v. Ford Motor Co., a case the court recently agreed to hear.

Also reserved is Rule 803 (18). As originally drafted, this rule would have created a hearsay exception for learned treatises. This exception is in the federal rules, but Pfaff said it was contrary to Illinois law.

Hudson said the committee’s decision to reserve these two rules basically saves the spot in the Illinois Rules of Evidence in case the justices decide to adopt a rule in the future.

According to the commentary section of the Rules of Evidence, the new rules only contain changes in two areas. The first deals with opinion testimony, which can be located in Rules 405 and 608, and the second deals with hearsay statements under Rule 803(3).

John E. Thies, the second vice president of the Illinois State Bar Association, said the ISBA supports the new rules.

“Codification of evidentiary law from the multiple sources where it now resides will be a significant benefit to the practicing bar, and also a convenience for the judiciary,” he said in a written statement. “Legal research should be simpler, and codification may also result in a more unified application of evidentiary rules.

Thies, Pfaff, Hudson and Warren D. Wolfson, who served as the committee’s vice chairman, praised Fitzgerald for his efforts on the Illinois Rules of Evidence.

“From beginning to end, this was not only the chief justice’s idea, but he made it a dynamic process as well,” said Wolfson, interim dean of the DePaul University College of Law. “He was kind of like our spiritual leader in this effort. He didn’t just name a committee, and forget about it. This is clearly his legacy.”

The new rules, which are laid out in MR 24138, can be found on the Illinois Supreme Court’s website.

Reprinted by permission from the Chicago Daily Law Bulletin.  ©2010 by Law Bulletin Publishing Company.  To subscribe to the Chicago Daily Law Bulletin, visit

~ by CDLB on September 28, 2010.

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