Survey of Illinois Law: Ins and Outs of The New Illinois Evidence Rules

The new Illinois Rules of Evidence (IRE), which took effect January 1, 2011, primarily reaffirm earlier laws dispersed throughout cases, statutes and rules. They modernize many evidence guidelines by incorporating “uncontroversial developments” found in the Federal Rules of Evidence (FRE) and in the laws of forty-four other surveyed jurisdictions. The new rules are said to change Illinois evidence laws in only two areas: they add opinion testimony as a method of proving character and they eliminate certain requirements within the hearsay exceptions on statements of then existing mental, emotional or physical condition. The new rules reference some, but far from all, preexisting statutes whose validity “are not affected by” the IRE. The rules contemplate future General Assembly laws on evidence as long as there is no conflict with the IRE. Finally, when there is redundancy between IRE and another Illinois Supreme Court Rule, “reference should be made solely to the appropriate Illinois rule of evidence.” Other American states have also codified their evidence laws on the FRE model and, accordingly, both federal and other state experiences should be helpful to Illinois lawyers and judges.There are a few pitfalls, however. First, the legislative history behind the FRE is dispersed so that its persuasive use in Illinois courts will be challenging. Second, the role of the General Assembly in promulgating new evidence laws is uncertain. Uncertainty arises, in part, because evidence guidelines often implicate substantive law policies, thus prompting General Assembly responsibilities. Perhaps at least some evidence lawmaking in Illinois should be undertaken jointly by legislators and judges. Third, not all IRE provisions are modeled on FRE provisions so that care is required when utilizing federal precedents. IRE diversions from the FRE are sometimes expressly referenced in the notes accompanying the IRE. At other times, open issues of Illinois evidence law are recognized; here there may be diversions from the FRE. Fourth, even when the IRE and FRE appear similar, at times they will (and should) be read differently. Fifth, there may be more choice of law issues when applying the IRE rather than the FRE. Finally, there are some major questions left unaddressed in the IRE and little guidance from the rule makers and others on who will answer, when answers will come and what the answers will likely be