The Ins and Outs of the New Illinois Evidence Rules
Jeffrey A. Parness
Northern Illinois University - College of Law
March 18, 2011
Southern Illinois University Law Journal, Vol. 35, No. 4, Summer 2011
The new Illinois Rules of Evidence (IRE) which took effect January 1, 2011 primarily reaffirm earlier laws dispersed throughout cases, statutes and rules. They also modernize by incorporating "uncontroversial developments" found in the Federal Rules of Evidence (FRE) and in the laws of the forty four other surveyed jurisdictions. They are said to change Illinois evidence law in only two ways – adding opinion testimony as a method of proving character and eliminating certain requirements within the hearsay exceptions on 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. They contemplate future General Assembly laws on, or related to, evidence as long as there is no conflict with the IRE. When there is tension between IRE and a statute, the IRE controls.
This paper explores some of the challenges in applying the IRE. First, the legislative history behind the FRE is dispersed so that its persuasive use in Illinois courts will be difficult. Second, the role of the Illinois General Assembly in promulgating new evidence and evidence –related laws is uncertain. Uncertainty arises, in part, because some evidence guidelines implicate substantive policies. Perhaps at least some evidence lawmaking in Illinois, as in Kentucky, should be undertaken jointly by legislators and judges. Third, not all IRE provisions are modeled on FRE provisions so that care will be required when utilizing federal precedents. IRE diversions from the FRE are sometimes expressly referenced in the notes accompanying IRE. At other times, open issues of Illinois evidence law are recognized. Fourth, even when the IRE and FRE appear similar, at times they should be read differently. Fifth, there will be more choice of law issues when applying the IRE than the FRE.
Number of Pages in PDF File: 17
Keywords: evidence, evidence lawmaking, court rulemaking, practice & procedure, separation of powersAccepted Paper Series
Date posted: March 22, 2011
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