Non-Identical Twins: The Illinois and Federal Rules of Evidence
Jeffrey A. Parness
Northern Illinois University - College of Law
November 9, 2010
Illinois Bar Journal, Vol. 98, p. 642, December 2010
Illinois has a new set of evidence rules (IRE), effective January 1, 2011. These rules follow the format and numbering scheme of the Federal Rules of Evidence (FRE). While similar in many respects, there are some key differences. This brief article highlights certain variations.
First, the roles of Illinois and federal legislators in future evidence lawmaking differ. In Illinois, rule proposals will not be submitted for General Assembly review.
Second, there is no express prohibition in Illinois, as under 28 USC 2072(b), on rules modifying substantive rights. Such rules often involve privileges and their waivers. Unlike Congress, the Illinois General Assembly has often spoken directly on privileges and their waivers, at least outside attorney-client settings. So some evidence lawmaking by the General Assembly will likely continue.
Third, even when the IRE and FRE are similar or identical, differences can still arise. Attorney-corporate client communication privileges already differ though IRE 501 significantly follows FRE 501. Future differences will likely arise as FRE cases are not “persuasive,” though they are “instructive.”
Number of Pages in PDF File: 2
Keywords: Evidence, Trial Practice, Trial Procedures, State Court Rules
Date posted: February 11, 2011