Non-Identical Twins: The Illinois and Federal Rules of Evidence

Illinois Bar Journal, Vol. 98, p. 642, December 2010

2 Pages Posted: 11 Feb 2011  

Jeffrey A. Parness

Northern Illinois University - College of Law

Date Written: November 9, 2010

Abstract

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.”

Keywords: Evidence, Trial Practice, Trial Procedures, State Court Rules

Suggested Citation

Parness, Jeffrey A., Non-Identical Twins: The Illinois and Federal Rules of Evidence (November 9, 2010). Illinois Bar Journal, Vol. 98, p. 642, December 2010. Available at SSRN: https://ssrn.com/abstract=1758736

Jeffrey A. Parness (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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