T I R E: Ac - C G: He Llinois Ules of Vidence Olor Oded Uide
T I R E: Ac - C G: He Llinois Ules of Vidence Olor Oded Uide
T I R E: Ac - C G: He Llinois Ules of Vidence Olor Oded Uide
A Color-Coded Guide
Gino L. DiVito
Tabet DiVito & Rothstein LLC, Chicago
Former Illinois Appellate Court Justice
Member, Special Supreme Court Committee on Illinois Evidence
iii
Rule 408. Compromise and Offers to Compromise�������������������� 101
Rule 409. Payment of Medical and Similar Expenses������������������ 104
Rule 410. Inadmissibility of Pleas, Plea Discussions, and
Related Statements������������������������������������������������� 105
Rule 411. Liability Insurance��������������������������������������� 109
Rule 412. Prior Sexual Activity or Reputation as Evidence������������� 110
Rule 413. Evidence of Other Offenses in Criminal Cases��������������� 114
[FRE 414 not adopted.]��������������������������������������������� 118
[FRE 415 not adopted.]��������������������������������������������� 120
Article V. Privileges
Rule 501. General Rule�������������������������������������������� 121
Rule 502. Attorney-Client Privilege and Work Product;
Limitations on Waiver���������������������������������������������� 132
Article VI. Witnesses
Rule 601. General Rule of Competency������������������������������ 137
Rule 602. Lack of Personal Knowledge������������������������������� 140
Rule 603. Oath or Affirmation�������������������������������������� 141
Rule 604. Interpreters���������������������������������������������� 142
Rule 605. Competency of Judge as Witness��������������������������� 143
Rule 606. Competency of Juror as Witness��������������������������� 144
Rule 607. Who May Impeach��������������������������������������� 150
Rule 608. Evidence of Character of Witness for Truthfulness
or Untruthfulness�������������������������������������������������� 151
Rule 609. Impeachment by Evidence of Conviction of Crime���������� 156
Rule 610. Religious Beliefs or Opinions������������������������������ 161
Rule 611. Mode and Order of Interrogation and Presentation���������� 162
Rule 612. Writing Used To Refresh Memory�������������������������� 165
Rule 613. Prior Statements of Witnesses����������������������������� 166
Rule 614. Calling and Interrogation of Witnesses by Court������������ 170
Rule 615. Exclusion of Witnesses������������������������������������ 171
iv
Article VII. Opinions and Expert Witnesses
Rule 701. Opinion Testimony by Lay Witnesses���������������������� 177
Rule 702. Testimony by Experts������������������������������������� 185
Rule 703. Bases of Opinion Testimony by Experts��������������������� 201
Rule 704. Opinion on Ultimate Issue�������������������������������� 208
Rule 705. Disclosure of Facts or Data Underlying Expert Opinion������ 209
[FRE 706 not adopted.]��������������������������������������������� 214
Article VIII. Hearsay
Rule 801. Definitions���������������������������������������������� 217
Rule 802. Hearsay Rule�������������������������������������������� 237
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial����� 238
Rule 804. Hearsay Exceptions; Declarant Unavailable����������������� 276
Rule 805. Hearsay Within Hearsay���������������������������������� 292
Rule 806. Attacking and Supporting Credibility of Declarant����������� 293
[FRE 807 not adopted.]��������������������������������������������� 295
Article IX. Authentication and Identification
Rule 901. Requirement of Authentication or Identification������������� 309
Rule 902. Self-authentication��������������������������������������� 319
Rule 903. Subscribing Witness’ Testimony Unnecessary���������������� 328
Article X. Contents of Writings, Recordings, and Photographs
Rule 1001. Definitions��������������������������������������������� 329
Rule 1002. Requirement of Original��������������������������������� 331
Rule 1003. Admissibility of Duplicates������������������������������� 332
Rule 1004. Admissibility of Other Evidence of Contents��������������� 333
Rule 1005. Public Records������������������������������������������ 334
Rule 1006. Summaries��������������������������������������������� 335
Rule 1007. Testimony or Written Admission of Party������������������ 336
Rule 1008. Functions of Court and Jury����������������������������� 337
Article XI. Miscellaneous Rules
Rule 1101. Applicability of Rules������������������������������������ 339
v
Rule 1102. Title��������������������������������������������������� 344
Related Statutes and Supreme Court Rules � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 345
Appendix A
725 ILCS 5/115-7.3. Evidence in certain cases.������������������������ 345
Appendix B
725 ILCS 5/115-7.4. Evidence in domestic violence cases. ������������� 346
750 ILCS 60/103. Definitions.���������������������������������������� 346
Appendix C
725 ILCS 5/115-20. Evidence of prior conviction.�������������������� 347
Appendix D
735 ILCS 5/8-1901. Admission of liability ‑ Effect.�������������������� 348
Appendix E
725 ILCS 5/115-7. Prior sexual activity or reputation as evidence.���� 349
Appendix F
735 ILCS 5/8-2801. Admissibility of evidence; prior sexual
activity or reputation.�������������������������������������������� 350
Appendix G
705 ILCS 405/5-150. Admissibility of evidence and
adjudications in other proceedings.������������������������������� 351
Appendix H
735 ILCS 5/2-1102. Examination of adverse party or agent.����������� 352
Supreme Court Rule 238. Impeachment of Witnesses;
Hostile Witnesses.������������������������������������������������� 352
Appendix I
725 ILCS 5/115-10.1. Admissibility of Prior Inconsistent Statements.�� 353
Appendix J
725 ILCS 5/115-12. Substantive Admissibility of Prior Identification.�� 354
Appendix K
725 ILCS 5/115-13. Hearsay exception; statements by victims
of sex offenses to medical personnel.������������������������������ 355
Appendix L
725 ILCS 5/115-5. Business records as evidence.���������������������� 356
vi
Supreme Court Rule 236. Admission of Business Records in Evidence.� 357
Appendix M
725 ILCS 5/115-5.1. Records of the coroner’s medical or
laboratory examiner as evidence.����������������������������������� 358
Appendix N
725 ILCS 5/115-10.6. Hearsay exception for intentional
murder of a witness. [Repealed]������������������������������������ 359
725 ILCS 5/115-10.7. Admissibility of prior statements of
an unavailable witness whose absence was wrongfully
procured. [Repealed]����������������������������������������������� 359
Appendix O
725 ILCS 5/115-10.2. Admissibility of prior statements
when witness refused to testify despite a court order to testify.��� 361
Appendix P
725 ILCS 5/115-10.2a. Admissibility of prior statements
in domestic violence prosecutions when the witness is
unavailable to testify.��������������������������������������������� 362
Appendix Q
725 ILCS 5/115-10.3. Hearsay exception regarding elder adults.������ 363
Appendix R
725 ILCS 5/115-10.4. Admissibility of prior statements
when witness is deceased.������������������������������������������ 364
Appendix S
735 ILCS 5/8-2701. Admissibility of evidence; out of court
statements; elder abuse.������������������������������������������� 365
Appendix T
735 ILCS 5/8-2601. Admissibility of evidence; out-of-court
statements; child abuse.������������������������������������������� 366
Appendix U
725 ILCS 5/115-10. Certain hearsay exceptions.����������������������� 367
vii
viii
Preface to the January 1, 2021 Edition
This preface is offered as a comprehensive standalone guide for the differences
between the federal and Illinois rules of evidence. It was originally published in the
Illinois Bar Journal, Vol. 108 #1, January 2020.
BY GINO L. DiVITO
GINO DiVITO, who has been licensed to practice law in Illinois since 1963, has served
▼
as the chief of the Criminal Division of the Cook County State’s Attorney’s Office, a
trial judge, an appellate court justice, and, since 2001, as a cofounding partner of the
Chicago law firm of Tabet DiVito & Rothstein LLC. DiVito also is a member of the
Supreme Court Committee on Illinois Evidence and the author of the ISBA book “The
Illinois Rules of Evidence: A Color-Coded Guide.”
gdivito@tdrlawfirm.com
TAKEAWAYS >>
Many differences between
Federal and Illinois Rules of
Evidence concern:
• hearsay exceptions;
• challenges to witness
character traits and
credibility; and
• the gatekeeping of
expert witnesses.
Differences are provided below—in the of similar crimes in sexual assault cases; FRE
sequential order of the rules—as summaries of 414 allows, for propensity purposes, evidence of
relevant rules and their differences. similar crimes in child molestation cases; FRE
415 allows, for propensity purposes, evidence of
Preserving a claim of error for appeal similar acts in civil cases involving sexual assault
FRE 103(b), in both civil and criminal cases, or child molestation.
does not require a renewal of an objection or IRE 404(b) provides the same general
an offer of proof to preserve a claim of error for prohibition as its federal counterpart, which,
appeal once the court rules “definitively” on the like the federal rule, includes an exception
record either before or at trial. for common-law allowances that provide
IRE 103(b)(3), in contrast to its federal admissibility for specific purposes, such as
counterpart, requires the renewal of an objection for proof of motive or intent, but not to prove
or an offer of proof in civil cases to preserve a propensity. But, in contrast to the federal rule,
claim of error for appeal, even where the court the Illinois rule also allows evidence of other
rules in limine before or at trial on the record. crimes, wrongs, or acts—as provided in certain
But, consistent with FRE 103(b) regarding criminal specified statutes2—”to show action in conformity
cases, IRE 103(b)(2) does not require a renewal therewith” (i.e., for propensity purposes).
of an objection or an offer of proof to preserve
a claim of error for appeal where the court rules Character and conduct
FRE 405(a) allows a character witness to be
before or at trial on the record.1
cross-examined on relevant specific instances of
Victim and defendant character traits conduct of the person whose character evidence
FRE 404(a)(2)(B)(ii) provides that, in a criminal has been provided when evidence of a person’s
case where a defendant’s offer of an alleged victim’s character or character trait is admissible.
relevant character trait is admitted into evidence, IRE 405(a) has not adopted that federal rule
the prosecutor is allowed to also offer evidence of provision. Thus, in Illinois, unless the character
the defendant’s same trait. witness has testified concerning the conduct of a
IRE 404(a)(2) does not allow a prosecutor to person where character or a character trait is an
offer such evidence in similar circumstances. essential element of a charge, claim, or defense
under IRE 405((b)(1), the witness may not
Character and propensity be cross-examined about specific instances of
FRE 404(b) prohibits evidence of a crime, conduct of the person whose character evidence
wrong, or other act to “prove a person’s character has been provided. Illinois’ rejection of the federal
in order to show that on a particular occasion the rule’s provision is similar to its rejection of FRE
__________
person acted in accordance with the character”
1. People v. Denson, 2014 IL 116231, ¶ 23 (providing the
(i.e., to show the person’s propensity to commit a rationale for this distinction in Illinois civil and criminal cases).
2. 725 ILCS 5/115-7.3 (involving sex-related offenses); id.
crime, wrong, or other act). Note, however, that § 5/115-7.4 (involving domestic violence-related offenses); id. §
FRE 413 allows, for propensity purposes, evidence 5/115-20 (involving domestic violence-related offenses).
2
Subsequent remedial measures IRE 410 also prohibits evidence under
FRE 407 does not allow evidence of similar circumstances, but it applies
subsequent remedial measures to be only in criminal cases. And it does not
FOR MY OWN PERSONAL admitted to prove negligence, culpable have a subdivision (b), so it provides
ENLIGHTENMENT AND USE, AND conduct, a defect in a product or its design, no exceptions to its general rule of
WITH MISPLACED CONFIDENCE THAT or a need for a warning or instruction. inadmissibility. The Illinois rule is based
IRE 407 has been reserved. Sadly, on Illinois Supreme Court Rule 402(f).
THE TASK WOULD NOT BE TOO TIME-
there is no codified Illinois evidence
CONSUMING—I CREATED A STAND- Other similar sex-related crimes
rule for subsequent remedial measures.
ALONE GUIDE OF THE DIFFERENCES FRE 413 provides for the admission of
Appellate court opinions, some of which
evidence of other similar crimes in sexual
[BETWEEN THE FEDERAL AND are conflicting, provide the principles to
assault cases.
ILLINOIS RULES OF EVIDENCE]. I be applied where subsequent remedial
IRE 413 also provides for the admission
WAS SURPRISED TO FIND MORE measures have occurred.
of evidence of another sex-related offense
THAN THREE DOZEN EXAMPLES—A Compromise negotiations pursuant to a relevant statute3 but, pursu-
REALITY THAT NEEDS TO BE SHARED. FRE 408(a)(2) prohibits evidence of ant to other relevant statutes, it expands
conduct or a statement made during evidence admissibility by providing for
compromise negotiations about the the admission of evidence of another
608(b), which allows cross-examination domestic violence-related offense4 and for
claim—“except when offered in a criminal
on specific acts of conduct of a character evidence of the defendant’s conviction for
case and when the negotiations related
witness concerning truthfulness or another domestic violence-related offense
to a claim by a public office in the
untruthfulness. against the same victim.5
exercise of its regulatory, investigative, or
FRE 405(b) allows a person’s character
enforcement authority.”
or character trait to be proved by relevant Similar crimes in child
IRE 408(a)(2) also prohibits evidence
specific instances of the person’s conduct, molestation cases
of conduct or a statement made during
when that person’s character or trait is an FRE 414 provides that, where a defen-
compromise negotiations about the claim,
essential element of a charge, claim, or dant is accused of criminal child molesta-
but it does not provide the exception that
defense. tion, evidence of his commission of any
is included within the quotation marks of
IRE 405(b)(1) is substantially identical other child molestation is admissible.
the federal rule provided above.
to FRE 405(b). But IRE 405(b)(2), which IRE 413(a) incorporates the provisions of
has no codified federal counterpart, also Discussions related to pleas & FRE 414, so a separate rule is unnecessary.
allows proof of specific instances of an plea discussions
alleged victim’s prior violent conduct in Similar sex-related acts in
FRE 410(a) generally prohibits evidence
criminal homicide or battery cases “when criminal cases
of discussions related to pleas, plea
the accused raises the theory of self- FRE 415 allows evidence of similar
discussions, and related matters where a
defense and there is conflicting evidence sexual assaults or child molestations in
guilty plea does not result. It applies in
as to whether the alleged victim was the civil cases involving a claim based on
both civil and criminal cases. FRE 410(b)
aggressor.” sexual assault or child molestation.
provides exceptions to its general rule of
There is no codified Illinois counter-
inadmissibility.
part to the federal rule in civil cases.
3
lows the party calling the witness to attack is later. But the evidence of conviction who calls a hostile witness or an adverse
the witness’s credibility only by showing is subject to discretionary admission witness, and it adds the allowance for “an
affirmative damage—except for statements by the court after that time period if its unwilling witness.” But it does not adopt
that are substantively admissible under probative value substantially outweighs its the federal rule’s allowance of leading
IRE 801(d)(1)(A), 801(d)(1)(B), 801(d) prejudicial effect and the proponent gives questions for “a witness identified with
(2), or 803. an adverse party reasonable written notice an adverse party.” Rather, the Illinois rule
of its intent to use it. applies the allowance to “an adverse party
Cross-examining to determine FRE 609(d) allows the admission of or an agent of an adverse party,” thus
character for truthfulness a juvenile adjudication, under certain rejecting the federal rule’s broad inclusion
FRE 608(b) allows a witness to be conditions, if it is offered only in a of “a witness identified with an adverse
cross-examined on extrinsic evidence criminal case and the adjudication was of party” while also conforming with section
to prove specific instances of conduct of a witness other than the defendant. 2-1102 of the Code of Civil Procedure.6
the testifying witness or another witness IRE 609(a) also allows evidence of a
to attack or support the character for criminal conviction, for impeachment
Using a writing to refresh a
truthfulness of the testifying witness or purposes, for an offense punishable by
witness’s memory
other witness. FRE 612(a)(2) provides that, where a
death or imprisonment for more than
IRE 608 has not adopted the federal witness uses a writing to refresh his or her
one year and for an offense involving a
rule’s subdivision (b). Consistent with memory during or before testifying, the
dishonest act or false statement. But, in
Illinois common law, the Illinois rule does adverse party is entitled to have the writ-
contrast to the federal rule, such evidence
not allow cross-examination on specific ing produced at the hearings, to inspect
is subject to the balancing test for the
instances of conduct to attack or support a it, to cross-examine the witness about it,
admission of evidence provided by Rule
and to introduce in evidence any portion
witness’s character for truthfulness. 403 in all cases. Thus, the balancing test
that relates to the witness’s testimony. But
provided by Rule 403 is applied to a mere
Admission of past criminal witness and to a defendant in a criminal
the rule adds a condition that applies only
convictions case, and that test also is applied to
to witnesses who refresh their memories
FRE 609(a) allows evidence of a before testifying “if the court decides that
convictions involving a dishonest act or justice requires the party to have those
criminal conviction, for impeachment
false statement. options.” That condition does not apply
purposes, for an offense punishable by
IRE 609(b) also denies admission of
death or imprisonment for more than to witnesses who refresh their memories
the evidence of a criminal conviction if while testifying.
one year. Where the witness is not the
more than 10 years have passed since IRE 612(2) provides the same entitle-
defendant in a criminal case, it makes
the witness’s conviction or release ments to the adverse party concerning
the admission of the conviction subject
from confinement for the conviction, witnesses who use a writing to refresh
to Rule 403 (i.e., the evidence is excluded
whichever is later. But, unlike the federal their memories during or before testify-
if its probative value is substantially
rule, it has no provision for allowing the ing. But the Illinois rule does not contain
outweighed by its unfair prejudicial effect).
discretionary admission of convictions the quoted portion of the federal rule
But for a defendant in a criminal case who that exceed that time period. given above. Thus, the Illinois rule does
was convicted of such offenses, the test for IRE 609(d) generally prohibits the not require the condition that the court
admission of evidence of the conviction is admission of evidence of juvenile exercise discretion for allowing the op-
not determined by the Rule 403 balancing adjudications, but it allows judicial tions available to the opposing party for
test, but by the more protective test of discretion to admit a juvenile adjudication witnesses who refresh their memories
whether “the probative value of the of a witness other than the accused, in before testifying.
evidence outweighs its prejudicial effect to both criminal and civil cases.
that defendant.” For any crime involving Prior consistent statements
a dishonest act or false statement, there Leading questions: adverse IRE 613(c), which addresses the ad-
is no balancing test, and the evidence of parties & hostile witnesses mission of evidence of prior consistent
conviction of any witness for such offenses FRE 611(c) provides that the court statements under certain circumstances,
must be admitted. should allow leading questions “when a not only does not exist in the federal rule,
FRE 609(b) denies admission of the party calls a hostile witness, an adverse it is inconsistent with FRE 801(d)(1)(B)
evidence of a criminal conviction if party, or a witness identified with an (i), which treats such statements as “not
more than 10 years have passed since adverse party.” hearsay.” The federal rule and its Illinois
the witness’s conviction or release from IRE 611(c) also provides for the __________
confinement for the conviction, whichever allowance of leading questions for a party 6. 735 ILCS 5/2-1102.
4
counterpart are addressed infra in the determine whether the inadmissible facts prior statement that is inconsistent with
discussion that leads with the federal rule. or data should be disclosed to the jury. the witness’s testimony, where the prior
Because that federal balancing test has not inconsistent statement “was given under
Gatekeeping expert testimony been adopted, the appropriate balancing penalty of perjury at a trial, hearing, or
FRE 702 incorporates what is referred test for admission in Illinois is IRE 403, other proceeding or in a deposition.”
to as the Daubert test.7 It makes the trial which prohibits disclosure to the jury only IRE 801(d)(1)(A)(i) also allows substan-
court the gatekeeper for the admission of if the probative value of the facts or data tive admissibility of such statements, but
scientific expert witness testimony (later in helping the jury evaluate the opinion is only in criminal cases. The rule does not
expanded to all expert witness testimo- substantially outweighed by their unfair allow substantive admissibility of such
ny8), based on the criteria it provides in prejudicial effect. inconsistent statements in civil cases.
FRE 702(a), (b), (c), and (d). IRE 801(d)(1)(A)(ii) expands its federal
IRE 702 adopts the general principles Expert testimony: defendant’s counterpart—in criminal cases, not civil
of the first paragraph of FRE 702 and FRE mental state cases—by allowing the substantive admis-
702(a) concerning the qualifications for FRE 704, which allows admissibility of sibility of a witness’s prior statement that is
a witness to provide expert opinion testi- lay and expert opinions on an ultimate inconsistent with the witness’s testimony
mony, but it does not adopt the remainder issue, adds a subdivision, FRE 704(b), at the trial or hearing and “narrates, de-
of the federal rule (FRE 702(b), (c), and to create an exception that makes scribes, or explains an event or condition
(d)), thus denying gatekeeper status to the inadmissible in a criminal case an expert of which the declarant [who also is the
trial court. And it specifically requires, in witness’s opinion “about whether the witness] had personal knowledge, and:
the rule and in its accompanying com- (a.) the statement is proved to have been
defendant did or did not have a mental
mittee comment, application of the Frye written or signed by the declarant; or
state or condition that constitutes an (b.) the declarant acknowledged under
test,9 which provides that where an expert element of the crime charged or of a oath the making of the statement either in
witness testifies to an opinion based on a defense.” the declarant’s testimony at the hearing or
new or novel scientific methodology or IRE 704 is identical to its federal coun- trial in which the admission into evidence
principle, the proponent of the opinion of the prior statement is being sought or at
terpart, but it has no 704(b) exception. Illi-
is required to show that “the methodol- a trial, hearing, or other proceeding, or in
nois common law allows an expert witness a deposition; or
ogy or scientific principle on which the to testify to the mental state or condition (c.) the statement is proved to have been
opinion is based is sufficiently established of a criminal defendant. recorded by a tape recorder, videotape
to have gained general acceptance in the recording, or any other similar electronic
particular field in which it belongs.” Ex- Court-appointed expert means of sound recording.
cept for its adoption of the first paragraph witnesses FRE 801(d)(1)(B) allows, in both civil and
of FRE 702 and FRE 702(a), the Illinois FRE 706 provides information about criminal cases, substantive admissibility,
rule provides no guidance for admission the appointment of expert witnesses, as “not hearsay,” of a witness’s prior state-
of expert testimony other than that for a including the appointment process, the ment that is consistent with the witness’s
new or novel scientific methodology or expert’s role, the expert’s compensation, testimony and the statement is offered:
principle. the court’s authorizing disclosure to the (i) to rebut an express or implied charge
that the declarant recently fabricated it or
jury that the court appointed the expert,
Expert testimony: facts & data acted from a recent improper influence or
and that the rule does not limit the party motive in so testifying; or
FRE 703 allows facts or data, which in calling its own expert. (ii) to rehabilitate the declarant’s credibility
would otherwise be inadmissible as Illinois has not adopted the federal as a witness when attacked on another
evidence but are reasonably relied upon rule, nor has it codified any evidence rule ground.
by an expert witness in forming an on the subject. An Illinois Supreme Court IRE 613(c), as indicated supra, is a response
opinion, to be disclosed to the jury “only rule, such as Rule 215(d) concerning the to FRE 801(d)(1)(B)(i). Illinois has not
if their probative value in helping the appointment of an impartial medical adopted either FRE 801(d)(1)(B)(i) or (ii).
jury evaluate the opinion substantially examiner, and Illinois statutes provide Thus, in Illinois prior consistent statements
outweighs their prejudicial effect.” for the appointment of experts in various of a witness are hearsay and are not subject
IRE 703 also allows otherwise inad- circumstances. to a hearsay exception or exclusion. IRE
missible facts or data reasonably relied 613(c)—the counterpart to FRE 801(d)(1)
upon by an expert witness in forming an Substantive admissibility: prior __________
opinion to be disclosed to the jury, but it statements 7. See Daubert v. Merrell Dow Pharmaceuticals,
does not use the balancing test provided FRE 801(d)(1)(A) provides, in both civil Inc., 509 U.S. 379 (1993).
8. Kumho Tire Co. v. Carmichael, 526 U.S. 137
by the federal rule in the quote above to and criminal cases, substantive admis- (1999).
sibility as “not hearsay” of a witness’s 9. Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923).
5
(B)(i)—adopts Illinois common law that Hearsay: medical diagnosis & Hearsay: business, medical, &
allows, in both civil and criminal cases, the treatment exceptions public records
admission of prior consistent statements by FRE 803(4) allows, as a hearsay IRE 803(6), generally referred to as
a witness where they are “offered to rebut exception, the admission of statements the business records exception to the
an express or implied charge that (i) the made for the purposes of medical hearsay rule, is identical in substance
witness acted from an improper influence diagnosis or treatment. to FRE 803(6), except that, contrary to
or motive to testify falsely, if that influence IRE 803(4)(A) also allows, as a hearsay the federal rule and consistent with a
or motive did not exist when the statement exception, the admission of statements relevant Illinois statute,10 medical records
was made; or (ii) the witness’s testimony made for the purpose of treatment, but in criminal cases are excluded from the
was recently fabricated, if the statement it allows the admission of statements of hearsay exception.
was made before the alleged fabrication medical diagnosis only in contemplation IRE 803(8) is the public records
occurred.” As IRE 613(c) makes clear, such of treatment. The rule specifically makes exception to the hearsay rule. It differs
statements are admitted only for rehabilita- from FRE 803(8) in excluding police
inadmissible “statements made to a
tive purposes and not substantively as a accident reports, consistent with Illinois
health care provider consulted solely for
hearsay exclusion or exception. Supreme Court Rule 236(b), and medical
the purpose of preparing for litigation
or obtaining testimony for trial,” but records in a criminal case, consistent with
Substantive admissibility: 725 ILCS 5/115-5(c)(1).
witness’s identification it excepts Rule 703’s allowance for
information reasonably relied upon by an
FRE 801(d)(1)(C) allows, in civil and Hearsay: learned treatise
expert witness.
criminal cases, the substantive admission exception
of a witness’s identification of “a person as IRE 803(4)(B) adds a subdivision to the
FRE 803(18) is the learned treatise
someone the declarant perceived earlier.” Illinois rule that gives broader admis- exception to the hearsay rule.
IRE 801(d)(1)(B) also allows the substan- sibility to medical diagnosis than that IRE 803(18) has been reserved. Illinois
tive admission of a witness’s “identifica- provided by subdivision (A). It allows, in has not accepted this exception to the
tion of a person made after perceiving the the prosecution of offenses specifically de- hearsay rule, nor has it codified a rule
person.” But the Illinois rule applies only fined by statutes related to sexual offenses, related to learned treatises. Consistent with
in criminal cases. It does not apply in civil the admission of “statements made by the Illinois common law, learned treatises are
cases. victim to medical personnel for purposes not substantively admissible through either
of medical diagnosis or treatment includ- direct examination or cross-examination.
Substantive admissibility: ing descriptions of the cause of symptoms, The absence of a codified rule on learned
opposing party’s statements pain or sensations, or the inception or treatises reportedly results in differences
FRE 801(d)(2) provides for and lists general character of the cause or external in trial courts throughout Illinois as to
the opposing party’s statements that are source thereof insofar as reasonably perti- whether and how juries should be in-
admissible substantively. nent to diagnosis or treatment.” formed of them.
IRE 801(d)(2) lists the same statements
of a party opponent that are admissible Hearsay: “recorded recollection” Hearsay: receipts & paid-bill
substantively, but it provides an additional exception exceptions
subdivision (F): “a statement by a person, FRE 803(5) provides the “recorded IRE 803(24) provides a hearsay
or a person on behalf of an entity, in recollection” exception to the hearsay rule. exception for a receipt or a paid bill. It
privity with the party or jointly interested It provides that, if admitted, “the record makes a receipt or paid bill “prima facie
with the party.” may be read into evidence but may be evidence of the fact of payment and as
received as an exhibit only if offered by an prima facie evidence that the charge was
“Present sense impression” reasonable.” There is no FRE 803(24). A
adverse party.”
statements federal rule carrying that designation,
IRE 803(5) also addresses the recorded
FRE 803(1) provides as an exception to which previously addressed other
recollection exception. It does not con-
the hearsay rule a “present sense impres- exceptions to the hearsay rule, has been
sion” statement, which is a “statement tain the provision quoted above. Thus,
transferred to FRE 807, which is the
describing or explaining an event or con- consistent with Illinois common law, the
“Residual Exception” to the hearsay rule.
dition, made while or immediately after recorded recollection report may be of-
There is no codified federal evidence rule
the declarant perceived it.” fered as an exhibit even by the proponent
that addresses the hearsay exception IRE
IRE 803(1) is reserved. Illinois has not of the evidence. 803(24) provides.
adopted the “present sense impression” __________
6
Hearsay: former testimony homicide, meaning that, in contrast to the Illinois has not adopted FRE 807.
exception federal rule in civil cases, the declarant Nevertheless, despite the lack of a codified
IRE 804(b)(1) is the “former testimony” must have died for the statement to be evidence rule, there are numerous statutes
exception to the hearsay rule. It differs admitted. in the Code of Criminal Procedure of
from its federal counterpart based on 1963 and in the Code of Civil Procedure
Illinois’ distinction between discovery
Hearsay: sufficient notice and that provide equivalent residual hearsay
and evidence depositions as they relate to
residual exceptions exceptions. In criminal cases, application
FRE 807 provides a residual exception of those statutes presents issues related
admissibility, and its reference to Illinois
to the hearsay rule. As amended to the defendant’s constitutional right to
Supreme Court Rule 212(a)(5), which
effective Dec. 1, 2019, the rule provides confrontation.
allows admission of discovery depositions
that, if sufficient notice is given to the
into evidence in limited circumstances.
opposing party, “a hearsay statement is Applying evidence rules when
Hearsay: dying declaration not excluded by the rule against hearsay revoking probation
FRE 804(b)(2), commonly referred to even if the statement is not admissible FRE 1101(d)(3) provides that the rules
as the “dying declaration” exception to under a hearsay exception in Rule 803 or of evidence do not apply in proceedings
the hearsay rule, makes admissible, in 804”—if two conditions are met. The two “revoking probation.”
a prosecution for homicide or in a civil conditions are: IRE 1101(b)(3) does not include an
case, a statement concerning the cause or (1) the statement is supported by sufficient exception for the rules of evidence for
guarantees of trustworthiness—after revoking probation. In contrast to federal
circumstances of the death of a declarant
considering the totality of circumstances
who believes his or her death to be under which it was made and evidence, if
proceedings, Illinois common law gener-
imminent. any, corroborating the statement; and ally requires the application of evidence
IRE 804(b)(2) is identical to its federal (2) it is more probative on the point for rules where the revocation of probation
counterpart, except in Illinois the hearsay which it is offered than any other evidence or conditional discharge is based on an
that the proponent can obtain through alleged criminal offense.
exception does not apply in civil cases.
reasonable efforts.
It applies only in a prosecution for a
7
xvi
Preface to the January 1, 2016 Edition
The three columns are gone. The two-column format returns. Here’s why.
When this guide was introduced in December 2010, it featured two columns. One
contained the then-current federal evidence rules; the other had the newly codified
Illinois evidence rules with the effective date of January 1, 2011. This format simplified
comparison of the two sets of the then-current rules—rules that had identical numbers
and formatting, and that were often substantively identical and frequently employed
exactly the same language.
Then, just one year later—on December 1, 2011—it was obvious that a change
was required. That was the effective date of the amendments to the Federal Rules of
Evidence—the date that introduced amendments made only for stylistic purposes and
with no intended substantive effect, but with significant changes in titles of rules and
subdivisions, in language, and in formatting. Greater clarity resulted.
For this reason, recent editions of the guide have featured three columns. To provide
continued access to the amended federal evidence rules, they were placed in their
own separate column. In the other two columns, side-by-side comparison of the pre-
amended federal rules and the Illinois rules was retained. But this resulted in three
narrow columns—with the more lengthy rules streaming for an undue length vertically
down the page.
More significant, by this time it was clear that there was little interest in a comparison
of the Illinois rules with the pre-amended (and otherwise mostly irrelevant) federal
rules. Neither those familiar nor those unfamiliar with the federal evidence rules had
any interest in the no-longer-current rules.
In short, having the Illinois rules side-by-side with the current federal rules had
become more important than a side-by-side comparison of the Illinois rules with the
now irrelevant pre-amended federal rules. That was especially so because the author’s
commentaries, which already explained differences and similarities, could satisfactorily
be used to explain what side-by-side placement had illustrated.
So, starting with this edition of the guide, the following changes have been
implemented:
(1) The current Federal Rules of Evidence are placed in the left column, side-by-side
with the column containing the current Illinois Rules of Evidence. The pre-December
1, 2011 federal evidence rules that served as the substantive and formatting model
xvii
for the Illinois rules, are no longer provided. This ensures ready access to the current
evidence rules—in a two-column format that allows use in federal and state courts, and
should facilitate both easy use and comparison.
(2) The colors used in the text within the columns containing the rules— previously
used to indicate substantive and non-substantive differences and the non-adoption of
certain federal rules or parts of them—have been eliminated, resulting in clutter-free
text in the columns containing both sets of rules.
(3) In lieu of color-coding within the rules themselves, in the very first part of the
author’s commentary on the Illinois evidence rules (often in the very first sentence or
at least in the first paragraph), the similarities in and the differences between the two
sets of rules are explained, the few substantive differences between the codified Illinois
rules and rules that had their origin in Illinois common law are discussed, and the non-
adoption of certain federal rules (or portions of them) is addressed.
(4) Except for two, the rules are provided at the top of a page, in their entirety—
with all of their subdivisions. The two exceptions are the lengthy rules that provide
hearsay exceptions, Rules 803 and 804. The various subdivisions of these two rules are
best considered separately for commentary purposes.
As always, I invite reader-input concerning every aspect of the guide: substantive and
minor errors; formatting; relevant statutes, rules, or cases that have been overlooked;
and any other matter related to accuracy and increased utility.
After all, this guide continues to be—like the rules of evidence and the decisions
that apply them—a work always in progress.
Gino L. DiVito
Tabet DiVito & Rothstein LLC
January 1, 2016
xviii
Preface to the December 2010 Edition
On November 24, 2008, the Illinois Supreme Court announced the appointment of
a broad spectrum of judges, lawyers, law professors, and legislators to serve on its newly
created Special Supreme Court Committee on Illinois Evidence. The Court directed
the Committee to draft a comprehensive code of evidence for the state based upon
Illinois statutes, rules, and common law. After a year-long process, the Committee
presented the Court its proposals for the codification of Illinois evidence rules.
The Court then invited written comments from the bar and scheduled public
hearings for oral presentations in Chicago and Springfield in May 2010. After
considering both the written comments and those made at the public hearings, the
Committee reconvened to revise some of its initial proposals and to add comments to a
few individual rules as well as a general commentary. These were then submitted to the
Court. On September 27, 2010, the Court approved and promulgated the Committee’s
proposals, setting January 1, 2011 as the effective date for the codified rules. Referred
to in Rule 1102 as the Illinois Rules of Evidence, the new rules are modeled on and
similar to, but not wholly identical to, the Federal Rules of Evidence. They contain the
same numbering system and address evidence issues in similar fashion.
This guide begins with the Committee’s general commentary to the rules and provides
all of the newly adopted rules – the Illinois Rules of Evidence (IRE) – including the
individual comments that the Committee provided for five of the rules. It presents
the new rules in a side-by-side comparison with the Federal Rules of Evidence (FRE),
along with additional relevant commentary. The guide’s goals are to: (1) enable a direct
comparison of the two evidence rules; (2) offer commentary concerning the new rules,
with relevant case and statutory citations and explanations; (3) point out substantive
and non-substantive differences between the federal and the Illinois rules; (4) indicate
explicit rejection of certain federal rules or portions of them; and (5) highlight
substantive changes from former Illinois evidence law. To achieve these objectives, the
guide employs colored highlights:
• Yellow is used for the author’s commentary, in what is a work always in progress.
• Pink is used for comments provided by the Committee for five of the rules.
• Blue underlining is used to indicate both substantive and non-substantive
differences between the FRE and the IRE that do not represent a change in
Illinois law.
• Red strikethrough is used to indicate a federal rule or a portion of it that was not
adopted. The strikethrough reflects non-adoption, not deletion.
• Green is used to indicate a substantive change from prior Illinois law, regardless
of whether there is a difference between the FRE and the IRE. As stated above,
mere differences between the FRE and the IRE – even those that are substantive
but do not reflect a change in Illinois law – are shown with blue underlining.
xix
Although the guide is intended to be viewed in color, a reader who does not have a
color copy nevertheless will be able to discern the various types of highlighting from
the context or style of the highlight. For example:
• Commentary is in a different typeface, and the author’s commentary always is preceded by an
appropriate title to distinguish it from the committee commentary.
• Rule differences not representing a change in Illinois law always are underlined.
• Federal rules that were not adopted always are marked with strikethrough.
• Substantive changes in Illinois law are the only shaded text in the Illinois rules
themselves.
Thus, the guide can be utilized even if printed in grayscale.
Every effort has been made to ensure that the rules and commentary in the guide
are current as of the date stated below and as of the date of the last revision shown on
the cover page. Note that there are minor variations in the various published editions
of the Federal Rules of Evidence, mostly in the use of upper or lower case letters in
subheadings. This guide follows the Federal Rules of Evidence printed for the use of the
Committee on the Judiciary of the United States House of Representatives and dated
December 1, 2009, which is currently available on the website of the United States
federal courts.
In response to reader feedback, I have added appendices containing the full text of
related statutes and Supreme Court Rules that are discussed in the commentary.
The guide is intended to assist legal practitioners to understand and apply the new
rules. It is not a substitute for legal or other professional services. If legal or other
professional assistance is required, the services of a competent attorney or other
professional should be sought.
Gino L. DiVito
Tabet DiVito & Rothstein LLC
December 23, 2010
xx
xxi
xxii
ILLINOIS RULES OF EVIDENCE
Committee Commentary
On January 1, 2011, by order of the Illinois Supreme Court, the Illinois Rules of
Evidence will govern proceedings in the courts of Illinois except as otherwise
provided in Rule 1101.
On November 24, 2008, the Illinois Supreme Court created the Special Supreme
Court Committee on Illinois Evidence (Committee) and charged it with codifying the
law of evidence in the state of Illinois.
Currently, Illinois rules of evidence are dispersed throughout case law, statutes,
and Illinois Supreme Court rules, requiring that they be researched and ascertained
from a number of sources. Trial practice requires that the most frequently used rules
of evidence be readily accessible, preferably in an authoritative form. The
Committee believes that having all of the basic rules of evidence in one easily
accessible, authoritative source will substantially increase the efficiency of the trial
process as well as expedite the resolution of cases on trial for the benefit of the
practicing bar, the judiciary, and the litigants involved. The Committee further
believes that the codification and promulgation of the Illinois Rules of Evidence will
serve to improve the trial process itself as well as the quality of justice in Illinois.
It is important to note that the Illinois Rules of Evidence are not intended to
abrogate or supersede any current statutory rules of evidence. The Committee sought
to avoid in all instances affecting the validity of any existing statutes promulgated
by the Illinois legislature. The Illinois Rules of Evidence are not intended to preclude
the Illinois legislature from acting in the future with respect to the law of evidence
in a manner that will not be in conflict with the Illinois Rules of Evidence, as
reflected in Rule 101.
Based upon the charge and mandate to the Committee, and consistent with the
above considerations, the Committee drafted the Illinois Rules of Evidence in
accordance with the following principles:
(1) Codification: With the exception of the two areas discussed below under
“Recommendations,” the Committee incorporated into the Illinois Rules of Evidence
the current law of evidence in Illinois whenever the Illinois Supreme Court or the
Illinois Appellate Court had clearly spoken on a principle of evidentiary law within
the last 50 or so years. Thus, Rule 702 retains the Frye standard for expert opinion
evidence pursuant to the holding in Donaldson v. Central Illinois Public Service Co.,
199 Ill. 2d 63, 767 N.E.2d 314 (2002). The Committee reserved Rule 407, related to
subsequent remedial measures, because Appellate Court opinions are sufficiently in
conflict concerning a core issue that is now under review by the Supreme Court.
Also reserved are Rules 803(1) and 803(18), because Illinois common law does not
recognize either a present sense impression or a learned treatise hearsay exception.
(2) Statute Validity: The Committee believes it avoided affecting the validity
of existing statutes promulgated by the Illinois legislature. There is a possible
conflict between Rule 609(d) and section 5–150(1)(c) of the Juvenile Court Act (705
ILCS 405/5–150(1)(c)) with respect to the use of juvenile adjudications for
impeachment purposes. That possible conflict, however, is not the result of
promulgation of Rule 609(d) because that rule simply codifies the Illinois Supreme
Court’s adoption of the 1971 draft of Fed. R. Evid. 609 in People v. Montgomery, 47
Ill.2d 510, 268 N.E.2d 695 (1971). As noted in the Comment to Rule 609(d), the
present codification is not intended to resolve the issue concerning the effect of the
statute. Moreover, the Illinois Rules of Evidence permit the Illinois legislature to act
in the future with respect to the law of evidence as long as the particular legislative
enactment is not in conflict with an Illinois Supreme Court rule or an Illinois
Supreme Court decision. See Ill. R. Evid. 101.
(3) Modernization: Where there was no conflict with statutes or recent Illinois
Supreme Court or Illinois Appellate Court decisions, and where it was determined
to be beneficial and uniformly or almost uniformly accepted elsewhere, the
Committee incorporated into the Illinois Rules of Evidence uncontroversial
developments with respect to the law of evidence as reflected in the Federal Rules
of Evidence and the 44 surveyed jurisdictions. The 14 instances of modernization of
note are as follows:
(1) Rule 106. Remainder of or Related Writings or Recorded Statements.
Rule 106 permits the admission contemporaneously of any other part
of a writing or recording or any other writing or recording which “ought
in fairness” be considered at the same time. Prior Illinois law appears to
have limited the concept of completeness to other parts of the same
writing or recording or an addendum thereto. The “ought in fairness”
requirement allows admissibility of statements made under separate
circumstances.
(2) Rule 406. Habit; Routine Practice.
Rule 406 confirms the clear direction of prior Illinois law that
evidence of the habit of a person or of the routine practice of an
organization, whether corroborated or not and regardless of the presence
of eyewitnesses, is relevant to prove that the conduct of the person or
organization on a particular occasion was in conformity with the habit or
routine practice.
(3) Rule 408. Compromise and Offers to Compromise.
Prior Illinois law did not preclude admissibility of statements made
in compromise negotiations unless stated hypothetically. Because they
were considered a trap for the unwary, Rule 408 makes such statements
inadmissible without requiring the presence of qualifying language.
-2-
(4) Rule 613(a). Examining Witness Concerning Prior Statement.
Rule 613(a) provides that a prior inconsistent statement need not be
shown to a witness prior to cross-examination thereon. Illinois Central
Railroad v. Wade, 206 Ill. 523, 69 N.E. 565 (1903), was to the contrary.
(5) Rule 801(d). Statements Which Are Not Hearsay.
Rule 801(d)(1)(A) codifies an Illinois statute (725 ILCS 5/115–10.1)
that applies only in criminal cases. It makes admissible as “not hearsay”
(rather than as a hearsay exception) a prior inconsistent statement of a
declarant who testifies at a trial or a hearing and is subject to cross-
examination, when the prior inconsistent statement was given under oath
at a trial, hearing, or other proceeding, or in a deposition, or under other
specified circumstances. The rule does not apply in civil cases. Rule
801(d)(1)(B) also codifies an Illinois statute (725 ILCS 5/115–12). It
makes admissible as “not hearsay” a declarant’s prior statement of
identification of a person made after perceiving that person, when the
declarant testifies at a trial or hearing in a criminal case and is subject to
cross-examination concerning the statement. Rule 801(d)(2) provides
substantive admissibility, as “not hearsay,” for admissions of a party-
opponent.
(6) Rule 801(d)(2)(D). Statement by a Party’s Agent or Servant.
Rule 801(d)(2)(D) confirms the clear direction of prior Illinois law
that a statement by a party’s agent or servant concerning a matter within
the scope of the agency or employment, made during the existence of the
relationship, constitutes an admission of a party-opponent.
(7) Rule 803(13). Family Records.
The requirement that the declarant be unavailable and that the
statement be made before the controversy or a motive to misrepresent
arose, Sugrue v. Crilley, 329 Ill. 458, 160 N.E. 847 (1928), have been
eliminated.
(8) Rule 803(14), (15), (19), (20) and (23).
With respect to records of or statements in documents affecting an
interest in property, reputation concerning personal or family history, and
concerning boundaries or general history, and judgments as to personal,
family or general history or boundaries, Illinois law in each area was
sparse or nonexistent.
(9) Rules 803(16) and 901(b)(8). Statements in Ancient Documents.
The 30-year limitation to real property, Reuter v. Stuckart, 181 Ill.
529, 54 N.E. 1014 (1899), is relaxed in favor of 20 years without subject
matter restriction.
-3-
(10) Rule 804(b)(3). Statement Against Interest.
Rule 804(b)(3) makes applicable to the prosecution as well as the
defense the requirement that in a criminal case a statement tending to
expose the declarant to criminal liability is not admissible as a hearsay
exception unless corroborating circumstances clearly indicate the
trustworthiness of the statement.
(11) Rule 806. Attacking and Supporting Credibility of Declarant.
Rule 806 dispenses with the requirement of an opportunity to deny
or explain an inconsistent statement or conduct of an out-of-court
declarant under all circumstances when a hearsay statement is involved.
Whether Illinois law had already dispensed with the requirement with
respect to a deposition was unclear.
(12) Rule 902(11). Certified Records of Regularly Conducted Activity.
Self-authentication of business records is provided by Rule 902(11),
following the model of Fed. R. Evid. 902(11) and 902(12) and 18 U.S.C.
3505.
(13) Rule 1004. Admissibility of Other Evidence of Contents.
Rule 1004 does not recognize degrees of secondary evidence
previously recognized in Illinois. Illinois Land & Loan Co. v. Bonner, 75
Ill. 315 (1874). In addition, it is no longer necessary to show that
reasonable efforts were employed beyond available judicial process or
procedure to obtain an original possessed by a third party. Prussing v.
Jackson, 208 Ill. 85, 69 N.E. 771 (1904).
(14) Rule 1007. Testimony or Written Admission of Party.
The Rule 1007 provision that testimony or a written admission may
be employed to prove the contents of a document appears never before
to have been the law in Illinois. Bryan v. Smith, 3 Ill. 47 (1839).
(4) Recommendations: The Committee recommended to the Illinois Supreme
Court a limited number of changes to Illinois evidence law (1) where the
particularized evidentiary principle was neither addressed by statute nor specifically
addressed in a comprehensive manner within recent history by the Illinois Supreme
Court, and (2) where prior Illinois law simply did not properly reflect evidentiary
policy considerations or raised practical application problems when considered in
light of modern developments and evidence rules adopted elsewhere with respect to
the identical issue. The Committee identified, and the Illinois Supreme Court
approved, recommendations in only two areas:
(a) Opinion testimony is added to reputation testimony as a method of proof
in Rule 405, when character evidence is admissible, and in Rule 608 with respect
to character for truthfulness:
-4-
Rule 405.
METHODS OF PROVING CHARACTER
(a) Reputation or Opinion. In all cases in which evidence of
character or a trait of character of a person is admissible, proof may
be made by testimony as to reputation, or by testimony in the form of
an opinion.
(b) Specific Instances of Conduct.
(1) In cases in which character or a trait of character of a
person is an essential element of a charge, claim, or defense,
proof may also be made of specific instances of that person’s
conduct; and
(2) In criminal homicide or battery cases when the
accused raises the theory of self-defense and there is
conflicting evidence as to whether the alleged victim was the
aggressor, proof may also be made of specific instances of the
alleged victim’s prior violent conduct.
Rule 608.
EVIDENCE OF CHARACTER WITNESS
The credibility of a witness may be attacked or supported by
evidence in the form of opinion or reputation, but subject to these
limitations: (1) the evidence may refer only to character for
truthfulness or untruthfulness, and (2) evidence of truthful character
is admissible only after the character of the witness for truthfulness
has been attacked by opinion or reputation evidence or otherwise.
(b) Rule 803(3) eliminates the requirements currently existing in Illinois law,
that do not exist in any other jurisdiction, with respect to statements of then
existing mental, emotional, or physical condition, that the statement be made by
a declarant found unavailable to testify, and that the trial court find that there is
a “reasonable probability” that the statement is truthful:
RULE 803.
HEARSAY EXCEPTIONS;
AVAILABILITY OF DECLARANT IMMATERIAL
The following are not excluded by the hearsay rule, even though
the declarant is available as a witness:
-5-
***
(3) Then Existing Mental, Emotional, or Physical
Condition. A statement of the declarant's then existing state
of mind, emotion, sensation, or physical condition (such as
intent, plan, motive, design, mental feeling, pain, and bodily
health), but not including:
(A) a statement of memory or belief to prove the
fact remembered or believed unless it relates to the
execution, revocation, identification, or terms of
declarant's will; or
(B) a statement of declarant’s then existing state
of mind, emotion, sensation, or physical condition to
prove the state of mind, emotion, sensation, or
physical condition of another declarant at that time or
at any other time when such state of the other
declarant is an issue in the action.
-6-
the Code of Criminal Procedure (725 ILCS 5/115), excluding medical records and
police investigative records. The Illinois Rules of Evidence in Rule 803(6), records
of regularly conducted activity (i.e., business records), and in Rule 803(8), public
records and reports, while retaining the exclusions described above, removes the
difference between civil and criminal business and public records in favor of the
traditional and otherwise uniformly accepted division between business records, Rule
803(6), and public records and reports, Rule 803(8), both applicable in civil and
criminal cases.
RULE 803(6)-(10).
HEARSAY EXCEPTIONS;
AVAILABILITY OF DECLARANT IMMATERIAL
The following are not excluded by the hearsay rule, even though
the declarant is available as a witness:
***
(6) Records of regularly conducted activity. A
memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses,
made at or near the time by, or from information transmitted
by, a person with knowledge, if kept in the course of a
regularly conducted business activity, and if it was the regular
practice of that business activity to make the memorandum,
report, record or data compilation, all as shown by the
testimony of the custodian or other qualified witness, or by
certification that complies with Rule 902(11), unless the
source of information or the method or circumstances of
preparation indicate lack of trustworthiness, but not including
in criminal cases medical records. The term "business" as
used in this paragraph includes business, institution,
association, profession, occupation, and calling of every kind,
whether or not conducted for profit.
(7) Absence of Entry in Records Kept in Accordance
With the Provisions of Paragraph (6). Evidence that a
matter is not included in the memoranda reports, records, or
data compilations, in any form, kept in accordance with the
provisions of paragraph (6), to prove the nonoccurrence or
nonexistence of the matter, if the matter was of a kind of
which a memorandum, report, record, or data compilation
was regularly made and preserved, unless the sources of
information or other circumstances indicate lack of
trustworthiness.
-7-
(8) Public records and reports. Records, reports,
statements, or data compilations, in any form, of public
offices or agencies, setting forth (A) the activities of the
office or agency, or (B) matters observed pursuant to duty
imposed by law as to which matters there was a duty to
report, excluding, however, police accident reports and in
criminal cases medical records and matters observed by
police officers and other law enforcement personnel, unless
the sources of information or other circumstances indicate
lack of trustworthiness.
(9) Records of Vital Statistics. Facts contained in
records or data compilations, in any form, of births, fetal
deaths, deaths, or marriages, if the report thereof was made to
a public office pursuant to requirements of law.
(10) Absence of Public Record or Entry. To prove the
absence of a record, report, statement, or data compilation, in
any form, or the nonoccurrence or nonexistence of a matter
of which a record, report, statement, or data compilation, in
any form, was regularly made and preserved by a public
office or agency, evidence in the form of a certification in
accordance with Rule 902, or testimony, that diligent search
failed to disclose the record, report, statement, or data
compilation, or entry.
(6) Referenced Statutes: Numerous existing statutes, the validity of which are
not affected by promulgation of the Illinois Rules of Evidence, Ill. R. Evid. 101,
relate in one form or another to the law of evidence. The Committee felt it was
inappropriate, unnecessary and unwise to refer specifically to the abundance of
statutory authority in an Appendix or otherwise. Reference is, however, made in the
body of the text of the Illinois Rules of Evidence to certain statutes by citation or
verbatim incorporation. Such references and the reasons therefor are as follows:
(1) Rule 404(a)(2): Character testimony of the alleged victim offered by the
accused is specifically made subject to the limitations on character evidence
contained in the rape shield statute, 725 ILCS 5/115–7.
(2) Rule 404(b): The bar to evidence of other crimes, wrongs, or acts to prove
character to show conformity is made subject to the provisions of 725 ILCS
5/115–7.3, dealing with enumerated sex-related offenses, along with 725 ILCS
5/115–7.4 and 725 ILCS 5/115–20, dealing with domestic violence and other
enumerated offenses, all of which allow admissibility of other crimes, wrongs,
or acts under certain circumstances.
(3) Rule 409: The parallel protection afforded by 735 ILCS 5/8–1901 with
respect to payment of medical or similar expenses is specifically referenced in
Rule 409 to preclude any possibility of conflict.
-8-
(4) Rule 611(c): 735 ILCS 5/2–1102 provides a definition of adverse party
or agent with respect to hostile witnesses as to whom interrogation may be by
leading questions.
(5) Rule 801(d)(1): The provisions of 725 ILCS 5/115–10.1, dealing with
prior inconsistent statements in a criminal case, are incorporated nearly verbatim
in Rule 801(d)(1)(A) in the interests of completeness and convenience. Similar
treatment is given to prior statements of identification, 725 ILCS 5/115–12, in
Rule 801(d)(1)(B).
(6) Rule 803(4)(B): 725 ILCS 5/115–13, dealing with statements by the
victim to medical personnel in sexual abuse prosecutions, is included verbatim
in recognition that the statute admits statements to examining physicians while
the generally applicable provisions of Rule 803(4)(A) do not.
Respectfully Submitted,
Honorable Donald C. Hudson, Chair
Honorable Warren D. Wolfson (retired), Vice-Chair
Professor Ralph Ruebner, Reporter
Professor Michael H. Graham, Advisor
Honorable Robert L. Carter
Honorable Tom Cross, Illinois State Representative
Honorable John J. Cullerton, President of the Illinois State Senate
Honorable Gino L. DiVito (retired)
Honorable Nathaniel R. Howse, Jr.
Honorable Heidi Ladd
Eileen Letts, Esquire
Shannon M. McNulty, Esquire
Robert Neirynck, Esquire
Honorable Dennis J. Porter
Michael Scodro, Solicitor General
Todd Smith, Esquire
Brian K. Trentman, Esquire
Michael J. Warner, Esquire
Honorable Arthur J. Wilhelmi, Illinois State Senator
-9-
THE ILLINOIS AND FEDERAL RULES OF EVIDENCE
ARTICLE I. GENERAL PROVISIONS
COMMENTARY
the legislature from doing so”). See, also, Supreme Court Rule 1 [v. Walton], 179 Ill. 2d [519], at 528 [(1997)]. The
(asserting that “[g]eneral rules apply to both civil and criminal separate spheres of authority exercised by each
proceedings” and that “[t]he rules on proceedings in the trial branch may “overlap.” Kunkel, 179 Ill. 2d at 528;
courts, together with the Civil Practice Law and the Code of Best [v. Taylor Machine Works], 179 Ill. 2d [367]
Criminal Procedure, shall govern all proceedings in the trial at 411 [(1997)]. The law of evidence is one area in
court, except to the extent that the procedure in a particular which an overlap between the spheres of authority
kind of action is regulated by a statute other than the Civil exercised by the judicial and legislative branches
Practice Law.” exists. Although this court is empowered to pro-
mulgate rules regarding the admission of evidence
Peterson: Separation of Powers and the Supreme Court’s Primary
Constitutional Authority over Court Proceedings at trial, the General Assembly may legislate in
People v. Drew Peterson, 2017 IL 120331, offers a compre- this area without necessarily offending separation
hensive explanation of the principles that support the separa- of powers. First National Bank of Chicago v.
tion of powers concerning the rules of evidence: King, 165 Ill. 2d 533, 542 (1995) (citing People
“[The judicial power, which includes rulemaking v. Rolfingsmeyer, 101 Ill. 2d 137, 140 (1984));
authority to regulate the trial of cases,] necessarily accord Ill. Rs. Evid., Committee Commentary (eff.
extends to the adoption of rules governing the Jan. 1, 2011) (“Illinois Rules of Evidence are not
admission of evidence at trial, an authority this intended to preclude the Illinois legislature from
court has frequently exercised. See, e.g., People acting in the future with respect to the law of
v. Lerma, 2016 IL 118496, ¶ 24 (recognizing evidence”). Because the legislature is the branch
that the research concerning eyewitness identi- of government charged with the determination of
fication “is well settled, well supported, and in public policy, it has “the concurrent constitutional
appropriate cases a perfectly proper subject for authority to enact complementary statutes.” People
expert testimony” at trial); People v. Gard, 158 v. Walker, 119 Ill. 2d 465, 475 (1988).
Ill. 2d 191, 201, 204 (1994) (acknowledging that Ҧ 31 Notwithstanding this overlap between the
“[t]his court has consistently held evidence per- judicial and legislative branches, this court retains
taining to polygraph examination of a defendant primary constitutional authority over court pro-
generally inadmissible” and holding that evidence cedure. Kunkel, 179 Ill. 2d at 528. Accordingly,
of polygraph examination of a witness is also where an irreconcilable conflict exists between
inadmissible); Wilson v. Clark, 84 Ill. 2d 186, 196 a legislative enactment and a rule of this court
(1981) (adopting Federal Rules of Evidence 703 on a matter within the court’s authority, the rule
and 705 concerning expert opinions offered at will prevail. Id. (citing Walker, 119 Ill. 2d at 475-
trial); People v. Montgomery, 47 Ill. 2d 510, 516- 76); see also Ill. R. Evid. 101 (eff. Jan. 1, 2011)
19 (1971) (adopting then-proposed Federal Rule of (“statutory rule of evidence is effective unless in
Evidence 609, limiting the use of prior convictions conflict with a rule or a decision of the Illinois
to impeach the credibility of a witness). Supreme Court”). We agree with the State that, in
Ҧ 30 The separation of powers clause, however, this instance, the statute and the rule [concerning
is not intended to achieve a “‘complete divorce’” forfeiture by wrongdoing] cannot be reconciled
between the branches of government. Burger v. and the statute must give way to the rule.” People
Lutheran General Hospital, 198 Ill. 2d 21, 33 (2001) v. Peterson, 2017 IL 120331, ¶¶29-31.
(quoting In re J.J., 142 Ill. 2d 1, 7 (1991)); Kunkel
that examination to the issues under review. To be sure, the frequently asked question of whether it is proper to consult and
supreme court frequently has applied the same procedure in cite federal or other out-of-state authority interpreting evidence
other situations when construing a statute that is modeled after rules similar to those adopted in Illinois.
a federal law. But it is comforting to have a direct answer to the
COMMENTARY
COMMENTARY
events affect the ruling.” Wilson, 182 F.3d at circumstances are present, to preserve an issue for appeal, a
565-66. renewal of an objection or an offer of proof must be made.
The court also pointed out that “[a] pretrial ruling is For an example of the application of FRE 103(b)’s definitive
definitive only with respect to subjects it covers” (id. at 568), ruling requirement, see United States v. Bradford, 905 F.3d 497
and, because in the case at bar there was no objection to the (7th Cir. 2018) (holding that, though defendant had made a
misuse of evidence admitted by the trial court, the issue had motion in limine, the motion had not been made with speci-
been forfeited on appeal. From Wilson and subsequent federal ficity as required by FRE 103(a)(1)(B) for it did not cite Rules
circuit court decisions, it is clear that trial court rulings that 404(b) or 403, both of which defendant relied upon on appeal
do not satisfy the rule’s requirement of “definitive” are those and the trial court’s ruling had not been definitive, and further
that are tentative or conditional, or made without prejudice, or holding—under plain error review—that the challenged other
made with the court’s statement that it is willing to reconsider crimes evidence was properly admitted as relevant to prove the
its ruling, or address only a limited subject matter that does charged offense of conspiracy).
not cover trial error alleged to have been made. Where those
416, 423-24 (1971) (objection based on best evidence rule did the defendant to make offers of proof as to testimony of two
not preserve objection based on admission of photographs of witnesses concerning their excluded testimony made it “impos-
stolen television sets); Mikolajczyk v. Ford Motor Co., 231 Ill. sible to determine whether its exclusion could have resulted
2d 516, 557 (2008) (“A party forfeits the right to challenge a in any prejudice to defendant.”). Shenault, at ¶ 12. See also
jury instruction that was given at trial unless it makes a timely People v. Gibbs, 2016 IL App (1st) 140785, ¶¶ 35-37 (holding
and specific objection to the instruction and tenders an alterna- that failure to make a formal or informal offer of proof was fatal;
tive, remedial instruction to the trial court.”). citing supreme court decisions in pointing out that an offer
The takeaway from the principles embodied in the above- of proof that merely summarizes the witness’s testimony in a
cited cases: Attorneys must take care to present the proper basis conclusory manner is inadequate, that counsel must explicitly
or bases for objections. Objecting without stating a basis allows state what the excluded testimony would reveal, and that an
the trial and reviewing courts to assume that the objection was offer of proof must be considerably detailed and specific).
based on relevance, and allows them to rule accordingly. And In People v. Staake, 2017 IL 121755, a prosecution for sec-
failure to state a proper basis for objection allows the trial ond degree murder, the State moved in limine to preclude the
court to rule on the basis provided and the reviewing court to defendant from presenting evidence and argument regarding
consider the propriety of the trial court’s ruling based on the the victim’s refusal to accept medical treatment as the interven-
grounds provided, which in both cases risks forfeiture of an ing cause of the victim’s death—rather than the knife wound
otherwise proper basis. that the defendant had inflicted on the victim. In response to the
Decisions on Offers of Proof (IRE 103(a)(2)) motion in limine, the trial court ruled that, before the defendant
Regarding the requirement of an offer of proof, see People could ask specific questions on cross-examination or make an
v. Peeples, 155 Ill. 2d 422 (1993) (need for offer of proof when argument to the jury concerning the alleged intervening cause
evidence is refused by trial court); and People v. Lynch, 104 Ill. of death, he had to make a proffer through an offer of proof to
2d 194 (1984) (“if a question shows the purpose and materi- show that there was a factual basis, rather than speculation,
ality of the evidence, is in a proper form, and clearly admits for the questioning or argument. On review of the defendant’s
of a favorable answer, the proponent need not make a formal failure to make the required offer of proof, the supreme court
offer of what the answer would be, unless the trial court asks pointed out: (1) that the defendant was not categorically pro-
for one”). See also People v. Andrews, 146 Ill. 2d 114, 420-21 hibited from cross-examining State witnesses on the issue of
(1992) (“It is well recognized that the key to saving for review causation nor from arguing to the jury that the victim’s refusal
an error in the exclusion of evidence is an adequate offer of of medical treatment was an intervening cause of death; (2) that
proof in the trial court.”); People v. Thompkins, 181 Ill. 2d 1, the defendant could have explained, outside the jury’s pres-
9-10 (1998) (“Trial courts are required to permit counsel to ence, what testimony he expected to elicit; and (3) that, even
make offers of proof, and a refusal to permit an offer generally after testimony was given at trial, the defendant could have
is error. *** The two primary functions of an offer of proof are requested permission to argue to the jury that the State had
to disclose to the trial judge and opposing counsel the nature failed to prove causation based on the “ample evidence” that
of the offered evidence, enabling them to take appropriate had been unknown when the trial court made its ruling on the
action, and to provide the reviewing court with a record to motion in limine. Based on those considerations, the supreme
determine whether exclusion of the evidence was erroneous court concluded that the defendant’s failure to provide the
and harmful.”). required offer of proof properly resulted in the forfeiture of his
For a post-codification case that stressed the need for offers right to cross-examine witnesses on the issue of the intervening
of proof in order to determine a claim on appeal, see People cause of death or to present argument on that topic.
v. Shenault, 2014 IL App (2d) 130211 (holding that failure of
People v. Wright, 2017 IL 119561, ¶¶79-84, illustrates that, his fifth amendment right not to testify. Thus, the codefendant
after an offer of proof, the proffer of evidence subject to the was then deemed unavailable for purposes of IRE 804(b)(3).
offer needs to occur at the proper time for the evidence to be However, there was no indication that the defendant sought to
admitted. In Wright, during the State’s case-in-chief, the pro se call the codefendant for examination concerning his statement,
defendant made an offer of proof that a detective would testify or that he otherwise sought to obtain the statement’s admission.
that his codefendant said that he had committed the charged Because those efforts had not occurred after the codefendant
offense of armed robbery with a BB gun. The trial court sus- was deemed unavailable to testify, the supreme court held that
tained the State’s objection to the defendant’s attempt to elicit the trial court had properly denied admission of the codefen-
the codefendant’s statement on cross-examination. Later, in a dant’s statement.
hearing outside the jury’s presence, the codefendant invoked
Author’s Commentary on Ill. R. Evid. 103(b)
The current version of IRE 103(b) was added by the Illinois late court held that the defendants’ objections based only on
Supreme Court effective October 15, 2015. It replaced the rule foundation did not preserve their motion in limine objections
that previously was designated as IRE 103(b), which addressed to the testimony of the plaintiffs’ expert witness that had been
(and continues to address) a different topic. The replaced rule based on two other grounds.
is now designated IRE 103(c). For reasons provided below, Also, in considering Denson and the non-adoption of FRE
current IRE 103(b), which provides the Illinois standards for 103(b), the highly relevant decision in Arkebauer v. Springfield
preserving a claim of error for appeal, differs substantially from Clinic, 2021 IL App (4th) 190697, provides ample evidence
FRE 103(b). for the absolute need for a contemporary objection in a civil
Non-Adoption of FRE 103(b) jury trial where an in limine motion has been denied. In that
Illinois has adopted its own version of Rule 103(b). FRE case, the plaintiff’s pretrial motions in limine to exclude certain
103(b) has not been adopted for it is inconsistent with Illinois evidence had been denied by the trial court, but the plaintiff
law because, in a civil case, Illinois requires the making in this civil case failed to make a contemporaneous objection
of a contemporaneous trial objection or an offer of proof to during the jury trial. To overcome the application of forfeiture
preserve an error for appeal—even after an in limine ruling. on appeal, the plaintiff contended “that the court’s denial of her
See, e.g., Ill. State Toll Highway Auth. v. Heritage Standard motions in this case were so definite and controlling that she
Bank and Trust Co., 163 Ill. 2d 498, 502 (1994) (“the law is was not required to raise trial objections to preserve her evi-
well established that the denial of a motion in limine does not dentiary challenges.” Id. at ¶62. The appellate court disagreed
preserve an objection to disputed evidence later introduced at with that assertion, and found that no such “exception” to the
trial. The moving party remains obligated to object contempo- forfeiture rule existed. Id. Rejecting the contrary pre-codifica-
raneously when the evidence is offered at trial.”). See also the tion decision in Cunningham v. Millers General Insurance Co.,
following examples of supreme and appellate court decisions 227 Ill App. 3d 201 (1992), “to the extent it holds a trial court’s
in civil cases: Simmons v. Graces, 198 Ill. 2d 541, 569 (2001); ruling on a motion in limine may be found to be ‘so definite and
Thornton v. Garcini, 237 Ill. 2d 100 (2009); Snelson v. Kamm, unconditional’ that it obviates the need for a subsequent trial
204 Ill. 2d 1, 23 (2003); Sinclair v. Berlin, 325 Ill. App. 3d 458, objection” (Arkebauer at ¶ 68), the appellate court reasoned
471 (2001); Romanek-Golub & Co. v. Anvan Hotel Corp., 168 that “applying the “exception” in these circumstances would
Ill. App. 3d 1031 (1988). result in its swallowing the contemporaneous objection rule,
See particularly People v. Denson, discussed in the follow- rendering the rule meaningless.” Id. at ¶67.
ing paragraphs, and the decision in Sheth v. SAB Tool Supply
Co., 2013 IL App (1st) 110156, ¶¶ 107-112, where the appel-
not. The difference is that the civil rule requires In the medical malpractice case of Crim v. Dietrich, 2020
a contemporaneous trial objection, whereas the IL 124318, plaintiffs, the mother and father of the injured new-
criminal rule requires that the issue be raised in born baby, alleged that defendant, the doctor who delivered
the posttrial motion. In other words, both the civil the baby: (1) failed to obtain the mother’s informed consent to
rule and the criminal rule require the objecting perform a natural birth rather than a Caesarean section, despite
party to bring the in limine issue to the trial court’s possible risks associated with the baby’s large size; and (2) was
attention one additional time. In civil cases, that guilty of professional negligence during the delivery, resulting
is through a contemporaneous trial objection. In in the baby’s injuries.
criminal cases, that is through the posttrial motion. At the close of plaintiffs’ case during a jury trial, the trial court
And this distinction makes perfect sense because, granted a partial directed verdict for defendant on the informed
consent allegations. But the jury trial continued—limited to the the statutory requirements of section 1202” (id. at ¶ 39); and
remaining professional negligence allegations—resulting in a (4) held that “the proposition that, ‘[w]hen a court of review
verdict for defendant on those allegations. Plaintiffs did not file does not determine the merits of a case but merely reverses
a posttrial motion on the jury’s verdict. They instead appealed and remands without specific directions, the judgment of the
the circuit court’s ruling on the partial directed verdict on the court below is entirely abrogated and the cause stands as if no
informed consent allegations. The appeal resulted in the appel- trial had occurred,’” did not apply in this case because “the
late court’s reversing the directed verdict ruling and remanding appellate court’s mandate could not remand the matter for a
the case to the circuit court “for such other proceedings as new trial on an issue never raised and not considered.” Id. at
required by order of this court.” Crim, at ¶50. ¶40.
On remand, the parties disputed whether the appellate Crim provides two significant takeaways. It emphatically
court’s mandate allowed for a trial de novo on all issues, confirms the need for a posttrial motion in civil jury trials to
including the allegations concerning professional negligence, preserve appellate issues, as required by section 2-1202 and by
which were determined by the jury. To resolve that issue, the precedential reviewing court decisions interpreting and apply-
trial court certified a question for the appellate court under Ill. ing that statute. And it emphasizes the forfeiture effect of failing
S. Ct. R. 308. The certified question asked whether the appellate to file a posttrial motion after a civil jury trial, where an appeal
court’s remand required a trial de novo on all claims. On this is taken on the trial court’s alleged error in granting summary
second review, the appellate court granted the interlocutory judgment or a partial directed verdict. The consequence of
appeal, answering the certified question in the affirmative. The not filing a posttrial motion in those instances, is that, even
supreme court then granted defendant’s petition for leave to if the appeal is successful, any issue determined by the jury is
appeal. forfeited and not subject to retrial.
In its review—with a recently appointed justice not partic- Crim did not address whether the appellate court’s rever-
ipating, another justice writing in special concurrence, and a sal of the trial court’s partial directed verdict was proper. Its
third justice dissenting—a four-justice majority of the supreme significance is in its holding that, because the directed verdict
court first analyzed relevant supreme and appellate court occurred by virtue of the trial court’s ruling and not a jury deter-
decisions and the requirements of section 2-1202 of the Code mination, the informed consent issue was properly appealed
of Civil Procedure (735 ILCS 5/2-1202), and it: (1) held that the and properly remanded for trial. But, because of the absence
appellate court’s review and reversal of the trial court’s grant of a posttrial motion, there could be no de novo trial on the
of partial directed verdict on the informed consent allegations professional negligence issues determined by the jury. In sum,
was proper without a posttrial motion, because the filing of although on remand defendant could be tried on the informed
such a motion was not necessary to preserve appellate review consent issues, plaintiffs had forfeited the opportunity to pursue
on that issue, for the ruling was not based on a jury’s verdict; on remand the retrial of their claims related to defendant’s
(2) cited “sound policy reasons behind the requirement that alleged professional negligence during the delivery of the baby.
a litigant file a post-trial motion following a jury case” (id. at
Doe v. Parrillo: Need for a Record of Proceedings for Appellate
¶ 34), in holding that “[t]he plain language of the statute and Review
case law interpreting section 2-1202, requires a litigant to file The supreme court’s recent decision in Doe v. Parrillo,
a post-trial motion in order to challenge the jury’s verdict even 2021 IL 126577, where defense counsel knowingly did not
when the circuit court enters a partial directed verdict as to participate in the jury trial and did not provide a court reporter
other issues in the case” (id. at ¶ 35); (3) held that the mere fil- of the proceedings, provides numerous examples of the
ing of a notice of appeal concerning a jury verdict where there non-reviewability of appellate arguments where the record on
had been no posttrial motion “lies in direct contradiction with appeal contains no trial transcript of proceedings related to the
numerous issues presented to the reviewing court. The opinion offer briefs on close or questionable evidence questions and
illustrates the importance of supplying a court reporter in civil allows the court an opportunity to consider proper rulings
proceedings. that will provide an evidence blueprint for the trial and avoid
disputes during trial, especially at its outset during opening
Summary of IRE 103(b)’s Requirements for Preserving Issues for
Appeal after an In Limine Ruling statements.
In sum, in an Illinois courtroom, to preserve an issue for In Reidelberger v. Highland Body Shop, Inc., 83 Ill.2d 545
appeal where there has been a prior in limine ruling: (1981), a decision solely related to whether motion in limine
(1) in all civil trials, a contemporaneous renewal orders had been violated during a jury trial, the supreme court
of an objection or offer of proof is necessary (IRE made the following pronouncements about a motion in limine
103(b)(3)); made to exclude evidence:
(2) in all criminal trials, a contemporaneous “An in limine motion permits a party to obtain an
renewal of an objection or offer of proof is not order before trial excluding inadmissible evidence
necessary (IRE 103(b)(2)); and prohibiting interrogation concerning such
(3) in all criminal trials and in all civil jury trials, a evidence without the necessity of having the
posttrial motion is necessary (IRE 103(b)(4)); and questions asked and objections thereto made in
(4) in all civil non-jury trials, a posttrial motion is front of the jury. Thus, the moving party will be
not necessary (IRE 103(b)(4)). protected from whatever prejudicial impact the
Of course, a contemporaneous trial objection or offer of mere asking of the questions and the making of
proof is necessary to preserve an issue for review in all civil and the objections may have upon a jury. [Citation].
criminal trials where there has been no prior in limine ruling The ability to restrict interrogation makes the in
(IRE 103(b)(1)). limine order a powerful weapon. This power, how-
Motions in Limine ever, also makes it a potentially dangerous one.
Although both federal and Illinois’ version of Rule 103(b) Before granting a motion in limine, courts must be
refer to rulings made before trial without employing the phrase certain that such action will not unduly restrict the
“motion in limine,” a phrase nowhere to be found in the codi- opposing party’s presentation of its case. Because
fied evidence rules, such motions are commonplace in felony of this danger, it is imperative that the in limine
prosecutions and in high-stake civil cases. The Latin contained order be clear and that all parties concerned have
in the phrase is often misinterpreted to mean a motion to limit an accurate understanding of its limitations.”
the evidence. But in limine means “at the start” or “on the Reidelberger, 83 Ill.2d at 549-50.
threshold.” So, the motion is designed to be made before People v Zimmerman, 2018 IL App (4th) 170695, offers a
evidence is offered—usually well before the start of trial, but comprehensive discussion of the rationale for motions in limine
sometimes during trial but before the evidence is offered. And (as well as for offers of proof), and it offers suggestions for
the motion is not limited to excluding evidence deemed to be implementing such motions, both for the admission and for the
inadmissible, although that is the basis for its most frequent exclusion of evidence:
application. When used for that purpose, the intent is to pre- “A motion in limine is addressed to a court’s inher-
vent the opposing party from even initiating questions on topics ent power to admit or exclude evidence. These
considered inadmissible, especially areas that might be unduly motions are designed to call to the attention of a
prejudicial to the moving party’s case. But the motion also may trial court, in advance of trial, some evidence that
be used to ensure the admissibility of evidence. Its use before is potentially irrelevant, inadmissible, or prejudi-
trial for that purpose provides an opportunity for both sides to cial and to obtain a pretrial ruling from the court
excluding or permitting the evidence. The utility of is worse than no order at all. Before granting a
motions in limine comes from the fact that they are motion in limine, courts must be certain that such
typically ruled on significantly in advance of trial. action will not unduly restrict the opposing party’s
As a result, motions in limine often achieve great presentation of its case.
savings of time and judicial efficiency, and if they “One difficulty common to all motions in limine is
resolve difficult evidentiary issues prior to trial, that they occur—by definition—out of the normal
they can greatly encourage settlement or guilty trial context, and resolving such a motion requires
pleas and streamline preparations for trial. Seeking the trial court to determine what that context will
a ruling in advance of trial also greatly assists the be. Thus, the court must receive offers of proof
trial court by giving it adequate time to review and consisting either of live testimony or counsel’s
consider the evidentiary issue, research the mat- representations that the court finds sufficiently
ter, and consider whether to hold an evidentiary credible and reliable. ***
hearing. For these and other reasons, we strongly “An offer of proof serves dual purposes: (1) it
encourage litigants to take advantage of motions discloses to the court and opposing counsel the
in limine. nature of the offered evidence, thus enabling
“The Illinois Supreme Court has called motions the court to take appropriate action, and (2) it
in limine powerful and potentially dangerous provides the reviewing court with an adequate
weapons because of their ability to restrict evi- record to determine whether the trial court’s
dence. Reidelberger v. Highland Body Shop, Inc., action was erroneous. An offer of proof may be
83 Ill.2d 545, 550, 416 N.E.2d 268, 271 (1981). formal or informal, but an informal offer of proof
Accordingly, such motions must be specific and must identify the complained-of evidence with
allow the court and the parties to understand what particularity. An offer of proof is inadequate if it
evidence is at issue. Written motions are strongly is a mere summary or offers unsupported specu-
preferred, especially whenever complicated lation about the evidence. While an offer of proof
or sensitive evidence is at issue. This allows the assists the parties, the trial court, and a reviewing
movant to carefully identify the evidence sought to court in determining the evidence at issue, a court
be excluded and articulate his or her argument in is disadvantaged in ruling on a motion in limine
support, preventing confusion and misunderstand- because it is considered in a vacuum, before the
ing by defining the evidence at issue and capturing presentation of the full evidence at trial that may
the movant’s arguments. If nothing else, a written justify admission or require exclusion.
motion allows the parties and court to refer to a “The rules for offers of proof apply with equal
fixed version of the movant’s request. force to motions in limine.
“Likewise, rulings on motions in limine should “Depending upon the nature of the evidentiary
be in writing so as to prevent confusion and issue before it, the court has vast discretion as
misunderstanding. Trial judges should attempt to to how it will conduct the hearing on a motion
enter narrow in limine orders, anticipate proper in limine—that is, requiring live witnesses or
evidence that might be excluded by the orders, representations, affidavits, or whatever—and the
and make the orders clear and precise so that all court has vast discretion as to how detailed such
parties concerned have an accurate understanding a hearing will be, as well.” People v Zimmerman,
of their limitations. An unclear order in limine 2018 IL App (4th) 170695, ¶¶ 134-138 (internal
citations, except for the first Reidelberger citation, by requiring the statement of the specific grounds
and all internal quotation marks omitted). urged as support for the claim of error, the rule
allows a reviewing court to ascertain from the
Need for Contemporaneous Trial Objection Where There Has
Been No In Limine Ruling—Even in Bench Trials record whether the trial court has been afforded
A caveat for criminal defense attorneys: the holding in an adequate opportunity to reassess the allegedly
Denson that excuses the renewal of an objection in a criminal erroneous rulings. Third, by requiring the litigants
trial after an unfavorable ruling on a motion in limine is limited. to state the specific grounds in support of their
Denson does not excuse the failure to make a contemporane- contentions, it prevents them from stating mere
ous trial objection in a criminal case—jury or non-jury—where general objections and subsequently raising on
there has been no prior in limine ruling. appeal arguments which the trial judge was never
And note that there is no exception for procedural default given an opportunity to consider. [Citations.] The
in bench trials. The proposition that, in a bench trial, the trial rule***has the salutary effect of promoting both
judge is presumed to consider only admissible evidence does the accuracy of decision making and the elimina-
not excuse the need to make a contemporaneous trial objection tion of unnecessary appeals.” Brown v. Decatur
when needed. See People v. A Parcel of Property Commonly Memorial Hospital, 83 Ill. 2d 344, 349-50 (1980).
Known as 1945 North 31st Street, 217 Ill. 2d 928 (2005) (“this People v. Hall, 2017 IL App (1st) 150918, provides an illus-
proposition [that the trial judge is presumed to consider only tration of how time requirements for filing a posttrial motion
admissible evidence] has never been used by a court as a under section 2-1202 of the Code of Civil Procedure (735 ILCS
means of excusing a party from the type of procedural default 5/2-1202(c)) can be violated or extended. The takeaways from
at issue here; indeed, in the absence of such an objection, an Hall are: (1) the opposing party cannot agree to or waive the
issue, even in a criminal bench trial, has been consistently 30-day jurisdictional requirement for filing a posttrial motion,
deemed procedurally defaulted.”). and (2) in order to obtain an extension of time for filing a
Note, too, that a posttrial motion has been held to be nec- posttrial motion, the trial court must enter an order granting
essary to preserve an issue for review in a criminal case, even the extension.
after a bench trial, long before the holding in Denson. See, for
Claims Not Subject to Forfeiture in Criminal Cases, with Focus
example, section 116-1 of the Code of Criminal Procedure of on Constitutional-Issue Exception to the Forfeiture Rule
1963 (725 ILCS 5/116-1) and People v. Enoch, 146 Ill. 2d 44 The supreme court has held that in criminal cases “three
(1991). types of claims are not subject to forfeiture for failing to file
a posttrial motion: (1) constitutional issues that were properly
Rationale for Posttrial Motion and Need for Court Order to
Obtain an Extension of Time for Filing Posttrial Motion raised at trial and may be raised later in a postconviction peti-
As noted above, a posttrial motion is unnecessary in a civil tion; (2) challenges to the sufficiency of the evidence; and (3)
nonjury trial. For those cases where such a motion is necessary, plain errors.” People v. Cregan, 2014 IL 11360, ¶16.
the supreme court has provided the following rationale: The plain-error exception to forfeiture is addressed in the
“The purpose of the post-trial motion specificity Author’s Commentary on Ill. R. Evid. 103(e), infra. The consti-
rule is threefold. First, it allows the decision maker tutional-issue exception is explained by the supreme court in
who is most familiar with the events of the trial, Cregan:
the trial judge, to review his decisions without the “[T]he constitutional-issue exception recognized
pressure of an ongoing trial and to grant a new in [People v.] Enoch, 122 Ill. 2d 176 (1988)] is
trial if, on reconsideration, he concludes that his based primarily in the interest of judicial econ-
earlier decision was incorrect. [Citations.] Second, omy. The Post-Conviction Hearing Act provides a
mechanism for criminal defendants to assert that of the admissibility of evidence subsumes constitutional mag-
a conviction or sentence resulted from a substan- nitude,” holding that the constitutional-issue exception did not
tial denial of their rights under the United States apply and finding no error in its determination of error under
Constitution, the Illinois Constitution, or both. 725 the second prong of the plain-error test and for ineffective
ILCS 5/122-1(a) (West 2008). Postconviction pro- assistance of counsel).
ceedings permit inquiry into constitutional issues Preference for Renewal of Objection or Offer of Proof
that were not, and could not have been, adjudi- In Illinois, even in criminal cases where it is unnecessary
cated on direct appeal. People v. English, 2013 IL to make a contemporaneous trial objection after the denial of
112890, ¶22. If a defendant were precluded from a motion in limine (and in federal cases because of possible
raising a constitutional issue previously raised at uncertainty as to whether a prior court ruling is “definitive”), it is
trial on direct appeal, merely because he failed to advisable for trial attorneys who receive adverse pretrial rulings
raise it in a posttrial motion, the defendant could to renew contemporaneously an objection or an offer of proof,
simply allege the issue in a later postconviction as a matter of course and outside the presence of the jury. That
petition. Accordingly, the interests in judicial is so because the immediate goal at trial is to admit favorable
economy favor addressing the issue on direct evidence and to bar unfavorable evidence. The renewal of an
appeal rather than requiring defendant to raise it objection or an offer of proof, not only assuredly preserves the
in a separate postconviction petition.” Cregan, at issue for appeal, it presents another opportunity (this time, with
¶18. the benefit of context from admitted evidence) to persuade the
Note that, under Cregan, the constitutional-issue exception trial court to alter its ruling, and it creates an opportunity to
to forfeiture on direct appeal applies only where the issue was make what might be a better record than may have been made
“properly raised at trial,” but not raised in a posttrial motion. during the previous effort to admit or bar the evidence. Also,
Nevertheless, a constitutional issue not raised at trial may be if the effort to persuade the trial court to alter its ruling fails, a
raised in a postconviction proceeding. request should be made that the record reflect a continuing
For appellate court decisions addressing the constitution- objection to the admission or non-admission of the disputed
al-issue exception, see People v. Burnett, 2015 IL App (1st) evidence, especially in civil cases where a contemporaneous
133610, ¶¶ 74-82 (holding that defendant, who did not raise trial objection or offer of proof is required—with the explicit
the constitutional issue at trial, could not invoke the exception, concurrence of the trial court—so that there is no need to make
but holding that the issue could be addressed nevertheless continuous objections in the presence of the jury. See Fleming
because on appeal defendant raised an as-applied constitu- v. Moswin, 2012 IL App 103475-B, ¶¶95-98 (discussing issues
tional challenge to a statute, a challenge that could be raised at related to continuing objections).
any time); People v. Davis, 2019 IL App (1st) 160408, ¶¶52-55 Consistent with the advice provided in the above paragraph,
(where defendant contended the improper admission of oth- the appellate court in People v. Zimmerman, 2018 IL App (4th)
er-crimes gun evidence violated his due process right to a fair 170695, ¶149, offered this sage advice:
trial and thus eliminated the need for a posttrial motion, noting “The interlocutory nature of motions in limine is
that every defendant has a constitutional right to a fair trial why parties should reraise the issues during trial.
protected by due process, but that “not every error that could The trial court is always free to reconsider and
potentially deprive a defendant of that right establishes con- reassess its interlocutory rulings as the trial unfolds
stitutional error” and, pointing out that the supreme court has and context is provided.”
regularly distinguished between evidentiary and constitutional
errors and that it found no case “suggesting that the question
occurred during closing argument.’ (alteration in the Fifth Circuit Court of Appeals, in applying the fourth Olano
original) (quoting Deppe v. Tripp, 863 F.2d 1356, prong provided above, had denied plain error reversal of the
1364 (7th Cir.1988))).” Black v. Wrigley, 997 F.3d, defendant’s sentence, based on its view that “the types of errors
at 711. that warrant reversal are ones that would shock the conscience
Plain Error Review in Criminal Cases of the common man, serve as a powerful indictment against
In criminal cases, the plain error doctrine is provided by our system of justice, or seriously call into question the com-
Federal Rule of Criminal Procedure 52(b): “A plain error that petence or integrity of the district judge.” Rosales-Mireles, 138
affects substantial rights may be considered even though it was S. Ct. at 1905.
not brought to the court’s attention.” See also United States v. In its review, the Supreme Court noted that the first three
Olano, 507 U.S. 725 (1993) (holding that forfeited error may Olano conditions had been satisfied and that it was the fourth
be noticed if there was (1) an error, (2) that was plain, (3) condition it was asked to clarify and apply. The Court rejected
that affected the defendant’s substantial rights, and, when the the Fifth Circuit’s application of the fourth condition, holding
other three conditions have been met, (4) the error seriously that “[i]n articulating such a high standard, the Fifth Circuit
affected the fairness, integrity, or public reputation of judicial substantially changed Olano’s fourth prong.” Id. at 1907. In
proceedings). addressing the issue of the burden of persuasion concerning
In United States v. Marcus, 130 S. Ct. 2159, 2164 (2010), the fourth condition, the Court stated in a footnote that, “in the
quoting Puckett v. United States, 129 S. Ct. 1423, 1429 (2009), ordinary case, proof of a plain Guidelines error that affects the
the United States Supreme Court explained the application of defendant’s substantial rights is sufficient to meet the burden
plain error review in criminal cases in this fashion: [of satisfying the fourth condition].” Id. at note 4. In reversing
“an appellate court may, in its discretion, correct the Fifth Circuit’s decision and remanding the case for renewed
an error not raised at trial only where the appel- sentencing procedures and stressing that “a sentence that lacks
lant demonstrates that (1) there is an ‘error’; (2) reliability because of unjust procedures may well undermine
the error is ‘clear or obvious, rather than subject public perception of the proceedings” (id. at 1907), the Court
to reasonable dispute’; (3) the error ‘affected the held that:
appellant’s substantial rights, which in the ordinary “the Fifth Circuit abused its discretion in applying
case means’ it ‘affected the outcome of the district an unduly burdensome articulation of Olano’s
court proceedings’; and (4) ‘the error seriously fourth prong and declining to remand Rosales-
affect[s] the fairness, integrity or public reputation Mireles’ case for resentencing. In the ordinary case,
of judicial proceedings.’” as here, the failure to correct a plain Guidelines
error that affects a defendant’s substantial rights
Application of Olano in Cases Involving Error in Increasing
Sentencing Guideline Range will seriously affect the fairness, integrity, and
In Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018), public reputation of judicial proceedings.” Id. at
the United States Supreme Court reviewed a case where, in 1911.
relying on a presentence investigation report, the district court The Supreme Court’s decision in Rosales-Mireles is consis-
had erroneously double-counted a misdemeanor conviction of tent with its earlier holding in Molina-Martinez v. United States,
the defendant. That error resulted in a sentencing guidelines 136 S. Ct. 1338 (2016). There, the defendant’s sentencing
range higher than it otherwise would have been. Noting that guidelines range in his presentence report was reported as 77 to
the sentence imposed on the defendant was merely one month 96 months, when, because of an error in calculation, it should
higher than the minimum sentence for the erroneous guide- have been 70 to 87 months. Referring to the error in calculating
lines range and at the mid-to-lower end of the correct range,
the sentencing range and in remanding for resentencing, the decision that such sentencing was error), the plain error at the
Court held that time of review satisfies the second part of Olano’s four-part test.
“in most cases the Guidelines range will affect the For examples of Seventh Circuit decisions where the defen-
sentence. When that is so, a defendant sentenced dant did not object at trial but failed to satisfy the requirements
under an incorrect Guidelines range should be of plain error review, see United States v. Thomas, 897 F.3d
able to rely on that fact to show a reasonable prob- 807, (7th Cir. 2018) (though conceding error in sentencing
ability that the district court would have imposed guideline calculations, holding there was no plain error requir-
a different sentence under the correct range. That ing a remand for resentencing, because a remand would result
probability is all that is needed to establish an in the same sentence of life imprisonment and, outside the
effect on substantial rights for purposes of obtain- rule established in the Supreme Court’s decisions in Molina-
ing relief under Rule 52(b) [which addresses the Martinez and Rosales-Mirales, the final guideline range for
plain error rule].” Molina-Martinez, 136 S.Ct. at sentencing calculated by the trial court was correct); United
1349. States v. Seifer, 200 F.3d 328 (7th Cir. 2015) (where, in violation
For a Seventh Circuit decision that distinguishes Rosales- of Fed. R. Crim. P. 24(c), the district court erroneously allowed
Mireles and Molina-Martinez on the basis that the error in the defendant to randomly select an alternate juror from among
calculating the defendant’s sentencing range was not affected the 13 jurors chosen, the convicted defendant, who had not
by a miscalculation, see United States v. Thomas, which is dis- objected to that procedure, could not satisfy his burden to
cussed in the second paragraph under the heading immediately show that he was prejudiced under plain error review); United
following. States v. Breshers, 684 F.3d 699 (7th Cir. 2012) (in the absence
Other Decisions Applying Olano of an objection, finding there was no plain error and upholding
In two cases subsequent to Olano, the United States restitution order that was based on a federal statute (18 U.S.C.
Supreme Court addressed whether the plain error rule applies § 3663A) that was ambiguous about whether physical injury
to the ruling at trial or to the error that is “plain” at the time of was necessary, where there was no physical injury, despite
review. In Johnson v. U.S., 520 U.S. 461 (1997), the Supreme two other circuit courts of appeal having held that physical
Court held that, where a trial court’s decision was clearly injury was necessary under the statute); United States v. Kirklin,
correct under circuit law when it was made (here, under circuit 727 F.3d 711 (7th Cir. 2013) (defendant unable to establish
precedent, that the materiality of a false statement was for the plain error concerning trial court’s imposition of mandatory
trial court to determine), but at the time of review the decision minimum penalty for brandishing a firearm without a jury’s
had become plainly erroneous due to an intervening authori- determination on that issue, because jury would likely have
tative legal decision (a Supreme Court decision that materiality found that element due to totality of evidence and defendant
was for the jury’s determination), the law at the time of review could not satisfy the fourth Olano requirement, that “the error
is to be applied, because “it is enough that an error be ‘plain’ seriously affected the fairness, integrity or public reputation of
at the time of appellate consideration.” Johnson, 520 U.S. at judicial proceedings.”)
468. Later, in Henderson v. U.S., 568 U.S. 266, 133 S. Ct. 1121 Distinction Between Waiver and Forfeiture
(2013), the Supreme Court likewise held that where the law is In United States v. Doyle, 693 F.3d 769 (7th Cir. 2012),
unsettled at the time of the trial court error (here, whether an the Seventh Circuit Court of Appeals provided this succinct
increased sentence could be imposed to enable an offender statement concerning the difference between waiver, which
to complete a treatment program or otherwise to promote precludes plain error review, and forfeiture, which permits such
rehabilitation) but plain at the time of review (a Supreme Court review:
“The difference between waiver and forfeiture is tion, however, is not whether the legally admitted evidence
that waiver precludes review, whereas forfeiture was sufficient to support the death sentence, which we assume
permits us to correct an error under a plain error it was, but whether the State has proved beyond a reasonable
standard. United States v. Olano, 507 U.S. 725, doubt that the error complained of did not contribute to the
732–34, 113 S. Ct. 1770, 123 L.Ed.2d 508 (1993). verdict obtained.” (Internal quotation marks omitted.)); Sullivan
Forfeiture occurs by accident, neglect, or inadver- v. Louisiana, 508 U.S. 275, 279 (1993) (“The inquiry, in other
tent failure to timely assert a right. Id.; United States words, is not whether, in a trial that occurred without the error,
v. Cooper, 243 F.3d 411, 415–16 (7th Cir. 2001). a guilty verdict would surely have been rendered, but whether
Waiver occurs when a defendant or his attorney the guilty verdict actually rendered in this trial was surely
manifests an intention, or expressly declines, to unattributable to the error.”).
assert a right. Cooper, 243 F.3d at 415–16.” In United States v. Barber, 937 F. 3d 965, (7th Cir. 2019),
Distinction Between Plain Error and Harmless Error a prosecution involving stealing firearms from a federally
The principles related to plain error review are discussed licensed firearm dealer, the Seventh Circuit found that the
above. Harmless error analysis is different. Where a defendant district court had erred in admitting authenticating documents
in a criminal case has laid the foundation for preserving error prepared by ATF agents—to establish the element that the fire-
at trial (i.e., there was no forfeiture) and a reviewing court arm dealer was currently licensed—in violation of the holdings
determines that error indeed had occurred, the reviewing court in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) and
must then determine whether the error was harmless beyond a Bullcoming v. New Mexico, 564 U.S. 647 (2011). But, after
reasonable doubt. citing and applying Jones v. Basinger, 635 F.3d 1030, 1052 (7th
A long line of United States Supreme Court decisions has Cir. 2011), the court held that the error was harmless, hold-
established the test to be applied in harmless error analysis. ing that, in “a Confrontation Clause case, the harmless-error
Some of those decisions, which reflect the Court’s focus on the inquiry rests on a variety of factors, including ‘the importance
effect of the error and with quotes that supply the applicable of the witness’ testimony in the prosecution’s case, whether
standard, include: Kotteakos v. United States, 328 U.S. 750, the testimony was cumulative, the presence or absence of
764-65 (1946) (“And the question is, not were they right in evidence corroborating or contradicting the testimony of the
their judgment, regardless of the error or its effect upon the witness on material points, the extent of cross-examination
verdict. It is rather what effect the error had or reasonably may otherwise permitted, and, of course, the overall strength of the
be taken to have had on the jury’s decision.***The inquiry prosecutor’s case.’” Barber, 937 F.3d at 969. Noting that the
cannot be merely whether there was enough to support the owner of the firearm dealership produced a current federal
result, apart from the phase affected by the error. It is rather, license and testified that the license was current, the court held
even so, whether the error itself had substantial influence.”); that any error in admitting the ATF records was harmless.
Satterwhite v. Texas, 486 U.S. 249, 258-59 (1988) (“The ques-
tial rights” in the limited circumstances described in this Hollahan, 2020 IL 125091, ¶13 (reiterating the similarity in the
commentary. holding in Olano and the principles in Illinois “when it comes
Relevant Supreme Court Rules to plain error review”).
Two supreme court rules have relevance to this codified Triggering Plain Error Review
evidence rule. Illinois Supreme Court Rule 451(c), which The supreme court has referred to the plain error doctrine
addresses instructions given by the trial court in criminal cases as “a limited and narrow exception to the general rule of pro-
and is not, strictly speaking, an evidence-related rule, provides cedural default.” People v. Walker, 232 Ill. 2d 113, 124 (2009);
that “substantial defects [in instructions] are not waived by see also People v. Downs, 2015 IL 117934, ¶ 15. In People
failure to make timely objections thereto if the interests of v. Piatkowski, 225 Ill. 2d 551, 565 (2007), the supreme court
justice require.” For an appellate court decision applying this provided the standard for applying plain error review where an
rule in reversing convictions for attempted first degree murder issue has been forfeited:
and aggravated battery, see People v. Cacini, 2015 IL App (1st) “[T]he plain-error doctrine allows a reviewing
130135, ¶¶ 32-59 (holding that where the defense of self-de- court to consider unpreserved error when (1) a
fense was raised, the trial court erred in not instructing the jury clear or obvious error occurred and the evidence is
that the State bore the burden of proving beyond a reasonable so closely balanced that the error alone threatens
doubt that defendant’s use of force was not justified, and further to tip the scales of justice against the defendant,
holding that the error satisfied the second prong of the plain regardless of the seriousness of the error, or (2)
error doctrine (see discussion below) because the error denied a clear or obvious error occurred and that error
defendant a fair trial). is so serious that it affected the fairness of the
More relevant to the codified evidence rule and plain-error defendant’s trial and challenged the integrity of the
review is Illinois Supreme Court Rule 615(a), which is an evi- judicial process, regardless of the closeness of the
dence-related rule that applies in criminal cases. It reads: evidence.”
“Any error, defect, irregularity, or variance which Later, in People v. McDonald, 2016 IL 118882, in addition
does not affect substantial rights shall be disre- to the two separate prongs of plain error provided in the quote
garded. Plain errors or defects affecting substantial above, the supreme court added these general principles:
rights may be noticed although they were not “The first step in a plain error analysis is to deter-
brought to the attention of the trial court.” mine whether error occurred. People v. Cosby, 231
Similarity of Illinois and Federal Plain Error Standards Ill. 2d 262, 273 (2008). Absent reversible error,
As pointed out by the supreme court in People v. Herron, there can be no plain error. People v. Williams,
215 Ill. 2d 167 (2005), Rule 615(a) is substantially identical to 193 Ill. 2d 306, 349 (2000). The defendant has
Federal Rule of Criminal Procedure 52, and has been applied the burden of persuasion on both the threshold
in similar fashion. As further noted in Herron, the supreme question of plain error and the question whether
court holdings on plain error reflect identical application of the the defendant is entitled to relief as a result of the
same standards provided by the United States Supreme Court’s error. In re M.W., 232 Ill. 2d 408, 431 (2009).”
decisions in United States v. Cotton, 535 U.S. 625 (2002) McDonald, at ¶48.
and United States v. Olano, 507 U.S. 725 (1993) (holding Test for Second Prong of Plain Error Review
that forfeited error may be noticed if there was (1) an error, The second prong of the plain-error test has been equated
(2) that was plain, (3) that affected the defendant’s substantial to “structural error,” which is “systemic error which serves to
rights, and (4) that seriously affected the fairness, integrity, or erode the integrity of the judicial process and undermine the
public reputation of judicial proceedings). See also People v. fairness of the defendant’s trial.” People v. Glasper, 234 Ill.
2d 173, 197–98 (2009). But the Illinois Supreme Court has should not have been convicted and sentenced for uncharged
made it clear that second-prong plain error is not restricted to offenses he did not commit, holding “although our decisions
the six types of structural error that have been recognized by in Glasper and Thompson equated second-prong plain error
the U.S. Supreme Court: “a complete denial of counsel; trial with structural error, we did not restrict plain error to the types
before a biased judge; racial discrimination in the selection of of structural error that have been recognized by the Supreme
a grand jury; denial of self-representation at trial; denial of a Court;” In re Samantha V., 234 Ill. 2d 359, 378-79 (2009), where
public trial; and a defective reasonable doubt instruction.” See the failure to apply the one-act, one-crime rule constituted sec-
Washington v. Recuenco, 548 U.S. 212, 218 n.2 (2006); also ond-prong plain error; People v. Walker, 232 Ill. 2d 113, 131
see People v. Thompson, 238 Ill. 2d 598, 609 (2010). In People (2009), where the failure of the judge to exercise discretion in
v. Averett, 237 Ill.2d 1, 13 (2010), for example, the supreme denying a request for a continuance constituted second-prong
court cited Glasper in holding, “We may determine an error plain error, given the egregious facts in that case; and People
is structural as a matter of state law regardless of whether it is v. Hicks, 181 Ill. 2d 541, 545 (1998), where the imposition of
deemed structural under federal law.” an unauthorized sentence affected substantial rights and thus
Interestingly, the United States Supreme Court decision in triggered second-prong plain error.
Weaver v. Massachusetts, 137 S.Ct. 1899 (2017), demonstrates In People v. Lewis, 234 Ill.2d 32, 48-49 (2009), the supreme
that even “structural error” may not, in certain circumstances, court held that the imposition of a fine that contravenes a stat-
result in a finding of error. In that case, because the courtroom ute triggers second-prong plain error (but note that pursuant to
could not accommodate all the potential jurors for a murder Ill. S. Ct. R. 472(e), added effective May 17, 2019, in appeals
trial, members of the public who were not potential jurors were filed or pending since March 1, 2019, such an error raised for
excluded from the courtroom during jury selection. Among the the first time on appeal is not to be addressed in the reviewing
excluded persons were the defendant’s mother and her minister. court, but rather remanded to the circuit court for the filing of
The defendant’s attorney made no objection to the exclusion, an appropriate motion). And in People v. Fort, 2017 IL 118966,
the defendant was convicted, and the issue of the denial of ¶19, the supreme court held that the imposition of a statutorily
a public trial was not raised on direct appeal. The defendant prohibited adult sentence on a juvenile triggers second-prong
later collaterally attacked the judgment based on ineffective plain error.
assistance of counsel. Noting that its decision would likely
Decisions on General Principles Related to Plain Error Review
have been different if the issue had been preserved and raised
For a sampling of cases that discuss principles related to
on direct appeal and, addressing the issue in the context of
whether plain error review should be granted, see People v.
the allegation of ineffective assistance of counsel, the Supreme
Lewis, 234 Ill. 2d 32 (2009) (holding a reviewing court must
Court applied the second prong test of Strickland in holding
initially determine whether an error actually occurred; but
that the petitioner had failed to establish prejudice and it thus
see People v. White, 2011 IL 109689, ¶¶ 139, 148, where, in
affirmed the judgment of conviction. Weaver represents a clear
engaging in “a qualitative—as opposed to strictly quantitative—
indication that even structural error may not lead to a finding
commonsense assessment of the evidence” in determining that
of plain error in federal courts. It thus presents another demon-
the evidence was not closely balanced, holding that “[w]hen
stration of the need for counsel to make a contemporaneous
it is clear that the alleged error would not have affected the
objection to an erroneous court ruling.
outcome of the case, a court of review need not engage in
Examples of supreme court decisions that did not involve
the meaningless endeavor of determining whether error
structural error but nonetheless applied second-prong plain
occurred”); People v. Naylor, 229 Ill. 2d 584 (2008) (holding
error include People v. Clark, 2016 IL 118845, ¶¶ 25, 46,
burden of persuasion as to the two prongs is on party seeking
where, in agreeing with the appellate court that the defendant
plain-error review and, if burden cannot be carried, procedural closely balanced, the trial court’s failure to ask the proper Zehr
default must be honored). questions of prospective jurors, as provided by Rule 431(b),
See also People v. Hood, 2016 IL 118581 (finding that there required reversal of a conviction for resisting a peace officer
was no error, and thus no plain error, while rejecting defen- and a remand for a new trial. In Sebby, the trial court had
dant’s contentions that his right to confront the victim-witness advised prospective jurors of the Zehr principles but asked
had been violated and that there had been plain error in whether they “had any problems with” or “believed in” the
admitting at trial the deposition of the incapacitated victim four Zehr principles, rather than whether they “understood and
under Ill. S. Ct. R. 414; and further holding that, in the face accepted” those principles. The court held that “prejudice rests
of evidence that defendant waived his right to be present at not upon the seriousness of the error but upon the closeness of
the victim’s deposition (where he was represented by counsel the evidence. What makes an error prejudicial is the fact that
who cross-examined the victim), his due process rights were it occurred in a close case where its impact on the result was
not violated and there was no plain error because of the failure potentially dispositive.” Sebby, at ¶ 68. The court also rejected
to obtain the written waiver required by S. Ct. R. 414(e)). the contention that the final instruction given to the jury under
IPI Criminal 4th No. 2.03, which recites the Zehr admonitions,
Decisions on the Closely Balanced First Prong Test for Plain
Error Review did not cure the error that occurred in not properly asking
In People v. Adams, 2012 IL 111168, the supreme court prospective jurors about the Zehr principles.
cited White in holding that, in determining whether the closely In People v. Lucas, 2019 IL App (1st) 160501, the appellate
balanced prong has been met, the court makes a “common- court held that second-prong plain error occurred when, during
sense assessment” of the evidence within the context of the a bench trial, because it could not be done in the courtroom,
circumstances of the individual case. In Adams, although the trial court and the State and defense counsel reviewed in
comments that were not objected to during the State’s final chambers and outside the defendant’s presence—without any
arguments were improper and constituted error, they did not commentary or argument—a videotape of the defendant’s
merit reversal of the conviction because neither prong of the traffic stop (which was relevant to the charged offenses). With
plain-error test was satisfied. one judge dissenting, the appellate court held that, though the
In People v. Belknap, 2014 IL 117094 the supreme court defendant was advised that the video would be reviewed by
had another opportunity to consider the principles provided the trial court and lawyers outside her presence and she did
by White and Adams. In Belknap, the supreme court agreed not object, she did not knowingly waive her right to be present
with the appellate court’s holding that the trial court committed for the viewing because she was not informed of that right. The
error in failing to comply with Supreme Court Rule 431(b) by court held that reversal and remand were necessary because
not asking prospective jurors whether they understood the four the defendant was deprived of her right to be present during a
principles set forth in that rule (commonly referred to as the critical stage of the proceedings.
Zehr admonitions); but it also held, contrary to the appellate In both People v. Sargent, 239 Ill. 2d 166 (2010), and People
court’s holding, that the evidence in the case was not closely v. Marcos, 2013 IL App (1st) 111040, the courts addressed the
balanced, and thus plain error review was unwarranted. plain error doctrine in situations where: (1) hearsay statements
In its 4-to-3 decision in People v. Sebby, 2017 IL 119445, made by children who were victims of sexual offenses were
the supreme court held that a Rule 431(b) error (related to admitted under the exception provided by section 115-10 of
jury-selection admonitions based on the Zehr principles) does the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10;
not trigger second-prong plain error. The court held, however, see Appendix U); (2) the trial court had not given the jury an
that application of the first prong of the plain error doctrine, instruction required by section 115-10(c) of the Code (see
in a case such as this where the evidence was deemed to be IPI Criminal 4th No. 11.66, which implements the statutory
requirement); and (3) the defendant did not submit the required trine (i) minimizes the importance of trial counsel’s
instruction or object to the trial court’s failure to give it to the vigilance to identify and preserve objections in
jury. Both the supreme court in Sargent and the appellate court order to facilitate appellate review, (ii) undermines
in Marcos held that, although the error in the trial court’s not the ability of trial counsel to address and, if nec-
giving the jury instruction was definitely clear and obvious, an essary, correct claimed errors, and (iii) results in
analysis of the record established that the evidence was not an ever-growing body of largely hypothetical legal
closely balanced and thus the error did not rise to the level of analysis, i.e., if counsel had timely preserved the
plain error. error now raised on appeal, then this is how we
Cumulative Error wold resolve the issue. The more often we honor
In cases where neither prong of the plain error analysis the rule of procedural default and the more fre-
applies, defendants frequently contend that the trial’s cumu- quently we confine plain-error to its intentionally
lative errors requires reversal. In People v. Speight, 153 Ill. 2d ‘narrow and limited’ scope, the better and more
365, 376 (1992), though it rejected the defendant’s contention cogent our analysis of concrete appellate issues
that cumulative errors required reversal, the supreme court will be.” Ramirez, at ¶27 (emphasis in original).
reasoned that, “while individual trial errors may not require a Distinction Between Waiver and Forfeiture
reversal, those same errors considered together may have the In People v. Phipps, 238 Ill. 2d 54, 62 (2010), the supreme
cumulative effect of denying defendant a fair trial.” court spelled out the difference between waiver and forfeiture
Though the invocation of such error is usually unsuccessful, in this manner:
a primary example of cumulative error resulting in reversal is “Waiver is distinct from forfeiture, however. While
People v. Blue, 189 Ill. 2d 99 (2000) (applying due process forfeiture applies to issues that could have been
considerations and employing the same test used when a raised but were not, waiver is the voluntary relin-
reviewing court applies the second prong of the plain error quishment of a known right.”
test, and reasoning that the State’s arguments “encouraged the Later, in People v. Hughes, 2015 IL 117242, the supreme
jury to return a verdict grounded in emotion, and not a rational court explained the difference in these terms:
deliberation of the facts,” holding that cumulatively, the errors “We should acknowledge that these two terms
created a pervasive pattern of unfair prejudice to defendant’s [waiver and forfeiture] have been used inter-
case). changeably at times, particularly in the criminal
context, despite representing distinct doctrines. ‘As
Ramirez: Admonition Concerning Need for Care by Trial Counsel
in Preserving Error this court has noted, there is a difference between
In People v. Ramirez, 2015 IL App (1st) 130022, an appeal waiver and forfeiture. While waiver is the volun-
alleging trial court error that resulted in a longer sentence, tary relinquishment of a known right, forfeiture
where the appeal was based on the assertion of plain error is the failure to timely comply with procedural
because of the defendant’s failure to raise the issue in the requirements. [Citations.] These characterizations
trial court, the appellate court denied the defendant’s claim, apply equally to criminal and civil matters.’”
responding in words that should serve as notice to trial counsel Citing Buenz v. Frontline Transportation Co., 227
about the need to exercise care in preserving issues for review: Ill. 2d 302, 320 n.2 (2008). Hughes, at ¶37.
“We do no favors to the criminal bar to routinely In People v. Sophanavong, 2020 IL 124337, the court stated
bypass forfeiture to consider forfeited issues on this:
their merits. Habitually excusing the failure to pre- “Over the years, this court has noted that the
serve errors for review under the plain-error doc- terms forfeiture and waiver have, at times, been
used interchangeably, and often incorrectly, in a defendant’s conviction and sentence will stand
criminal cases. People v. Hughes, 2015 IL 117242, unless the defendant shows the error was preju-
¶ 37; People v. Blair, 215 Ill. 2d 427, 443 (2005). dicial.” People v. Crespo, 203 Ill. 2d 335, 347-48
Forfeiture is defined ‘as the failure to make the (2003).
timely assertion of [a] right.’ People v. Lesley, The simple test for harmless error analysis is not whether
2018 IL 122100, ¶ 37; see also Buenz v. Frontline the prosecution produced sufficient evidence to support a
Transportation Co., 227 Ill. 2d 302, 320 n.2 (2008) conviction, but whether the error may have swayed the jury’s
(stating ‘forfeiture is the failure to timely comply judgment. The overall strength of the prosecution’s evidence
with procedural requirements’). Waiver, on the constitutes an important factor in making this determination.
other hand, ‘is an intentional relinquishment In People v. Lerma, 2016 IL 118496, the supreme court
or abandonment of a known right or privilege.’ provided the following standard for determining harmless error
Lesley, 2018 IL 122100, ¶ 36.” Sophanavong, at where evidence was excluded:
¶20. “This court has recognized three approaches to
The distinction between waiver and forfeiture (which, as determine whether an error such as this is harm-
the above quotes indicate, in many decisions frequently and less beyond a reasonable doubt: (1) whether the
incorrectly is labeled “waiver”) is important because proce- error contributed to the defendant’s conviction;
dural forfeiture may nevertheless allow plain error review, (2) whether the other evidence in the case over-
whereas the voluntary surrender of a known right will not. See whelmingly supported the defendant’s conviction;
e.g., People v. Smith, 2019 IL App (1st) 161246, ¶ 50 (citing and (3) whether the excluded evidence would
supreme court and other appellate court decisions in holding have been duplicative or cumulative.” Lerma, at
“[w]hether we couch it in terms of ‘waiver’ or ‘invited error,’ ¶33.
plain-error review of that action is not available”) Also, forfei- Plain Error Review in Civil Cases
ture “is a limitation on the parties and not on [the reviewing] Although the plain error doctrine generally is applied in
court, which has a responsibility to achieve a just result and criminal cases, it applies in civil cases as well. See Gillespie
maintain a sound and uniform body of precedent.” Pederson v. Chrysler Motors Corp., 135 Ill. 2d 363 (1990), where the
v. Village of Hoffman Estates, 2014 IL App (1st) 123402, ¶ 44 supreme court noted that plain error review in a civil case
citing O’Casek v. Children’s Home & Aid Society of Illinois, 229 was first applied by that court in Belfield v. Coop, 8 Ill. 2d 293
Ill. 2d 421, 438 (2008). (1956), where the court held:
Distinction Between Harmless Error and Plain Error “If prejudicial arguments are made without objec-
In a criminal case addressing whether reversible error had tion of counsel or interference of the trial court to
been committed because of an Apprendi violation, the supreme the extent that the parties litigant cannot receive
court noted that, in addition to the threshold determination a fair trial and the judicial process stand without
concerning the applicability of plain error or harmless error deterioration, then upon review this court may
analysis depending on whether the defendant did or did not consider such assignments of error, even though
make a timely trial objection based on the alleged error, no objection was made and no ruling made or
“[a]n ‘important difference’ between the two anal- preserved thereon.”
yses lies in the burden of proof: in harmless-error In Gillespie, the supreme court held that “we will strictly
analysis, the State must prove that the jury verdict apply the waiver doctrine unless the prejudicial error involves
would have been the same absent the error to flagrant misconduct or behavior so inflammatory that the jury
avoid reversal, whereas under plain-error analysis, verdict is a product of biased passion, rather than an impar-
tial consideration of the evidence.” In reviewing prior cases, “Abuse of discretion is, of course, a highly def-
the Gillespie court concluded that “[i]n each of [those civil erential standard. We give special deference to
cases] where a new trial was awarded, the prejudicial error evidentiary rulings because of the trial judge’s first-
was so egregious, that it deprived the complaining party of a hand exposure to the witnesses and the evidence
fair trial and substantially impaired the integrity of the judicial as a whole, and because of the judge’s familiarity
process itself.” The court noted: “The cases where we applied with the case and ability to gauge the impact of
the Belfield standard and awarded a new trial involved blatant the evidence in the context of the entire proceed-
mischaracterizations of fact, character assassination, or base ing. A trial court abuses its discretion when no
appeals to emotion and prejudice.” reasonable person could take the view adopted by
Standard of Review for Evidentiary Issues the trial court.” Groce, 891 F.3d at 268 (internal
Although IRE 103(e) is directly relevant to appellate pro- citations and quotation marks omitted).
ceedings, trial judges and attorneys must know the standard Note that many Illinois Supreme Court decisions require
of review for evidentiary issues, for it illustrates the deference a “clear showing” that the trial court abused its discretion in
accorded trial courts in their rulings on the admission of evi- order to overturn a ruling on the admissibility of evidence.
dence. The standard is succinctly stated by the supreme court See e.g., People v. Cookson. 215 Ill. 2d 194 (2005). Note also
in People v. Becker, 239 Ill. 2d 215 (2010): that, although Becker and many other supreme and appellate
“The admission of evidence is within the sound court decisions present the generally accepted standard quoted
discretion of a trial court, and a reviewing court above for the admission of evidence, an additional basis for a
will not reverse the trial court absent a showing of reviewing court’s finding error in the admission of evidence
an abuse of that discretion. [Citations.] An abuse occurs where the trial court’s ruling rests on an error of law.
of discretion occurs where the trial court’s deci- Cable America, Inc. v. Pace Electronics, Inc., 396 Ill. App. 3d
sion is arbitrary, fanciful or unreasonable [citation] 15, 24 (2009) (“A circuit court abuses its discretion when it
or where no reasonable person would agree with makes an error of law. See Koon v. United States, 518 U.S.
the position adopted by the trial court [citations]. 81, 100, 116 S. Ct. 2035, 2047, 135 L.Ed.2d 392, 414 (1996)
Decisions of whether to admit expert testimony (where the Supreme Court explained that ‘[l]ittle turns *** on
are reviewed using this same abuse of discretion whether we label review of this particular question abuse of
standard. [Citations.]” discretion or de novo, for an abuse-of-discretion standard does
In United States v. Groce, 891 F.3d 260, (7th Cir. 2018), not mean a mistake of law is beyond appellate correction’”).
the Seventh Circuit offered this explanation for the abuse of Where admissibility turns on a question of law, the standard
discretion standard for evidentiary rulings: of review is de novo. See, e.g., People v. Hall, 195 Ill. 2d 1, 21
(2000); People v. Williams, 188 Ill. 2d 365, 369 (1999).
COMMENTARY
Cobige v. City of Chicago: A Primer for Thinking About and a jury awarded $5 million in compensatory damages and
Applying the Rules of Evidence
$4,000 in punitive damages to the plaintiff, who sued as the
Although it does not refer to Rule 104(a), the Seventh
son and special representative of the estate of his mother. The
Circuit decision in Cobige v. City of Chicago, et al., 651 F.3d
mother, who had been arrested on a drug charge and was held
780 (7th Cir. 2011), is instructive regarding the admissibility
in a police lockup before court presentation, was allowed by
of evidence under both federal and Illinois rules. In that case,
police to suffer untreated pain, ultimately leading to her death.
The Seventh Circuit affirmed the jury’s finding on liability, but more than 10 years old) the Seventh Circuit pointed out that the
vacated the damages award, ruling that the district court’s defendants did not seek admission of the mother’s conviction
evidentiary rulings had prejudiced the defendants’ efforts to “for the purpose of attacking the character or truthfulness of
counter the plaintiff’s testimony related to damages for loss of a witness,” for the simple reason that the mother was not a
companionship and for loss of the enjoyment of life. witness. The rule therefore could not be used as a basis for
The plaintiff, who was 27 years old when his mother died, exclusion of the evidence.
testified that “she had been a friend as well as a parent, a bul- As for FRE 404(b), the Seventh Circuit pointed out that the
wark of support and a role model throughout his life.” He also defendants “did not offer the evidence about imprisonment,
testified that “she provided wise advice and support” to him arrests, and addiction to show that [the mother] acted ‘in con-
and that “she taught me mostly everything I know. Everything formity therewith’ on a different occasion.” In other words, the
she knew she tried to instill in me.” The defendants (the city defendants did not offer the evidence of the commission of a
of Chicago and four police officers) sought to counter that crime to establish the mother’s propensity to commit another
evidence by introducing proof that the mother had been a crime, but rather to show “how much [the mother’s] estate
drug addict who had been in trouble with the law for much and son suffered by her death.” In short, because the mother’s
of her adult life and had spent multi-year stretches in prison. character and life prospects were placed in issue by her son’s
The district court admitted the evidence of one of the mother’s testimony, the defendants were entitled to introduce evidence
convictions, but excluded evidence of other convictions and to counter that evidence.
about her drug addiction and arrest record. As a result, the jury As for FRE 403, the Seventh Circuit stated: “When the law
did not learn that the plaintiff’s mother had been sentenced makes damages depend on matters such as the emotional tie
to four years’ imprisonment for two drug offenses in 1998, between mother and son, the defendant is entitled to show
and that shortly after her release she was arrested again and that the decedent’s character flaws undermined the quality of
convicted in 2001 for another drug offense, for which she was advice and support that she could have supplied.” This, the
sentenced to three years’ imprisonment. Her death occurred in court held, did not constitute “prejudice” at all. And it certainly
2006, while she was in custody for a drug offense. was not “unfair prejudice.”
The Seventh Circuit rejected the district court’s refusal to The Seventh Circuit concluded that the exclusion of
allow evidence of the mother’s convictions, drug addiction, evidence “that could have significantly reduced the award of
and arrests based on the district court’s reliance on FRE 609(b), damages cannot be called harmless.” It therefore vacated the
404(b), and 403. The Seventh Circuit held that the proffered damages awarded and remanded the case to the district court
evidence was necessary to undermine the plaintiff’s testimony, for a new trial solely on the issue of damages.
and that the three rules relied upon by the district court to deny According to newspaper reports, in December 2011, the
admissibility were inapplicable. Chicago City Council approved a settlement in this case in the
As for the district court’s invocation of FRE 609(b) (related to amount of $2.02 million.
the inadmissibility, for impeachment purposes, of a conviction
court is not bound by the rules of evidence in doing so. Thus, the admissibility of evidence “is not constrained by the usual
where the preliminary question to be decided by the court is rules of evidence.” Taylor, at ¶ 40. Thus, the court held, the
based on a factual determination, the rules of evidence (priv- appellate court erred in not considering a police report that,
ilege excepted) do not apply during the hearing to determine though not admitted in evidence at trial, was relevant on the
admissibility. This principle is reinforced by IRE 1101(b)(1), questions related to the copying process of the videotape (from
which refers to “Rule 104” and is substantially identical to IRE DVR to VHS tape) and to the sufficiency of its chain of custody.
104(a). Indeed, “the trial court may consider hearsay evidence, Id. at ¶¶40-41.
including the unavailable witness’s hearsay statements.” People Regarding the appellate court’s determination that the
v. Peterson, 2017 IL 120331, ¶ 44, citing the rule, People v. videotape was inadmissible because of chain-of-custody
Stechly, 225 Ill. 2d 246, 278 (2007), and Davis v. Washington, problems, the supreme court pointed out that, as “this court
547 U.S. 813, 833 (2006). has repeatedly stated … gaps in the chain of custody go to the
The proponent of evidence bears the burden of proving the weight of the evidence, not its admissibility.” Id. at ¶41.
necessary elements for admissibility. People v. Torres, 2012 IL Next, the supreme court disagreed with the appellate court’s
111302, ¶53; People v. Cookson, 215 Ill. 2d 194, 204 (2005). holding that the tape was inadmissible because the original
recording had not been preserved. The court pointed out that,
People v. Taylor: Application of IRE 104(a) and Blueprint for
Admissibility of Video Recording under IRE 1001(2), a videotape copy of another recording
Given modern advances in technology, the supreme court’s qualifies as an original. Id. at ¶¶42-43.
decision in People v. Taylor, 2011 IL 110067, is worthy of note. Finally, the supreme court held that the appellate court’s
In that case, the court reversed the appellate court’s holding conclusion that the tape should not have been admitted because
that a surveillance videotape recording had been improperly “the State failed to establish that no alterations, deletions or
admitted at trial (under the “silent witness” theory, where a changes had been made when the original DVR recording was
photo or video shown to be accurate is admissible as speaking copied to the videotape” was an “overly restrictive” require-
for itself), on the basis that a proper foundation had not been ment. Id. at ¶ 44 (emphasis in original). The court reasoned
laid. The appellate court had reached this determination based that “some editing may be necessary to make the evidence
on its conclusion that, for many reasons, the State had failed to admissible in the first place” and that “most editing will not
establish the reliability of the process that produced the tape. In render evidence inadmissible but rather will go to the weight of
its analysis, the supreme court first held that, as in other admis- that evidence.” Id. The court concluded: “The more important
sion-of-evidence determinations, the proper standard of review criteria is that the edits cannot affect the reliability or trustwor-
is abuse of discretion, not de novo. It then approved of the thiness of the recording. In other words, the edits cannot show
six factors that the appellate court had applied in determining that the recording was tampered with or fabricated.” Id.
the reliability of the videotape, but emphasized that “this list Application of Taylor
of factors is nonexclusive,” because one of them “may not be In People v. Stoppelwerth, 2014 IL App (4th) 131119, a case
relevant or additional factors may be needed to be considered.” involving a petition for adjudication of wardship, an off-duty
Taylor, at ¶ 35. In short, the individual circumstances involved sheriff’s deputy viewed on his iPad a live-feed webcam that
in each case need to be considered by the trial court to deter- showed a man engaged in sexual conduct and sexually abusing
mine the accuracy and reliability of the process that produces the respondent’s son in the defendant’s presence. Though there
a recording. Id. was no tape-recording of what the deputy saw, 12 archived still
The supreme court then found fault with much of the images were retrieved and admitted into evidence. On appeal
appellate court’s analysis, noting among other things, the from the trial court’s finding of abuse and neglect and its award
provisions of IRE 104(a) that a preliminary question such as of custody and guardianship of her son to DCFS, the respon-
dent argued that the silent witness theory should have resulted and that he discovered his window had been pushed off the its
in the inadmissibility both of the deputy’s testimony about bottom tracks.
what he viewed on the webcam and of the still images from The author of the lead opinion contended that defendant
the webcam archive. Citing and applying Taylor, the appellate had not challenged the foundation of the iPhone clips on
court rejected the respondent’s arguments. The court first held appeal and that if he had done so, the Taylor decision would
that there was no need to satisfy the nonexclusive list of factors have applied. That justice contended that instead “[t]he only
supplied by Taylor for determining the reliability of the process issue on appeal concerning the iPhone clips is whether their
by which a videotape or photo was produced, because the admission violated the best evidence rule.” Smith, at ¶ 52.
deputy’s testimony and the respondent’s admissions established Applying principles in IREs 1001 through 1004, he concluded
the accuracy and reliability of the process used to create the that “the trial court did not err in admitting two nonconsecu-
images. As for the deputy’s testimony, the appellate court held tive iPhone clips of the surveillance footage where a witness
that the silent witness theory did not apply simply because the testified to their accuracy compared to the original surveillance
deputy’s testimony about what he viewed on the live feed of the footage.” Id. at ¶ 78. The specially concurring justice agreed
webcam was not a video recording. with the lead author’s best evidence analysis and that the trial
For another appellate court decision addressing the admis- court did not err in admitting the iPhone clips, but he reached
sion of a video and relying on Taylor, see In re D.Q. and J.C., the latter conclusion based on the different ground that the
Minors, 2016 IL App (1st) 16680 (in an abuse and neglect case, admission of the clips fully complied with the supreme court’s
holding that there was a proper foundation for the admission holding in Taylor. The dissenting justice contended that there
of a video of a mother repeatedly striking her three-year-old was insufficient compliance with Taylor and also found fault
daughter with a spatula and stick). with the best evidence analysis.
In People v. Smith, 2021 IL App (5th) 190066, the three jus- For other cases that address the “silent witness” theory as
tices expressed interesting and different views on the issues they related to the admissibility of lay opinion testimony, see the
were confronting. Without addressing in detail the facts in this Author’s Commentary on Ill. R. Evid. 701.
case, suffice it to say that the issue in this residential burglary
People v. Parker: Example of Applying IRE 104(a) for Establishing
prosecution was focused on a surveillance videotape recording a Foundation for Admitting Evidence
of the front door of the burglarized apartment. Unfortunately, In People v. Parker, 2019 IL App (3rd) 160455, in response to
the owner of the building in which the burglarized apartment the State’s intention to admit evidence that defendant’s finger-
was located was unable to preserve the approximate 20-minute print was on a wine glass in the victim’s apartment where the
videotape of the burglarized apartment, but his wife recorded alleged armed robbery had occurred, defendant filed a motion
two 20-to-30 second clips of the recording on her iPhone. in limine to prevent the State from introducing evidence that
The first clip showed defendant approaching the door of the would reveal that defendant’s fingerprint was obtained from a
burglarized apartment; the second clip showed defendant prior arrest and thus would lead to inferences concerning his
exiting that apartment while carrying a white bag. The owner prior arrest record. During trial, the State presented evidence by
of the building testified about the entire videotape and the two the fingerprint analysis expert that the fingerprint on the glass
clips captured on his wife’s iPhone, testifying that the videotape matched defendant’s fingerprint, without providing information
showed no one else around or near the burglarized apartment to the jury as to the source of defendant’s known fingerprint.
door. The resident of the apartment testified about his missing On appeal, defendant contended that the trial court had erred
property, that the door to his apartment had been locked, that in admitting that evidence without a proper foundation for its
he had not given permission to anyone to enter his apartment, admission. The appellate court noted that at a pretrial discus-
sion the source of defendant’s fingerprint was disclosed and the
trial court had “ruled that the fingerprints would be admitted But Parker offered another notable ruling. When the State
into evidence, with the caveat that the State should not discuss offered a second fingerprint analysis expert to corroborate the
their source.” Parker, at ¶ 48. In affirming the admission of the testimony of the other expert, the trial court cut off questioning
evidence of the fingerprint comparison based upon the trial on the witness’s expert qualifications, stating that “such ques-
court’s pretrial determination, the appellate court relied on IRE tioning should have been completed prior to trial” and, over
104(a)’s requirement that “preliminary questions concerning defendant’s objections, the court found the witness qualified
*** the admissibility of evidence shall be determined by the as an expert. Id. at ¶ 52. The appellate court held that this
court.” Id. at ¶44. The court also cited IRE 103(d)’s requirement was error, but that the error was cured when defense counsel
to “prevent inadmissible evidence from being suggested to the elicited the witness’s qualifications on cross-examination.
jury by any means” and IRE 104(c)’s similar requirement. Id. The appellate court provided this principle regarding the trial
Parker establishes that under IRE 104(a) a pretrial court court’s erroneous ruling: “There is no rule or statute mandating
determination that there is a proper foundation for the admis- that such a foundation be established prior to trial, or that a
sion of evidence renders unnecessary the presentation of witness be ruled qualified in a pretrial order.” Id. at ¶54.
the foundation for the jury, especially where the foundation
evidence may be prejudicial to the defendant.
Author’s Commentary on Ill. R. Evid. 104(b)
IRE 104(b) is identical to the federal rule before the latter’s This often overlooked (but very useful) rule provides
amendment solely for stylistic purposes effective December 1, the method for establishing the “conditional relevancy” for
2011. The rule, which is easier to understand through the federal introducing evidence in chronological order, which usually
rule’s revised wording, allows admissibility of evidence based is more persuasive than jumping ahead in time to establish
upon a party’s representation that the subsequent production foundational requirements and then returning to an earlier
of evidence will establish the relevancy of the evidence earlier chronological time to present evidence relevant to the issues,
admitted. See Marvel Eng’g Co. v. Commercial Union Ins. Co., a process that can be confusing to jurors who are unaware of
118 Ill. App. 3d 844 (1983) (applying FRE 104(b)). (and unconcerned with) a party’s need to establish foundational
requirements for admitting evidence.
Author’s Commentary on Ill. R. Evid. 104(c)
IRE 104(c) is identical to the federal rule before the latter’s that justice requires to be out of the jury’s hearing. The rule
amendment solely for stylistic purposes effective December is generally applied in criminal cases, but the portion of the
1, 2011. The rule codifies the commonsense requirement that second sentence, which requires that hearings on preliminary
hearings be held out of the presence of the jury when they matters “shall be so conducted [i.e., “out of the hearing of the
concern the admissibility of confessions, matters involving the jury”] when the interests of justice require,” applies equally to
testimony of a criminal defendant who requests a hearing on a civil cases.
preliminary matter out of the jury’s presence, and those matters
Author’s Commentary on Ill. R. Evid. 104(d)
IRE 104(d), which is identical to the federal rule before For a relevant case, where the appellate court held that IRE
the latter’s amendment solely for stylistic purposes effective 104(d) had not been violated, see People v. Maxey, 2018 IL
December 1, 2011, provides subject-matter protection for a App (1st) 130698, ¶¶ 84-93 (in a suppression hearing where
defendant who testifies about a preliminary matter concerning the questioning by the State had relevance to defendant’s
admissibility of evidence in a criminal case. coming from the direction where a residential burglary had just
occurred, though defendant had not testified about where he
had been before his car was stopped by police, it was proper had testified that he was legally driving northbound on the road
for the prosecutor to ask where defendant had been prior to but a police officer testified that he observed defendant driving
entering the road on which he was stopped, where defendant southbound on the same road and making an illegal U-turn).
Author’s Commentary on Ill. R. Evid. 104(e)
IRE 104(e) is identical to the federal rule before the latter’s evidence, the rule is consistent with the principle that admis-
amendment solely for stylistic purposes effective December 1, sibility of evidence is separate from considerations concerning
2011. In allowing evidence related to the weight of admitted the weight or credibility of the evidence.
Rule 105. Limiting Evidence That Is Not Rule 105. Limited Admissibility
Admissible Against Other Parties or for Other When evidence which is admissible as to one party
Purposes or for one purpose but not admissible as to another
If the court admits evidence that is admissible against party or for another purpose is admitted, the court,
a party or for a purpose—but not against another party upon request, shall restrict the evidence to its proper
or for another purpose—the court, on timely request, purpose or scope and instruct the jury accordingly.
must restrict the evidence to its proper scope and
instruct the jury accordingly.
COMMENTARY
in FRE 105, as amended December 1, 2011 (where the word to draw reasonable inferences from the evidence, to reasonably
“must” replaced the word that had been “shall” in the pre- infer that the defendant, as a convicted felon in a case where
amended version), and expressed concern that the jury might possession was disputed, was more likely to have possessed the
have interpreted the standard instruction, concerning its ability firearm than not.
Rule 106. Remainder of or Related Writings or Rule 106. Remainder of or Related Writings or
Recorded Statements Recorded Statements
If a party introduces all or part of a writing or When a writing or recorded statement or part
recorded statement, an adverse party may require the thereof is introduced by a party, an adverse party may
introduction, at that time, of any other part — or any require the introduction at that time of any other part
other writing or recorded statement — that in fairness or any other writing or recorded statement which ought
ought to be considered at the same time. in fairness to be considered contemporaneously with it.
COMMENTARY
ing or recorded statement, or pertains to the same taped exculpatory statement made by the defendant’s wife to
subject matter, does not mean that it satisfies the police, just before her inculpatory statement, should have been
requirements for admissibility under Rule 106.” admitted with the inculpatory statement that was admitted as
Craigen, at ¶46. a prior inconsistent statement. The authoring appellate judge
The appellate court added: “The former interview did not said the statement was properly barred under common-law
shed light on the latter interview or place it in context—it principles that bar the admission of prior consistent statements;
merely contradicted it,” and therefore it was not admissible a specially concurring judge said the issue had been waived
under IRE 106. Id. The court emphasized that “[t]he rule is not and therefore should not have been addressed; and the other
a means to admit evidence that aids a defendant in proving his specially concurring judge said that the exculpatory statement
or her theory of the case,” pointing out that “[w]here, as here, a should have been admitted under the completeness doctrine,
defendant has not shown that the admitted writing or recorded but that the error in not admitting it was harmless.
statement, standing alone, is misleading, Rule 106 does not In People v. Alvarado, 2013 IL App (3d) 120467, the appel-
provide an avenue for admitting another writing or recorded late court held that, where the defendant knew and agreed to
statement.” Id., at ¶48. the condition for admitting the favorable portion of a video
For a recent decision applying the above principles, in the recording, the trial court’s ruling admitting the part of the
context of a postconviction proceeding, where the defendant video unfavorable to the defendant (which the trial court had
alleged ineffective assistance of counsel for not invoking the previously suppressed) was correct under the completeness
completeness doctrine and where the circuit court dismissed doctrine. But it held that it would have been preferable to have
the defendant’s petitions as frivolous and patently without admitted the unfavorable portion of the video recording during
merit, see People v. Viramontes, 2021 IL App (1st) 190665, the State’s rebuttal case. And a specially concurring judge
¶¶49-60. concluded that, if the admission of the unfavorable portion of
Examples of other appellate court cases involving the com- the video was error, it was invited error because the defendant
pleteness doctrine are worthy of note—if only to demonstrate chose to admit the favorable part of the tape, knowing that the
that determinations regarding application of the rule can be trial court’s condition for admitting that portion of the tape was
controversial. the admission of the unfavorable portion.
In People v. Ruback, 2013 IL App (3d) 110256, one of the
issues addressed by the appellate court was whether a video-
Rule 201. Judicial Notice of Adjudicative Facts Rule 201. Judicial Notice of Adjudicative Facts
(a) Scope. This rule governs judicial notice of an (a) Scope of Rule. This rule governs only judicial
adjudicative fact only, not a legislative fact. notice of adjudicative facts.
(b) Kinds of Facts That May Be Judicially (b) Kinds of Facts. A judicially noticed fact must be
Noticed. The court may judicially notice a fact that is one not subject to reasonable dispute in that it is either
not subject to reasonable dispute because it: (1) generally known within the territorial jurisdiction
(1) is generally known within the trial court’s of the trial court or (2) capable of accurate and ready
territorial jurisdiction; or determination by resort to sources whose accuracy
(2) can be accurately and readily determined cannot reasonably be questioned.
from sources whose accuracy cannot reasonably be (c) When Discretionary. A court may take judicial
questioned. notice, whether requested or not.
(c) Taking Notice. The court: (d) When Mandatory. A court shall take judicial
(1) may take judicial notice on its own; or notice if requested by a party and supplied with the
(2) must take judicial notice if a party requests necessary information.
it and the court is supplied with the necessary infor- (e) Opportunity to be Heard. A party is entitled
mation. upon timely request to an opportunity to be heard as to
(d) Timing. The court may take judicial notice at the propriety of taking judicial notice and the tenor of
any stage of the proceeding. the matter noticed. In the absence of prior notification,
(e) Opportunity to Be Heard. On timely request, a the request may be made after judicial notice has been
party is entitled to be heard on the propriety of taking taken.
judicial notice and the nature of the fact to be noticed. (f ) Time of Taking Notice. Judicial notice may be
If the court takes judicial notice before notifying a taken at any stage of the proceeding.
party, the party, on request, is still entitled to be heard. (g) Informing the Jury. In a civil action or pro-
(f ) Instructing the Jury. In a civil case, the court ceeding, the court shall inform the jury to accept as
must instruct the jury to accept the noticed fact as conclusive any fact judicially noticed. In a criminal
conclusive. In a criminal case, the court must instruct case, the court shall inform the jury that it may, but is
the jury that it may or may not accept the noticed fact not required to, accept as conclusive any fact judicially
as conclusive. noticed.
COMMENTARY
statutory procedures for admitting statutes and court decisions, See, specifically, section 8-1003 of the Code of Civil
see 735 ILCS 5/8-1101-1106; and for statutory procedures for Procedure (735 ILCS 5/8-1003), which addresses both legisla-
admitting court, municipal, corporate, and land office records, tive facts and common law: “Every court of this state shall take
and patents for land, state patents, and state land sales, see 735 judicial notice of the common law and statutes of every state,
ILCS 5/8-1201-1211. territory and other jurisdiction of the United States.”
Author’s Commentary on Ill. R. Evid. 201(b)
IRE 201(b) is identical to the federal rule before the latter’s v. Bee Construction (1983), 96 Ill. 2d 159, 166,
amendment for stylistic purposes effective December 1, 2011. citing Ashland Savings & Loan Association v. Aetna
See Murdy v. Edgar, 103 Ill. 2d 384 (1984) (providing the same Insurance Co. (1974), 18 Ill. App. 3d 70, 78.”
standards contained in the rule). In Mehlberg, the appellate court declined to take judicial
In People v. Tassone, 41 Ill. 2d 7 (1968), the State failed notice of secondary sources that had not been submitted to
to prove the value of a stolen semi-trailer truck. In affirming the trial court but were submitted to the appellate court for the
the defendant’s conviction for felony theft, the supreme court purpose of impeaching the State’s expert witnesses concerning
reasoned: DNA evidence. The court accordingly struck the portions of
“We see no valid reason why notice may not be the appendix to the defendant’s brief that contained secondary
taken in a case such as this that the property has a materials from various publications, as well as the portions of
value of over $150. Courts do not operate in a vac- the defendant’s brief that referred to them.
uum; they are presumed to be no more ignorant People v. Heard, 2021 IL App (1st) 192062, was a bench
than the public generally, and will take judicial trial in which the defendant was charged with possession of
notice of that which everyone knows to be true. less than 15 grams of a substance containing methylenedi-
[Citation.] To say that it is not common knowledge oxymethamphetamine (ecstasy or MDMA). A police officer,
that a large tractor and trailer are worth more than who made a traffic stop of the defendant who was driving the
$150 is to close our eyes to reality. We do not take car, asked the defendant what was in the knotted plastic bag
judicial notice of the exact value of the property that was protruding from the center console. The defendant
but we do take notice that it is worth more than responded, “dust.” Pointing out that there was no evidence that
$150.” Tassone, 41 Ill. 2d at 12. “dust” meant ecstasy, the appellate court reversed the defen-
In the pre-codification decision in People v. Mehlberg, dant’s conviction, reasoning:
249 Ill. App. 3d 499, 531-32 (1993), relying upon and citing “The State offered no evidence to support the
supreme court precedent, the appellate court provided this judge’s finding that ‘dust *** is a street term for
succinct summary of evidence subject to judicial notice: the drug commonly known as ecstasy.’ The State
“Courts may take judicial notice of matters which contends that the trial judge could rely on his
are commonly known or of facts which, while own knowledge of street names for drugs, but we
not generally known, are readily verifiable from find that the judge is not at liberty to take judi-
sources of indisputable accuracy. (People v. Davis cial notice of the meaning of slang expressions.
(1976), 65 Ill. 2d 157, 161.) A court will not take Therefore, there must be some admitted evidence
judicial notice of critical evidentiary material of the meaning of the slang expression.” Id. at ¶18
not presented in the court below, however, and (ellipsis is the court’s).
this is especially true of evidence which may
be significant in the proper determination of the
issues between the parties. Vulcan Materials Co.
In re N.G.: Supreme Court Disagreement on Application of The takeaway from N.G.: Although the supreme court
Judicial Notice
approved the use of judicial notice in this case, trial lawyers
In In re N.G., 2018 IL 121939, judicial notice played a
should ensure that the record in the trial court—which, of
key role in the underlying decision of the four justices in the
course is the record on appeal—provides the facts and argu-
supreme court majority, but the use of judicial notice drew
ments relevant to the appeal (as well as to the trial), so that no
heavy criticism from the three dissenting justices. In that case,
initial recourse to judicial notice on appeal is necessary.
the supreme court reviewed the appellate court reversal of the
Recent Decisions Disallowing Judicial Notice
judgment of the circuit court terminating a father’s parental
For a case that cites this codified rule and other decisions in
rights to his minor son, on the grounds that he was an unfit par-
holding that testimony from a separate proceeding not involving
ent based on a statute in the Adoption Act (750 ILCS 50/1(D)),
the defendant was not subject to judicial notice, see People v.
which presumed him to be “depraved” because he had been
Rubalcava, 2013 IL App (2d) 120396. See also In re S.M., 2015
convicted of at least three felonies. One of the father’s three
IL App (3d) 140687 (reversing delinquency finding in holding
convictions was for an unlawful use of a weapon charge under
that the trial court should not have taken judicial notice of the
a statute, a part of which the supreme court had determined to
information in the State’s rebuttal closing argument to establish
be facially unconstitutional in its decision in People v. Aguillar,
the age element (that the juvenile was under 18 years of age)
2013 IL 112116. Because the record on appeal did not contain
for the offense of unlawful possession of a concealable firearm,
information regarding the specific provision of the statute under
where the State presented no evidence of juvenile’s age during
which the father had been convicted, the appellate court, sua
the evidentiary stage at trial, and holding that, to establish age
sponte, examined and took judicial notice of court records
of juvenile beyond a reasonable doubt, judicial notice could
from the father’s prior prosecution in the circuit court. Citing a
not be taken: of the fact that the proceeding was in juvenile
number of appellate court decisions, the supreme court major-
court, of “the file,” and of the fact that juvenile had previously
ity found that “[d]oing so was well within the appellate court’s
made an unsworn statement that he was 16 years of age to the
authority,” and it found that the records confirmed that the
court during his arraignment).
father’s conviction was based on sections of the statute found
See also People v. Crawford, 2013 IL App (1st) 100310, ¶125
to be unconstitutional in Aguillar. N.G., at ¶32.
(“expert’s deposition [in another case] was not undisputed, so
In addressing that portion of the majority’s decision, the dis-
judicial notice of the substance of that testimony—but not the
sent was critical of the appellate court’s taking judicial notice of
fact that the expert testified—would be inappropriate”); and
facts from the earlier criminal proceeding “to establish eviden-
People v. Shamhart, 2016 IL App (5th) 130589, ¶ 39 (“The
tiary proof regarding the nature of the conviction,” and using
court could have taken notice that the defendant had filed
those facts “to not only fill evidentiary gaps in the record but
documents, but it could not have taken judicial notice of the
as a basis to vacate the judgment of conviction in the [earlier]
content of the documents, as that content was disputed.”).
criminal proceeding.” Id. at ¶115. The dissent then contended:
In Shrock v. Ungaretti & Harris Ltd., 2019 IL App (1st)
“none of the majority’s cited precedent, nor the Illinois Rules of
181698, the appellate court noted that “it would be improper
Evidence (Ill. R. Evid. 201 (eff. Jan. 1, 2011)) regarding judicial
to judicially notice the allegations in a pleading filed in another
notice, countenances the use of judicially noticed facts from
lawsuit and take those allegations to be established facts in this
outside the record on appeal to fill gaps in the evidentiary
case” (id. at ¶ 66 (emphasis by the court)), but it held that its
record and to sua sponte vacate a judgment of conviction in a
reliance on other filings by the plaintiff were indicative of the
separate criminal proceeding. The majority ignores any proper
plaintiff’s knowledge of alleged injury, which was related to
limitations on the use of judicially noticed facts.” Id. (Emphasis
whether the statute of limitations barred the current litigation.
in original).
In Ittersagen v. Advocate Health and Hospitals Corp., 2021 judicial notice because it was not evidence of an adjudicative
IL 126507, the appellate court denied the plaintiff’s motion to fact, he noted that just as an appellate brief in the Seventh
take judicial notice of a tax document to support his allegation Circuit is not evidence, neither is a lawyer’s motion in state
of juror bias. In its review, the supreme court affirmed the court. He distinguished the current request from a situation
appellate court’s ruling, reasoning: where a document is offered for judicial notice merely to show
“Plaintiff forfeited his argument concerning the tax that it had been filed.
document by failing to raise it in the trial court, Finally, Judge Easterbrook explained why he was denying
and he compounded the forfeiture by waiting until the request for judicial notice in its entirety, including even the
the eleventh hour to present it to the appellate first two documents that were indeed subject to judicial notice.
court. See Village of Lake Villa v. Stokovich, 211 His reasons were pragmatic:
Ill. 2d 106, 121 (2004) (issues not raised in the When evidence is “not subject to reasonable dis-
trial court are forfeited and may not be raised on pute,” there’s no need to multiply the paperwork
appeal). The forfeiture obviates the need to address by filing motions or “Requests.” Just refer to the
whether the tax document is subject to judicial evidence in the brief and explain there why it
notice.” Ittersagen, at ¶76. is relevant and subject to judicial notice. If the
assertion is questionable, the opposing litigant
Seventh Circuit Judge’s Advice on Seeking Judicial Notice on
Appeal can protest. “On timely request, a party is entitled
In In the Matter of Steven Robert Lisse, 905 F.3d 495 (7th to be heard on the propriety of taking judicial
Cir. 2018), Judge Frank Easterbrook, in his capacity as motions notice and the nature of the fact to be noticed.”
judge, explained why he was publishing an explanation for Rule 201(e) [which is substantively identical to IRE
his denial of a document styled “Request for Judicial Notice,” 201(e)]. That “timely request” and the “opportunity
“in the hope of forestalling other, similar applications, which to be heard” both belong in the next brief. So if an
recently have increased in frequency.” appellant proposes judicial notice, the appellee’s
After first providing the two requirements of FRE 201(b)— objection can be presented in its own brief. If it
which is substantially identical to IRE 201(b)—Judge Easterbrook is an appellee who proposes judicial notice, the
pointed out that the appellant in the case at bar made requests appellant’s reply brief provides the opportunity to
for judicial notice of four documents. Two of the requests were be heard in opposition. There’s no need to engage
for orders entered by a state court in Wisconsin. He concluded in motion practice, require the attention of addi-
that, as public records, they were appropriate subjects of judi- tional appellate judges, and defer briefing.
cial notice. See Menominee Indian Tribe v. Thompson, 161 F.3d Judge Easterbrook’s opinion certainly should be heeded
449, 456 (7th Cir. 1998) and FRE 901(b)(7). when judicial notice is sought before the Seventh Circuit. And
The third document was a power of attorney filed in state its relevance to appeals in Illinois courts of review should be
court. Citing various rules of evidence, he questioned whether considered.
the document could meet the requirements for proving authen-
Sampling of Illinois Appellate and Seventh Circuit Court Decisions
ticity and even for relevance. He noted that, even if the docu- on Judicial Notice Based on Internet Searches
ment had been filed in the proceedings at bar, it would not be In a decision that predates the Illinois Rules of Evidence, the
subject to judicial notice; and it would not receive privileged appellate court cited the two requirements now incorporated
status because it was filed in a state court. in IRE 201(b)(1) and (2) in holding that it could take judicial
The fourth document was a lawyer’s motion filed in the same notice of a Google Map submitted by the State for the first time
state court. Pointing out that the document was not subject to on appeal, in order to show that the location where a drug
transaction occurred was within 1,000 feet of a public park. estimates are a different matter for bicycle travel time distance.
See People v. Clark, 406 Ill. App 3d 622 (2d Dist. 2010) (“case That is so because “[a]ny number of factors could impact a
law supports the proposition that information acquired from cyclist’s travel time, including the cyclist’s level of intoxication
mainstream Internet sites such as Map Quest and Google Maps (recall that [defendant] was drunk), the type and quality of the
is reliable enough to support a request for judicial notice”). bicycle, and the cyclist’s proficiency at riding a bike.” Julius,
Also, in People v. Stiff, 391 Ill. App. 3d 494 (5th Dist. 2009), slip op. at 8-9.
the appellate court consulted Google Maps to determine the For those interested in pursuing the role of an appellate
distance between the place where the victim was set on fire and court’s Internet research for facts that are not in the record, the
the place to which he ran, as an aid to determine the admissi- Seventh Circuit Court of Appeals decision in Rowe v. Gibson,
bility of statements made by him under the excited utterance 798 F.3d 622, (7th Cir. 2015), is must reading. In the majority
exception to the hearsay rule. And in Hoskin v. Union Pacific decision, Judge Richard Posner presented numerous facts
R.R. Co., 365 Ill. App. 3d 1021 (5th Dist. 2006), the appellate derived from Internet searches in support of the reversal of sum-
court sua sponte consulted MapQuest to determine distances mary judgment entered against a pro se plaintiff. Judge Posner’s
between towns for the purpose of determining the propriety of justification for such searches makes for interesting reading, as
the trial court’s ruling on a forum non conveniens motion. does the short concurring opinion which concludes that resort
In Shaw v. Haas, 2019 IL App (5th) 180588, citing its to the Internet was unnecessary, and the partially concurring
decision in Hoskin, the appellate court used Google Maps, in and dissenting opinion, which asserts that the court’s opinion in
a case involving the propriety of a circuit court’s ruling on a reversing the grant of summary judgment was premised on its
motion based on forum non conveniens, to take judicial notice finding of a genuine issue of material fact based on its Internet
for determining the distances for a defendant traveling either to research.
the Monroe County courthouse or to the St. Clair County court- Note that, in People v. Gocmen, 2018 IL 133388, the
house. Id. at ¶24. The appellate court also took judicial notice supreme court separately provided two Internet sites to bolster
from Google Maps to determine the four-minute traveling time conclusions it drew from the record:
difference from the defendant’s corporate headquarters to the • To demonstrate as unfounded the appellate court’s
two courthouses. Id. at ¶ 25. Parenthetically, consistent with inference from testimony that, because the “NARK
the supreme court’s decision in Dawdy v. Union Pacific R.R. swipe” used by a police officer was “used to test
Co., 207 Ill. 2d 166, the appellate court held that the annual for opiates when cocaine is not an opiate,” and
report of the Administrative Office of the Illinois Courts is a it therefore was “unclear whether [the police
proper reference in assessing court congestion. Id. at ¶29. officer] even administered the correct type of test,
Citing Clark and Stiff, in Wisnasky v. CSX Transportation, and if so, whether he administered it correctly,”
Inc. 2020 IL App (5th) 170418, a case involving tragic deaths the supreme court relied on a website that stated
from the collision of a car and a train, the appellate court took “that NARK tests are available for a variety of sub-
judicial notice of an aerial photograph from Google Maps stances, including opiates and cocaine.” Gocmen,
and included the photograph in its opinion, “[f]or the limited at ¶¶44-45.
purpose of assisting the reader in understanding the layout of • To demonstrate that, if the trial and appellate
[the relevant street crossing the railroad tracks].” Id. at ¶6, courts based their conclusions on what they
In United States v. Julius, ___ _F.4th ___, No. 20-2451 (7th believed was common knowledge that track marks
Cir. September 24, 2021) the Seventh Circuit noted several on the defendant’s arm could have been caused
instances where courts have taken judicial notice of distance by regular injections of insulin for diabetes as
estimates from Google Maps, but reasoned that travel-time claimed by the defendant, they were mistaken—a
fact acknowledged by defense counsel at oral Responsibility of the American Bar Association, issued on
argument and augmented by a website, provided December 8, 2017. In concluding that judges should not per-
in a footnote, that “[i]nsulin is injected subcutane- form research designed to obtain adjudicative facts that are not
ously into the fatty layer between skin and muscle, subject to judicial notice, the Opinion notes that Rule 2.9(C) of
not intravenously.” Id. at ¶¶49-51 and note 2. the Model Code of Judicial Conduct states:
Note too that in Guerra v. Advanced Pain Centers S.C., 2018 “A judge shall not investigate facts in a matter
IL App (1st) 171857, an appeal in a medical malpractice action, independently, and shall consider only the evi-
the dissenting justice referred to numerous Internet sites related dence presented and any facts that may properly
to drug addiction and the effect of numerous opiate drugs on a be judicially noticed.”
patient who died from an acetaminophen overdose. The Opinion further notes that “Comment [6] to Rule 2.9
For additional interesting reading concerning Internet clarifies that the ‘prohibition against a judge investigating the
research for facts that are not in the record, see Formal Opinion facts in a matter extends to information available in all medi-
478 of the Standing Committee on Ethics and Professional ums, including electronic.’”
Author’s Commentary on Ill. Rs. Evid. 201(c) and 201(d)
IRE 201(c) and 201(d) are identical to their counterpart fed- Regarding IRE 201(c), see People v. Barham, 337 Ill. App. 3d
eral rules before their amendment for stylistic purposes effective 1121 (2003) (court may take sua sponte judicial notice, but is
December 1, 2011. Note, however, that the December 1, 2011 not required to do so if not requested, and should satisfy certain
amendment consolidated the two federal rules into a single requirements when doing so).
rule designated as FRE 201(c)(1) and (2).
Author’s Commentary on Ill. R. Evid. 201(e)
IRE 201(e) is identical to the federal rule before the latter’s improper for the trial court to take judicial notice of the juve-
amendment for stylistic purposes effective December 1, 2011. nile’s unsworn statement, made during his previous arraign-
See People v. Barham, 337 Ill. App. 3d 1121 (2003) (discussing ment proceeding, that he was 16 years of age, to establish an
the principles generally and emphasizing that a court, like element of the offense of unlawful possession of a concealable
a jury, should not rely upon facts within its knowledge that firearm by a person under the age of 18 years).
have not been admitted). See also In re S.M., 2015 IL App (3d) The second sentence of the rule entitles a party to be heard
140687 (citing Barham, in holding that, after the evidence was if the court takes judicial notice without notifying the parties.
closed and during the State’s rebuttal closing argument, it was
Author’s Commentary on Ill. R. Evid. 201(f)
IRE 201(f) is identical to FRE 201(f) before the latter’s the previous federal subdivision designation by moving what
amendment for stylistic purposes effective December 1, 2011. had been FRE 201(f) to its current location as FRE 201(d).
Note, however, that the December 1, 2011 amendment altered
Author’s Commentary on Ill. R. Evid. 201(g)
Except for the substitution of “Informing” in the title of the jury, IRE 201(g) is identical to what was FRE 201(g) before its
Illinois rule for the word “Instructing” in the title of the federal amendment for stylistic purposes effective December 1, 2011.
rule, and the substitution in the Illinois rule of “inform” for Note, however, that the December 1, 2011 amendment re-des-
the word “instruct” in both sentences of the federal rule, in ignated the federal rule as FRE 201(f).
order to permit more informal direction from the court to the
Rule 301. Presumptions in Civil Cases Generally Rule 301. Presumptions in General in Civil Actions
and Proceedings
In a civil case, unless a federal statute or these rules In all civil actions and proceedings not otherwise
provide otherwise, the party against whom a presump- provided for by rule, statute or court decision, a
tion is directed has the burden of producing evidence to presumption imposes on the party against whom it is
rebut the presumption. But this rule does not shift the directed the burden of going forward with evidence to
burden of persuasion, which remains on the party who rebut or meet the presumption, but does not shift to
had it originally. such party the burden of proof in the sense of the risk
of nonpersuasion, which remains throughout the trial
upon the party on whom it was originally cast.
COMMENTARY
• People v. Hester, 131 Ill. 2d 91 (1989) (defining a evidence, including the permissive inference. But, where
permissive presumption as “one where the fact finder the permissive inference stands unsupported by corrobo-
is free to accept or reject the suggested presumption. rating circumstances, the lead from the proved fact to the
It places no burden on the defendant and affects the presumed element must satisfy the higher standard proof
application of the ‘beyond a reasonable doubt’ standard beyond a reasonable doubt for there is nothing else on
only if, under the facts of the case, there is no rational which to rest the fact finder’s verdict of guilt.”).
way the trier could make the connection permitted by Sampling of Relevant Decisions
the inference. The validity of a permissive presumption For cases relevant to the codified rule, see Franciscan Sisters
is subject to a less stringent test: there must be a ratio- Health Care Corporation v. Dean, 95 Ill. 2d 452 (1983) (in a
nal connection between the facts proved and the facts will contest case, where there was a rebuttable presumption of
presumed, and the ultimate fact must be more likely undue influence on the testatrix by the lawyer who drew up the
than not to flow from the basic fact. Nevertheless, the will and was a beneficiary under it, holding that the presump-
inference must be supported by corroborating evidence tion of undue influence was overcome by evidence provided
of guilt; if there is no corroborating evidence, the leap by defendant and describing Thayer’s “bursting bubble” theory
from the proved fact to the presumed element must still and citing cases applying it); McElroy v. Force, 38 Ill. 2d 528
be proved beyond a reasonable doubt.” Hester, 131 Ill. (1967) (in personal injury case, rebuttable presumption that
2d at 99-100 (citations and internal quotation marks deceased owner of car was its driver was not rebutted by any
omitted). evidence and thus properly sustained the judgment); Collins v.
• People v. Housby, 84 Ill. 2d 415 (1981) (holding a Noltensmeier, 2018 IL App (4th) 170443 (holding that, based
“permissive inference may always be rejected by the fact on defendant’s unauthorized exercise of a power of attorney
finder if it chooses to ignore it, and where there is corrob- which made no specific allowance for her changing the ben-
orating evidence, the permissive inference is not the sole eficiary on the IRA of the deceased granter of the power of
and sufficient basis for a finding of guilt. It is unnecessary attorney, the rebuttable presumption of fraudulent self-dealing
therefore to establish that the inference follows beyond was created, and holding further that, in the absence of clear
a reasonable doubt from the proved fact, for while it is and convincing evidence to rebut the presumption, the grant
necessary to prove the elements of an offense beyond a of summary judgment in favor of the plaintiffs was affirmed).
reasonable doubt, that may be done by resort to all the
Rule 302. Applying State Law to Presumptions in [FRE 302 not adopted.]
Civil Cases
COMMENTARY
Rule 401. Test for Relevant Evidence Rule 401. Definition of “Relevant Evidence”
Evidence is relevant if: “Relevant evidence” means evidence having any
(a) it has any tendency to make a fact more or less tendency to make the existence of any fact that is of
probable than it would be without the evidence; and consequence to the determination of the action more
(b) the fact is of consequence in determining the probable or less probable than it would be without the
action. evidence.
COMMENTARY
to the admission of autopsy photos in a murder prosecution. Plaintiff testified that since the accident he has experienced
Citing IRE 401 and People v. Bounds, 171 Ill. 2d 1, 46 (1995), chronic neck pain from his head hitting the back window of
and reasoning that the word “consequence” in the phrase “any his truck. He sought treatment a few days after the accident
fact that is of consequence” can be equated with the word from his family physician, and then from a physician who was
“issue,” the court held that there is no basis for contending a pain management specialist. This physician opined that “the
that a disputed issue is necessary to satisfy the requirements of accident caused whiplash and may have caused an annular
relevancy. Because the State is required to prove every element tear and loss of integrity of disc space.” Id. at ¶13. He testified
of a charged offense, it is permitted to “prove any fact it needs that even a low-speed collision could cause the injuries. Over
to prove, such as the cause or manner of death, even if that plaintiff’s objections, in response to the question whether his
fact is not disputed.” Tatum, at ¶ 113. Thus, as the supreme findings might not have been caused by the accident, the
court established in Bounds, autopsy photos were properly physician responded, “Yes, that’s true. It might not have been
sent to the jury room even though the cause of death was caused by the accident.” Id. at ¶14. When asked if some other
not disputed at trial. Noting, however, that evidence offered event could have caused the findings, the physician answered
to prove undisputed facts is more likely to be excluded under that “a lot of things could have happened” but he did not know
Rule 403’s balancing test, the appellate court applied that test of anything. Id.
in holding that the photos were properly provided to the jury The jury returned a verdict for defendant, awarding plaintiff
because of arguments made by defense counsel in closing zero damages. The trial court denied plaintiff’s posttrial motion
arguments, which put the victim’s injuries at issue and resulted for a new trial on the issue of damages. On appeal, finding
in the court’s conclusion that “the probative value of the photos that the trial court improperly allowed the admission of the
was no longer substantially outweighed by the risk of unfair postaccident photographs without offering expert testimony
prejudice.” Id. at ¶121. and that “the jury’s findings are unreasonable and not based on
the evidence presented at trial,” the appellate court reversed
Peach v. McGovern: Rejecting Prior Appellate Court Decisions in
Permitting Admissibility of Postaccident Vehicular Photographs the judgment and remanded for a new trial on damages. Id.
In Peach v. McGovern, 2019 IL 123156, a jury trial involving at ¶ 19. On further review, the supreme court reversed the
a rear-end vehicular accident, the trial court directed a verdict appellate court’s judgment and affirmed the judgment of the
against defendant on the issue of negligence at the close of the circuit court.
evidence, but reserved the questions of causation and damages The supreme court first considered the propriety of the
for the jury. Testifying as an adverse witness at trial, defendant admission of the postaccident vehicular photographs. After
said she saw plaintiff stopped at a stop sign and that she fully quoting IRE 401, the court noted that “[i]n general, photo-
stopped behind his pickup truck. She testified that she “spaced graphic evidence is admissible if it has a reasonable tendency
out” and let her “foot off the brake just a little bit, [and] tapped to prove or disprove a material fact at issue in the case but may
into his truck,” without pressing the gas pedal once she had be excluded when irrelevant or immaterial or if its prejudicial
stopped. Peach, at ¶ 5. Plaintiff testified that his back bumper nature outweighs its probative value.” Id. at ¶27. Citing appel-
was dented; defendant testified that her license plate was bent. late court decisions where photographic evidence had been
The front bumper on defendant’s car was cracked, but it was admitted, the court pointed out that in this case the appellate
not determined that the accident caused the crack. Id. at ¶ 6. court had relied on Baraniak v. Kurby, 371 Ill. App. 3d 310
Photos of both vehicles were taken after the accident, and both (2007) and DiCosola v. Bowman, 342 Ill. App. 3d 530 (2003),
parties testified that the photos were accurate. Over plaintiff’s both of which had held that, “absent expert testimony connect-
objections, all the photos were admitted into evidence. ing the vehicle damage depicted in postaccident photographs
to the plaintiff’s injuries, such photographs are not relevant and, party’s testimony concerning the nature of impact
therefore, not admissible.” Peach, 2019 IL 123156 at ¶28. are equally and appropriately made from the
The court pointed out that both appellate court decisions photographs.
had cited Voykin v. Estate of DeBoer, 192 Ill. 2d 49 (2000) in “If a jury is allowed to consider relevant testimony
support of their holdings. In rejecting the application of Voykin about vehicle speed and impact forces, a jury
in circumstances related to the admission of photographs, should be permitted to consider photographs that
the supreme court noted that Voykin simply had rejected the depict the damage, or lack thereof, done to the
same-part-of-the-body rule, which had erroneously allowed vehicles. These subjects are traditionally things
evidence of a prior injury without a showing that it was causally jurors can understand, and experts have not been
connected to the present injury, provided both injuries affected needed to supplement witness descriptions of
the same part of the body. (For more on Voykin, see the heading events. Illinois courts have long recognized the
Expert Testimony Needed to Show Causal Connection Between jury’s proper role in evaluating vehicle accident
Injury at Issue and Preexisting Injury or Conditions under the cases and the credibility of witnesses based on
Author’s Commentary on Ill. R. Evid. 702.) The court reasoned facts testified to and demonstrated by photo-
that the holding in Voykin, which was predicated on the admis- graphs.” Id. at ¶ 38-39 (all citations and internal
sibility of the plaintiff’s prior injury, “is factually distinguishable quotations marks omitted).
from Baraniak and DiCosola, which did not involve prior inju-
Lorenz v. Pledge: Confronting Confusing and Misleading Video
ries.” Peach, 2019 IL 123156 at ¶ 31. Because, the court held,
For a decision addressing the test for the admissibility of
those decisions extended Voykin beyond its reasonable limits,
experimental evidence, see Lorenz v. Pledge, 2014 IL App (3d)
they were overruled. Id.
130137. In that case, the appellate court cited IREs 401 and
Citing IRE 401 and numerous prior reviewing court deci-
402 as providing the general guidelines for the admission of
sions, the supreme court summarized its holding regarding the
experiments—in this case a video created by the defendants
admission of the postaccident photographs as follows:
after an accident. The video was designed primarily to show
“Postaccident photographs, just like testimony of
the line-of-sight of the driver in the plaintiffs’ car, which was
witnesses describing an accident, are relevant to
involved in a collision with a police car pursuing another car,
the issues of proximate cause and injury. Further,
resulting in a death and injuries that were the subject of the
neither the photos nor the witness testimony need
action for damages. During trial, although the defendants
necessarily prove or disprove a particular medical
repeatedly informed the jury that the video was not a re-cre-
condition in order to be admissible. Complete
ation, a majority of the appellate court panel held that the video
certainty is not required for admissibility. An item
did not satisfy the foundational requirement for establishing
of evidence being but a single link in a chain of
that the essential conditions regarding the line of sight were
proof, need not prove conclusively the proposition
substantially similar. With one justice dissenting on rehearing,
for which it is offered. It is enough if the item could
the majority held that the video had the potential for confusing
reasonably show that a fact is slightly more prob-
and misleading the jury. The judgment of the circuit court was
able than it would appear without the evidence.
therefore reversed and the cause was remanded for a new trial.
Additionally, arguments about inferences from a
Rule 402. General Admissibility of Relevant Rule 402. Relevant Evidence Generally Admissible;
Evidence Irrelevant Evidence Inadmissible
Relevant evidence is admissible unless any of the All relevant evidence is admissible, except as other-
following provides otherwise: wise provided by law. Evidence which is not relevant is
· the United States Constitution; not admissible.
· a federal statute;
· these rules; or
· other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible.
COMMENTARY
Rule 403. Excluding Relevant Evidence for Rule 403. Exclusion of Relevant Evidence on
Prejudice, Confusion, Waste of Time, or Other Grounds of Prejudice, Confusion, or Waste of Time
Reasons Although relevant, evidence may be excluded if
The court may exclude relevant evidence if its proba- its probative value is substantially outweighed by the
tive value is substantially outweighed by a danger of one danger of unfair prejudice, confusion of the issues,
or more of the following: unfair prejudice, confusing or misleading the jury, or by considerations of undue
the issues, misleading the jury, undue delay, wasting delay, waste of time, or needless presentation of cumu-
time, or needlessly presenting cumulative evidence. lative evidence.
COMMENTARY
had provided ineffective assistance in not stipulating only to murder, the trial court had improperly applied Delaware’s Rule
the defendant’s felony status, which resulted in the evidence 403—identical to FRE 403—in barring defense cross-examina-
of the defendant’s murder conviction. The court reversed the tion of a prosecution witness about the witness’s possible bias
conviction and remanded the case to the circuit court. based on the State’s dismissal of his public drunkenness charge.
Parsing a term within the rule, in Smith v. Hunt, 707 F.3d Although the Supreme Court held that the denial of cross-ex-
803 (7th Cir. 2013), the Seventh Circuit Court of Appeals amination on that issue was improper as violative of the sixth
equated “probative” with “relevant”: amendment right to confrontation, it held that the error was
“Whether evidence is ‘probative’ is a similar ques- harmless beyond a reasonable doubt. Two years later, in Olden
tion to whether it is ‘relevant.’ Compare Black’s v. Kentucky, 488 U.S. 227 (1988), in a per curiam decision,
Law Dictionary 1323 (9th ed. 2009) (defining the Supreme Court held that, where the man with whom the
‘probative’ as ‘[t]ending to prove or disprove’), alleged victim of a rape was cohabiting saw her exit another
with id. at 1404 (defining ‘relevant’ as ‘[l]ogically man’s car, the defendant, whose defense was consensual
connected and tending to prove or disprove a sex, had the constitutional right under the Sixth Amendment
matter in issue.’)” Smith, 707 F.3d at 810. confrontation clause to question the alleged victim about her
Citing People v. Eyler, 133 Ill. 2d 173, 218 (1989), in cohabitation with that man to show her motive in making the
People v. Edgeston, 157 Ill. 2d 201, 237 (1993), the Illinois claim of rape. The Court further held that the Kentucky appellate
Supreme Court noted that it had “defined prejudice [as later court holding “that petitioner’s right to effective cross-examina-
defined in IRE 403] as an undue tendency to suggest decision tion was outweighed by the danger that revealing [the alleged
on an improper basis, commonly an emotional one, such as victim’s] interracial relationship [with the man with whom she
sympathy, hatred, contempt, or horror, and held that relevant was cohabiting] would prejudice the jury against her” was a
evidence may be excluded if its prejudicial effect substantially limitation “without reason.” Olden, 488 U.S. at 232.
outweighs its probative value.” The Edgeston court went on Van Arsdall and Olden show the tension between Rule 403
to note that “evidence which is otherwise relevant need not balancing and the confrontation rights of an accused. For a
be excluded merely because it may prejudice the accused or discussion of those decisions and their application in a habeas
arouse feelings of horror or indignation in the jury.” Edgeston, corpus decision of the Seventh Circuit, see Rhodes v. Dittmann,
157 Ill. 2d at 237-38. 903 F.3d 646 (7th Cir. 2018) (trial court erred in limiting,
A note of the federal Advisory Committee (1972) pointed under Wisconsin’s version of Rule 403, cross-examination of
out: defendant’s sister, who testified as a prosecution witness, on the
“In reaching a decision whether to exclude on prosecution’s central theory that defendant killed the deceased
grounds of unfair prejudice, consideration should because the deceased had severely beaten the witness the day
be given to the probable effectiveness or lack before the murder, thus depriving defendant of his efforts to
of effectiveness of a limiting instruction.***The rebut the prosecution motive theory (based on prior and the
availability of other means of proof may also be an most recent abuse of the witness) by providing a more com-
appropriate factor.” plete story of the deceased’s violent abuse of the witness).
Tension Between Confrontation Clause and Rule 403
In Delaware v. Van Arsdall, 475 U.S. 673 (1986), the United
States Supreme Court held that, in this jury-trial prosecution for
Rule 404. Character Evidence; Crimes or Other Rule 404. Character Evidence Not Admissible to
Acts Prove Conduct; Exceptions; Other Crimes
(a) Character Evidence. (a) Character Evidence Generally. Evidence of a
(1) Prohibited Uses. Evidence of a person’s person’s character or a trait of character is not admis-
character or character trait is not admissible to prove sible for the purpose of proving action in conformity
that on a particular occasion the person acted in therewith on a particular occasion, except:
accordance with the character or trait. (1) Character of Accused. In a criminal case,
(2) Exceptions for a Defendant or Victim in a evidence of a pertinent trait of character offered by
Criminal Case. The following exceptions apply in a an accused, or by the prosecution to rebut the same;
criminal case: (2) Character of Alleged Victim. In a criminal
(A) a defendant may offer evidence of the case, and subject to the limitations imposed by
defendant’s pertinent trait, and if the evidence is section 115–7 of the Code of Criminal Procedure
admitted, the prosecutor may offer evidence to (725 ILCS 5/115–7), evidence of a pertinent trait of
rebut it; character of the alleged victim of the crime offered
(B) subject to the limitations in Rule 412, a by an accused, or by the prosecution to rebut the
defendant may offer evidence of an alleged victim’s same, or evidence of a character trait of peacefulness
pertinent trait, and if the evidence is admitted, of the alleged victim offered by the prosecution in a
the prosecutor may: homicide or battery case to rebut evidence that the
(i) offer evidence to rebut it; and alleged victim was the first aggressor;
(ii) offer evidence of the defendant’s same (3) Character of Witness. Evidence of the char-
trait; and acter of a witness, as provided in Rules 607, 608,
(C) in a homicide case, the prosecutor may and 609.
offer evidence of the alleged victim’s trait of (b) Other Crimes, Wrongs, or Acts. Evidence of
peacefulness to rebut evidence that the victim was other crimes, wrongs, or acts is not admissible to prove
the first aggressor. the character of a person in order to show action in
(3) Exceptions for a Witness. Evidence of a conformity therewith except as provided by sections
witness’s character may be admitted under Rules 115–7.3, 115–7.4, and 115–20 of the Code of Criminal
607, 608, and 609. Procedure (725 ILCS 5/115–7.3, 725 ILCS 5/115–7.4,
(b) Other Crimes, Wrongs, or Acts. and 725 ILCS 5/115–20). Such evidence may also be
(1) Prohibited Uses. Evidence of any other admissible for other purposes, such as proof of motive,
crime, wrong, or act is not admissible to prove a per- opportunity, intent, preparation, plan, knowledge,
son’s character in order to show that on a particular identity, or absence of mistake or accident.
occasion the person acted in accordance with the (c) In a criminal case in which the prosecution
character. intends to offer evidence under subdivision (b), it must
(2) Permitted Uses. This evidence may be admis- disclose the evidence, including statements of witnesses
sible for another purpose, such as proving motive, or a summary of the substance of any testimony, at a
opportunity, intent, preparation, plan, knowledge, reasonable time in advance of trial, or during trial if the
identity, absence of mistake, or lack of accident. court excuses pretrial notice on good cause shown.
(3) Notice in a Criminal Case. In a criminal
case, the prosecutor must:
(A) provide reasonable notice of any such Committee Comment to Rule 404
evidence that the prosecutor intends to offer at Evidence of character or a trait of character of a person for
trial, so that the defendant has a fair opportunity the purpose of proving that the person acted in conformity
to meet it; therewith on a particular occasion is not admissible, except
(B) articulate in the notice the permitted in a criminal case to the extent provided for under Rule
purpose for which the prosecutor intends to offer 404(a)(1) (regarding the character of the accused), and under
the evidence and the reasoning that supports the Rule 404(a)(2) (regarding the character of the alleged victim).
purpose; and Rule 404(b) renders inadmissible evidence of other crimes,
(C) do so in writing before trial—or in any wrongs, or acts to prove the character of a person in order
form during trial if the court, for good cause, to show action in conformity therewith, but allows proof of
excuses lack of pretrial notice. other crimes, wrongs, or acts where they are relevant under
statutes related to certain criminal offenses, as well as for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident.
COMMENTARY
Law of Evidence Embrace This Archaic/Modern Concept? 43 person in order to show action in conformity therewith” (i.e.,
Ohio N. U. L. Rev. 293 (2017), discussing the origins of Illinois’ propensity), but then it provides Illinois statutory exceptions
careful habits and calling for its abolition. that permit evidence to show propensity, and (as in the federal
IRE 404(a)’s Exceptions to Non-Admissibility rule) allows well established common-law exceptions that are
After providing the general principle of non-admissibility of admissible for purposes other than to show propensity—i.e., for
character evidence, IRE 404(a) then provides three exceptions proof of the non-character purposes permitted by the rule (such
to that general principle, the first two of which apply only in as motive, opportunity, intent, preparation, plan, knowledge,
criminal cases and are first exercisable only by the defendant identity, or absence of mistake or accident).
(IRE 404(a)(1) and (2)), while the third applies in both civil Thus, both subdivisions of IRE 404 generally prohibit evi-
and criminal cases (IRE 404(a)(3)). Each of the exceptions is dence for propensity purposes, but IRE 404(a) allows character
explained below in the separate Author’s Commentaries on Ill. evidence for such purposes in some specified circumstances,
R. Evid. 404(a) (1), (2), and (3). while IRE 404(b) allows evidence of specific instances of
“crimes, wrongs, or acts” offered for propensity purposes as
IRE 404(b): General Rule of Exclusion and Exceptions to the
General Rule allowed by specific statutes, as well as those offered not for
IRE 404(b) provides the general principle that evidence of propensity purposes but for the specific non-character purposes
other crimes, wrongs, or acts (i.e., evidence of specific instances allowed by the rule.
of conduct) is not admissible “to prove the character of a
Author’s Commentary on Ill. R. Evid. 404(a)(1)
The first part of IRE 404(a)(1), which allows evidence of a Decisions Applying IRE 404(a)(1)
pertinent trait of character offered by a defendant in a criminal IRE 404(a)(1) and cases interpreting it demonstrate both the
case, or by the prosecution to rebut such evidence, is identical similarity of and the difference from the federal rule described
to FRE 404(a)(1) before the latter’s amendment solely for stylistic above. See People v. Devine, 199 Ill. App. 3d 1032 (1990)
purposes effective December 1, 2011. See People v. Lewis, 25 (holding the State may introduce evidence of a defendant’s
Ill. 2d 442 (1962) (whether or not he testifies at trial, defendant violent nature “only if the defendant first opens the door by
may offer proof as to a pertinent trait of his character); People introducing evidence of good character to show that he is a
v. Holt, 398 Ill. 606 (1948) (where defendant offers evidence of quiet and peaceful person”); and People v. Harris, 224 Ill. App.
his character trait, the State may offer evidence regarding the 3d 649 (1992) (holding that defendant’s prior convictions for
same character trait on rebuttal). crimes of violence may be introduced “only when the defen-
The second part of pre-amended FRE 404(a)(1) (now dant clearly puts his character in issue by introducing evidence
embodied in FRE 404(a)(2)(B)(ii) through amendment effective of his good character to show that he is a peaceful person”).
December 1, 2011), was not adopted because there is no See, in contrast, People v. Cervantes, 2014 IL App (3d)
Illinois authority that permits prosecution evidence to rebut a 120745, where the trial court allowed the State to admit into
defendant-offered character trait of the victim by admitting evi- evidence certified copies of the defendant’s three separate
dence concerning the same trait of character of the defendant. misdemeanor convictions for battery and two domestic battery
Like FRE 404(a)(2)(B)(i), the Illinois rule allows the prosecution offenses, to counterbalance the defendant’s evidence that the
to rebut the defendant’s evidence of a pertinent trait of charac- victim in this murder prosecution had a history of making
ter of the alleged victim but, in contrast to FRE 404(a)(2)(B)(ii), threats of violence, and therefore may have been the initial
does not allow it to do so by offering the same character trait aggressor. Citing Harris, the majority of a panel of the appellate
of the defendant. court held that the evidence of the defendant’s convictions
was improperly admitted because the defendant had not put
his character in issue. The dissent contended that Devine and based on relevant character evidence which, as provided by
Harris were wrongly decided and, citing what is now FRE IRE 405(a), “may be made by testimony as to reputation, or by
404(a)(2)(B)(ii) (which, as pointed out above, has not been testimony in the form of an opinion.”
codified in the Illinois rule), contended that “when a defendant See, for example, People v. Hermens, 5 Ill. 2d 277, 287
raises self-defense and introduces evidence of the victim’s (1955) (noteworthy for its humorous account of the drunken
violent or aggressive character, the prosecution should be able exploits of the defendant and two codefendants in stealing nine
to introduce evidence of the defendant’s violent or aggressive pigs, and quoting People v. Page, 365 Ill. 524 (1937), that “nei-
nature.” Again, the view of the dissenting judge as to what ther on cross-examination nor in rebuttal of proof of good char-
should be allowed is not the rule in Illinois. acter can particular acts of misconduct be shown,” in reversing
the defendant’s conviction and holding that “eliciting from the
Specific Instances of Defendant’s Conduct to Rebut Defendant-
Presented Character Evidence Prohibited character witnesses such statements [about the defendant] as ‘I
heard he done some dishonest acts’ and ‘He’s been in trouble
IRE 404(a)(1) does not permit the State to rebut defen-
before but I don’t know what for’ were highly prejudicial
dant-presented character evidence of the defendant’s own
and may have influenced the jury in reaching their verdict of
character through proof of specific instances of the defendant’s
guilty”). See also People v. West, 246 Ill. App. 3d 1070 (1993)
conduct. That prohibition is consistent with Illinois cases that
(reversing defendant’s conviction for murder, in holding that
specifically prohibit such rebuttal evidence, and differs from
questions on cross-examination of defendant’s girl friend about
FRE 405(a)’s allowance of cross-examination of the character
defendant’s committing battery on her on one occasion and
witness on “relevant specific instances of the person’s conduct.”
threatening her with a gun on another were improper).
In Illinois, the prosecution’s rebuttal of defense-presented
character evidence of the defendant’s own character must be
Author’s Commentary on Ill. R. Evid. 404(a)(2)
IRE 404(a)(2) is identical to FRE 404(a)(2) before the latter’s 404(a)(2) allow the defendant to admit character
amendment solely for stylistic purposes effective December 1, evidence of an alleged victim—a victim of a
2011, except for two minor differences, the first of which ((1) homicide under the federal rule; a victim of a
below) is not a substantive difference: homicide or a battery under the Illinois rule—but
(1) The statute referred to in IRE 404(a)(2)—section they prohibit the defendant from presenting evi-
115-7 of the Code of Criminal Procedure of 1963 dence that violates the rape shield law as provided
(which is provided at Appendix E)—is commonly by FRE 412 for federal cases and as provided by
referred to as the “rape shield law.” It prohibits section 115-7 of the Code of Criminal Procedure
evidence of the prior sexual conduct or the repu- for Illinois cases (as well as by IRE 412, through its
tation of the alleged victim or corroborating (i.e., reference to section 115-7).
“propensity”) witness, in specified sexual offenses (2) The second difference codifies Illinois law by
and in other specified offenses involving sexual adding “battery” to the Illinois rule. Thus, that
conduct. Though FRE 412, which provides the offense, which is not included in the federal rule,
federal rape shield law, does not refer to a statute, provides a basis in addition to the offense of
that federal rule limits the defendant’s evidence homicide for triggering character-trait evidence
in similar fashion. (For more information on the to establish that the alleged victim was the first
Illinois statute, see the Author’s Commentary on aggressor. Note that Illinois does not require the
Ill. R. Evid. 412 infra.) Thus, in a criminal case, defendant to be aware of an alleged victim’s vio-
both the Illinois and the federal version of Rule lent character at the time of the alleged offense.
See People v. Lynch, 104 Ill. 2d 194 (1984). Note, determining whether it is reasonable for the trial court to allow
too, that IRE 405(b)(2) allows evidence of specific the admission of evidence pursuant to Lynch”).
instances of the alleged victim’s prior violent con- In People v. Evans, 2018 IL App (4th) 160686, where
duct in criminal homicide or battery cases under defendant was convicted by a jury of aggravated domestic
the same circumstances specified in IRE 404(a)(2). battery and domestic battery and where defendant alleged
Thus, when the prerequisites of both IRE 404(a) self-defense, the appellate court held that the trial court had
(2) and IRE 405(b)(2) are met in cases involving properly ruled inadmissible the post-offense conduct of
homicide or battery offenses, both evidence of the defendant’s female victim. The excluded post-offense evidence
alleged victim’s character for peacefulness and involved the victim’s having been charged for damaging defen-
evidence of the alleged victim’s specific instances dant’s siding and vehicle and phone video showing the victim
of conduct are admissible. pouring liquid on defendant and setting fire to his beard with a
Decisions Applying IRE 404(a)(2) cigarette. The appellate court reasoned that, though the victim’s
For a discussion of the application of IRE 404(a)(2) and IRE aggressive and violent character may support a self-defense
405(b)(2), see People v. Yeoman, 2016 IL App (3d) 140324, claim by showing that defendant’s knowledge of the victim’s
¶¶28-29 (discussing effect of the two rules where defendant is aggressive and violent character affected his perception of the
aware of the prior conduct of the alleged victim (for its effect on victim’s actions and his reactions to those actions, “information
defendant’s state of mind) or where defendant is unaware of the unknown to a defendant at the time of the incident could not
alleged victim’s prior conduct (to bolster defendant’s claim that have impacted the defendant’s perceptions of the victim’s
the alleged victim was the initial aggressor where the evidence actions.” Evans, at ¶ 30. As for the holding in Lynch that a
related to self-defense is conflicting)). See also People v. Gibbs, victim’s “aggressive and violent character is relevant to show
2016 IL App (1st) 140785, ¶¶ 33-34 (holding that trial court who was the aggressor, and the defendant may show it by
did not abuse its discretion in allowing stipulation to 14-year- appropriate evidence, regardless of when he learned of it” (id.,
old conviction of complaining witness for domestic violence, citing Lynch, 104 Ill. 2d at 200), the appellate court noted that
while not allowing cross-examination concerning details defendant had relied upon IRE 404(a)(2) in seeking admission
that led to conviction: “Nowhere does Lynch require that the of the evidence (and not that the victim was biased or had some
court must allow live testimony on the issue of a victim’s prior unknown motive for testifying against him), and it held that
conviction. Rather, it is only where the evidence of a victim’s “Lynch does not stand for the proposition a victim’s actions
violent character is based on arrests or altercations for which after the day of the charged offense should be admissible to
there was no conviction that live testimony is required.”); show whether the victim was the aggressor at the time of the
People v. Morgan, 197 Ill. 2d 404 (2001) (holding no error in charged offense.” Id.
trial court’s excluding proffered evidence concerning the abuse Related to the prosecution’s right to rebut character evi-
inflicted on defendant’s mother by her parents during her child- dence of a victim, see People v. Knox, 94 Ill. App. 2d 36 (1968)
hood many years before where defendant sought admission, (defendant’s attack on the character of the victim of a murder
under Lynch, of evidence corroborative of his similar abuse by offense, through the cross-examination of two State witnesses,
his grandparents for the purpose of justifying killing them in allowed the State to provide evidence of the victim’s good
self-defense, where the evidence was too remote and defen- reputation during the State’s case-in-chief).
dant had no knowledge of his mother’s prior abuse); People v. People v. Hamilton, 2019 IL App (1st) 170019, is notewor-
Barnes, 2017 IL App (1st) 143902, ¶ 49 (relying on Morgan, thy on the issue of the defendant’s state of mind, although it is
in holding that “remoteness in time is a valid consideration in not directly related to IRE 404(a)(2) and though the appellate
court stated that “Lynch is irrelevant” (id. at ¶ 34). In that case,
the appellate court, with one judge dissenting, reversed the “the testimony at issue was relevant for the limited and nuanced
defendant’s conviction for first degree murder based on defense purpose of representing the defendant’s state of mind at the
counsel’s providing ineffective assistance of counsel by failing time he shot [the victim]” (id. at ¶ 35 (emphasis in original)),
to properly argue for the admission of evidence by the defen- the court criticized defense counsel for not having made offers
dant’s girlfriend that, although no gun was found on the victim, of proof regarding the proffered testimony and for not arguing
the victim carried a gun and that the defendant knew that the that the evidence was relevant to corroborate defendant’s belief
victim carried a gun—evidence that the majority reasoned and state of mind in the need for self-defense.
would have supported his theory of self defense. Holding that
Author’s Commentary on Ill. R. Evid. 404(a)(3)
IRE 404(a)(3), which applies in both civil and criminal cases, (2) in a criminal case—subject to the limitations
is identical to the federal rule before the latter’s amendment placed on such evidence by the rape shield law—
solely for stylistic purposes effective December 1, 2011. Its under IRE 404(a)(2), a pertinent character trait of
provisions are summarized in item number (3) under the next the alleged victim, offered by the defendant, is
heading at the end of this commentary, which summarizes all admissible as evidence that the alleged victim may
three of IRE 404(a) subdivisions. have acted in conformity with that character trait,
Summary of IRE 404(a)(1), (2), and (3) and evidence by the prosecution to rebut such
In sum, the specified exceptions to the general rule of evidence also is admissible; and
non-admissibility of character evidence, which is provided by (3) in both civil and criminal cases, under IRE
the three subdivisions of IRE 404(a) mean that: 404(a)(3), character evidence is admissible under
(1) in a criminal case, under IRE 404(a)(1), a per- IRE 607 (for impeachment purposes), IRE 608
tinent character trait of the defendant, offered by (character evidence of untruthfulness of a witness,
the defendant, is admissible as evidence that the or of truthfulness to rebut such evidence), and IRE
defendant may have acted in conformity with that 609 (evidence of a prior conviction of a witness to
character trait, and evidence offered by the pros- attack the witness’s credibility).
ecution to rebut such evidence also is admissible;
In sum, the amended rules require the prosecution to inform four-part test it had previously employed for admitting other-act
the defendant of its intent to offer the evidence without a evidence, in favor of “an approach that more closely tracks the
request by the defendant, to do so pretrial within a reasonable Federal Rules of Evidence.” Gomez, 763 F.3d at 850. The court
time “so that the defendant has a fair opportunity to meet it,” offered the following summary of the new framework:
and to “articulate in the notice the permitted purpose for which “In sum, to overcome an opponent’s objection
the prosecutor intends to offer the evidence and the reasoning to the introduction of other-act evidence, the
that supports the purpose.” proponent of the evidence must first establish
Note that, consistent with a relevant Illinois statute, IRE that the other act is relevant to a specific purpose
404(c) provides for similar notice from the prosecution as is other than the person’s character or propensity to
now provided by the federal rule. behave in a certain way. See FED. R. EVID. 401,
Differences in Federal and Illinois Rule 404(b) 402, 404(b). Other-act evidence need not be
As the last two headings under this commentary and the excluded whenever a propensity inference can be
next commentary on IRE 404(b) make clear, to fully appreciate drawn. But its relevance to ‘another purpose’ must
the following discussion of FRE 404(b), the difference between be established through a chain of reasoning that
the two 404(b) rules must be emphasized. The federal rule does does not rely on the forbidden inference that the
not permit evidence of other crimes, wrongs, or acts to prove person has a certain character and acted in accor-
propensity, as does the Illinois rule through its cited statutory dance with that character on the occasion charged
provisions. The federal rule permits evidence of other crimes, in the case. If the proponent can make this initial
wrongs, or acts, not to establish character or for propensity showing, the district court must in every case
purposes, but to prove motive, opportunity, intent, preparation, assess whether the probative value of the other-act
plan, knowledge, identity, absence of mistake, or lack of evidence is substantially outweighed by the risk
accident—all well established common-law principles and all of unfair prejudice and may exclude the evidence
of which also are permitted by the Illinois rule. But note the under Rule 403 if the risk is too great. The court’s
admonition provided by the Seventh Circuit in United States v. Rule 403 balancing should take account of the
Lowe, 2F.4th 652 (7th Cir. 2021): extent to which the non-propensity fact for which
“Of course, ‘Rule 404(b)(2)’s list is ‘not exhaus- the evidence is offered actually is at issue in the
tive.’” United States v. Torres-Chavez, 744 F.3d case.” Id. at 860.
988, 991 (7th Cir. 2014) (quoting United States Under Gomez’s framework, then, a two-step process is
v. Taylor, 522 F.3d 731, 735 (7th Cir. 2008)). applied when the party-opponent objects to the admission of
For example, we have held that evidence of a a crime, wrong, or other act: (1) the proponent of the evidence
defendant’s involvement in ‘a home invasion and must first establish that the evidence should be admitted not
shooting earlier that night’ can be admissible to to prove character but for a relevant purpose permitted by
prove that the defendant unlawfully possessed a FRE 404(b)(2) (i.e., relevant under Rules 401 and 402 to prove
firearm later that night. United States v. Canady, motive, opportunity, intent, preparation, plan, knowledge,
578 F.3d 665, 677 (7th Cir. 2009).” Lowe, 2F.4 at identity, absence of mistake, or lack of accident), and (2) the
656. trial court must determine that Rule 403’s requirement that the
evidence’s probative value is not substantially outweighed by
U.S. v. Gomez: a New Framework for Admissibility of “Other-Act
Evidence” unfair prejudice.
In United States v. Gomez, 763 F.3d 845 (7th Cir. 2014), the In Gomez, in applying the new framework, the entire en
Seventh Circuit Court of Appeals, sitting en banc, replaced the banc court found that, because there was no issue concerning
intent in this general intent crime and the defendant did not finding no error and holding that the trial court
contest intent, the trial court erred in admitting evidence of a was under no duty to provide an unsolicited
small quantity of cocaine found in the defendant’s pants pocket curative instruction to the jury, under the holding
in his bedroom in this trial for conspiracy to distribute cocaine, in Gomez, which expressed “caution against judi-
but a majority of the court found the error to be harmless. In a cial freelancing in this area because sua sponte
later case, United States v. Stacy, 769 F.3d 969 (7th Cir. 2014), limiting instructions ... may preempt a defense
the court applied the new framework in finding that evidence preference to let the evidence come in without the
of the defendant’s prior possession of methamphetamine was added emphasis of a limiting instruction.” Thomas,
improper to prove his intent to use pseudoephedrine to make 897 F.3d at 813, citing Gomez, 763 F.3d at 869
methamphetamine, but in this case too, the court found the (internal quotation marks omitted)).
error to be harmless. • United States v. Brewer, 915 F. 3d 408 (7th Cir.
For other examples of the application of Gomez, see: 2019) (in a bank-robbery conviction that occurred
• United States v. Morgan, 929 F.3d 411 (7th Cir. in Indiana, affirming admission of evidence of
2019) (where defendant conceded possession of unindicted robberies in Ohio and California, over
methamphetamine but denied intent to distribute, defendant’s contention about dissimilarities among
it was proper to admit testimony of three Rule the robberies, pointing out that modus operandi
404(b) witnesses to establish defendant’s intent to means “a ‘distinctive’—not identical—‘method of
distribute; and noteworthy for stressing the need operation.’” Brewer, 915 F. 3d at 416).
for the trial court not to vaguely instruct the jury • United States v. Thomas, 986 F.3d 723 (7th Cir.
not to consider the 404(b) evidence for “other pur- 2021) (in this jury trial for mail fraud based on
poses,” but rather to explicitly instruct the jury that defendant’s using the mail to collect four checks
defendant’s past acts are not to create an inference in insurance money totaling $426,227.31 for a fire
that the defendant is a person whose past acts sug- to a mobile home owned by him, applying Gomez
gest a willingness or propensity to commit crimes). and holding that evidence of insurance money paid
• United States v. Norweathers, 895 F.3d 485 (7th to defendant for four other fires in homes owned by
Cir. 2018) (in prosecution for transporting and pos- him, or in which he had an interest, as well as two
sessing child pornography, court approved admis- other houses burned as a diversion, was properly
sion of evidence of uncharged email exchange admitted as direct evidence of defendant’s scheme
between defendant and another individual about to defraud and not “other acts” under Rule 404(b),
drugging and having sex with young boys for pur- and holding further that evidence of an earlier
poses of proving identity, intent, and motive where fire that was too far removed in time to be part of
defendant contended pretrial that another person the scheme was properly admitted as evidence of
had briefly logged into his email account). defendant’s modus operandi).
• United States v. Thomas, 897 F.3d 807 (7th Cir. • United States v. Lowe, 2 F4th 652 (7th Cir. 2021)
2018) (recognizing as understandable witness’s (noting prior Seventh Circuit concerns about using
unsolicited and potentially prejudicial answers to other-acts evidence merely to “complete the story”
questions posed by prosecutor—answers regard- or to show “background” or “the course of investi-
ing three uncharged allegedly criminal acts by gation,” compiling the evidence linking a handgun
defendant—given prosecutor’s pretrial disclosure found in a dumpster to the defendant in holding
concerning her inability to control witness, and that evidence of shots fired in the area where the
defendant was, just moments after the shots were prior bad acts. In doing so, the court held that admissibility of
fired, was properly admitted, reasoning, “In short, the prior acts was established by applying a four-part test:
while ‘complete-the-story evidence’ is suspect, “(1) the evidence is directed toward establishing a
relevant other-act evidence generally may be matter in issue other than the defendant’s propen-
admitted under Rule 404(b) ‘when its admission sity to commit the crime charged; (2) the evidence
is supported by some propensity-free chain of rea- shows that the other act is similar enough and
soning.’ United States v. Gomez, 763 F.3d 845, 856 close enough in time to be relevant to the matter
(7th Cir. 2014) (citing, among other cases, United in issue; (3) the evidence is sufficient to support a
States v. Lee, 724 F.3d 968, 978 (7th Cir. 2013)). jury finding that the defendant committed the sim-
‘This is not to say that other-act evidence must be ilar act; and (4) the probative value of the evidence
excluded whenever a propensity inference can be is not substantially outweighed by the danger of
drawn; rather, Rule 404(b) excludes the evidence unfair prejudice.” Howard, 692 F.3d. at 703.
if its relevance to ‘another purpose’ is established The court held that the first prong of the test was satisfied
only through the forbidden propensity inference.’ in this case because the prior bad acts provided evidence of
Id.” Lowe, 2 F4th at 656 (emphasis is the court’s). motive, intent, plan, and preparation. Moreover, the court
• United States v. Jarigese, 999 F.3d 464, (7th Cir. held, the acts were similar to and close enough in time to be
2021) (in this prosecution for wire fraud and relevant, the evidence of their commission was sufficient to
bribery involving defendant’s bribery of the mayor establish that the defendant had committed them, and the Rule
of Markham, it was proper to admit evidence that 403 balancing test was satisfied, especially in light of the trial
the mayor accepted bribes from other persons court’s numerous limiting instructions to the jury.
who were not on trial, because the evidence of the In United States v. Chapman, 692 F.3d 822 (7th Cir. 2012),
other bribes were not “other bad acts” under FRE another case that preceded the new framework provided by
404(b), but rather they were directly relevant to Gomez, the Seventh Circuit applied the same four-part test in
proving the charged scheme that the mayor, defen- upholding, under FRE 404(b), the admission of evidence of the
dant, and the others were engaged in a scheme to defendant’s 2004 forgery conviction in a prosecution for forg-
defraud the City of Markham of money through the ery offenses that occurred approximately two years after that
mayor’s soliciting and the others paying bribes in 2004 conviction. Holding that the prior conviction “shed light
exchange for contracts with Markham, where the on the questions of intent and lack of mistake” (Chapman, 692
same scheme to conceal payments to the mayor F.3d at 827), the court rejected the defendant’s contention that
in providing money to companies he controlled the conviction was improperly admitted to prove propensity
and which did nothing to earn the payments were by suggesting to the jury “once a forger, always a forger.” Id.
involved, just as applied in a conspiracy case). at 826-27. The court also held that the other prongs of the test
Examples of Decisions Before Gomez had been satisfied.
For an example of a case applying the test for FRE 404(b) In United States v. Perkins, 548 F.3d 510 (7th Cir. 2008),
(again, not for propensity purposes, but for the common-law where the defendant was tried for possession with intent
purposes allowed by the rule) before the en banc Gomez to distribute crack cocaine, the Seventh Circuit upheld the
decision, see United States v. Howard, 692 F.3d 697 (7th Cir. admission of the defendant’s two prior convictions for unlawful
2012), where, in reviewing a criminal conviction, the Seventh possession of cocaine and one conviction for unlawful delivery
Circuit affirmed the admissibility of the defendant’s numerous of cocaine. Applying the four standards that applied before the
Gomez decision, the court held that the evidence of the defen-
dant’s convictions were probative of his “knowledge of cocaine for possession of cocaine with intent to distribute was admitted
and crack cocaine, and were not intended to show a propensity under FRE 404(b) for the purpose of proving intent. Concluding
to commit the crimes charged.” Id. at 514. Noting that the that the admitted other-crime evidence was not relevant to
defendant denied that the cocaine found in his residence was establish intent given the defendant’s specific defense denying
his, the court concluded that he impliedly denied his intent to possession, the court reversed the convictions. Pointing out the
distribute the drug and, because he was charged with a specific limitations on the admission of other-crimes evidence under
intent crime, his three convictions established his “knowledge FRE 404(b), and the danger of a jury’s interpreting such evi-
of the respective value of even small quantities of cocaine, dence as connected to propensity, the court admonished trial
which is evidence of his intent to distribute.” Id. Citing United courts to apply fact-specific analysis to individual cases.
States v. Puckett, 405 F.3d. 589 (7th Cir. 2005), where the Distinguishing FRE 404(b) from IRE 404(b)
court also concluded that a prior conviction for distribution of Unlike IRE 404(b), which permits propensity evidence
crack cocaine was admissible where the charged act involved under specified Illinois statutes, FRE 404(b) provides no excep-
distribution of cocaine, and United States v. Hernandez, 84 tions that permit other-act evidence for propensity purposes.
F.3d 931 (7th Cir. 1996), where the court held that “a prior The decision in United States v. Richards, 719 F.3d 746 (7th
conviction for possession of marijuana was ‘similar enough’ for Cir. 2013) illustrates the difference between the common-law
Rule 404(b) purposes to charged crimes of distributing cocaine exceptions permitted by the rule versus character evidence to
and heroin, even though different drugs were involved” (id. at prove propensity as allowed in some instances by the Illinois
515), the court held that the defendant’s three prior convictions rule, which the federal rule does not permit. In Richards, the
were substantially similar to the charged offense. Seventh Circuit held that the defendant’s prior bad acts were
Other Noteworthy Decisions properly admitted for the permissible purpose of showing his
In United States v. Taylor, 701 F. 3d 1166 (7th Cir. 2012), knowledge that a bag in his possession contained narcotics, the
two guns possessed and abandoned by uncharged men, who defendant having denied knowledge of its contents. In closing
were arrested in connection with shootings committed by the arguments, however, the prosecutor improperly used the prior
defendant, were admitted into evidence. The Seventh Circuit bad acts to argue the defendant’s propensity to deal drugs—
rejected the defendant’s argument based on the other-crimes resulting in the court’s finding of prejudice and the reversal of
prohibition of FRE 404(b), pointing out that “[t]he language the conviction and the remand of the case for a new trial.
of Rule 404(b) does not apply to crimes, wrongs, or acts of Distinguishing FRE 404(b) from FRE 413 and FRE 608(b)
another person.” Taylor, 701 F.3d at 1172. The “crimes, wrongs, or other acts” of FRE 404(b) should
United States v. Turner, 709 F.3d 1187 (7th Cir. 2013), be distinguished from those admissible under FRE 413 and
presents an example of a reversal of drug-related convictions FRE 608(b). Proof of bad acts under FRE 404(b) is admissible
based upon the improper admission of prior-crime evidence in federal cases only to show non-character purposes such
under FRE 404(b). In that case, the defendant was convicted of as “motive, opportunity, intent, plan, knowledge, identity, or
possession of cocaine with intent to distribute and possession absence of mistake or accident.” Proof of similar crimes in sex-
of a firearm in furtherance of that offense. The convictions were ual assault cases, however, is allowed for propensity purposes
based on evidence recovered through the 2008 execution of a under FRE 413. Also, proof of bad acts under FRE 608(b) (under
search warrant on a home. At trial, the defendant denied that the label of “specific instances of conduct”) are admissible
the cocaine found in the home was his. He did not deny that the pursuant to cross-examination in federal cases for the limited
quantity and packaging of the cocaine established that it was purpose of attacking a witness’s character for untruthfulness.
intended for distribution. The defendant’s conviction in 2000
the prior offenses it lists, but also the evidence underlying the In Dabbs, the supreme court provided a succinct sum-
conviction. mary—together with citations to its relevant decisions—con-
See also People v. Chapman, 2012 IL 111896, where the cerning the common-law principles embodied in IRE 404(b)
supreme court held that it was proper to introduce evidence of related to the admission of other-crimes evidence for reasons
a prior domestic battery conviction in a prosecution for first-de- other than propensity:
gree murder, where the victim in both offenses was the same “As a common law rule of evidence in Illinois,
person. Later, in People v. Ross, 2018 IL App (2d) 161079, the it is well settled that evidence of other crimes
appellate court held that Chapman did not address the issue is admissible if relevant for any purpose other
before it, where in the case at bar a nonenumerated conviction than to show a defendant’s propensity to commit
(battery; defendant was originally charged with domestic bat- crimes. People v. Wilson, 214 Ill. 2d 127, 135-36
tery but convicted of battery) was admitted for a similar kind of (2005). Such purposes include but are not limited
offense (murder), whereas Chapman involved an earlier con- to: motive (People v. Moss, 205 Ill. 2d 139, 156
viction for an enumerated offense (domestic battery) and a later (2001) (evidence that defendant previously sex-
prosecution for murder (one of the “types of offenses” to which ually assaulted child properly admitted to show
section 115-20 applies). Nonetheless, the court held, “we need his motive for murder of child and her mother)),
not resolve the issue, because the other-crimes evidence was intent (Wilson, 214 Ill. 2d at 141 (evidence that
admissible under the common law and section 115-7.4.” Ross, teacher previously touched other students in
at ¶175. similar manner properly admitted to show intent
See also People v. Fields, 2013 IL App (3d) 080829-C, in prosecution for aggravated criminal sexual
where, in a prosecution for sex offenses, the appellate court abuse of students)), identity (People v. Robinson,
found no impropriety in the admission, for propensity purposes 167 Ill. 2d 53, 65 (1995) (evidence that defendant
under section 115-7.3, not only testimonial evidence about a previously attacked other similar victims in similar
prior sex offense involving a different victim, but also evidence manner properly admitted under theory of modus
of a conviction for that sex offense—although the court held operandi to show identity of perpetrator in pros-
that the subsequent reversal of the conviction that had been ecution for armed robbery and armed violence)),
admitted into evidence required the reversal and remand of and accident or absence of mistake (Wilson, 214
the case at bar. Ill. 2d at 141 (evidence that teacher previously
touched other students in similar fashion properly
People v. Dabbs: Blueprint for Understanding IRE 404(b)
admitted to show lack of mistake in prosecution
The Illinois Supreme Court’s decision in People v. Dabbs,
for aggravated criminal sexual abuse of students)).”
239 Ill. 2d 277 (2010), predated the effective date of Illinois’
Dabbs, 239 Ill. 2d at 283.
codified evidence rules by almost six weeks, but referred to the
Three supreme court cases could be added to the supreme
then-pending rules generally and to IRE 404(b) in particular. It
court cases listed in the above quote, all of which approved
succinctly summarized supreme court cases that have allowed
the admission of evidence, under common-law principles,
admissibility of other-crime evidence for non-propensity
that the same or a similar gun was used by the defendant in
purposes and, based on its findings that the statute respects
another offense in order to prove the defendant’s identity as
traditional rules relevant to the admissibility of evidence and
the offender in the case on trial: People v. Coleman, 158 Ill.
that it meets constitutional muster, it upheld the validity and
2d 319 (1994); People v. Richardson, 123 Ill. 2d 322 (1988);
applicability of section 115-7.4, which allows other-crime
People v. Taylor, 101 Ill. 2d 508 (1984).
evidence for propensity purposes in domestic violence cases.
The central issue in the Dabbs case involved the validity prove defendant’s motive and intent to commit the
of the propensity exception in section 115-7.4 of the Code of murders).
Criminal Procedure of 1963 (725 ILCS 5/115-7.4; see Appendix • People v. Kliner, 185 Ill. 2d 81 (1998) (in a
B). During his trial for the offense of domestic violence on his prosecution for murder, holding evidence that
girlfriend, evidence was admitted, pursuant to the statute, of the defendant had allegedly pistol-whipped a witness,
defendant’s domestic violence on his former wife. On review, who was his former girlfriend, was not relevant to
the supreme court first noted that it had previously upheld the establish any material question, and that introduc-
constitutionality of section 115-7.3 (involving evidence of sim- ing such evidence to show that defendant was a
ilar offenses in sexual assault cases; see Appendix A) in People bad person who had a propensity to commit crime
v. Donoho, 204 Ill. 2d 159 (2003). It then considered whether or to enhance the credibility of a witness was not
section 115-7.4 meets threshold requirements related to proper).
admissibility of evidence. It concluded that, not only does the • People v. Placek, 184 Ill. 2d 370 (1998) (holding
statute not abrogate the principle that the decision regarding that in a prosecution for delivery of a controlled
the admission of evidence is within the sound discretion of the substance, the State improperly presented evi-
trial court, it does not alter the principle that, to be admissible, dence concerning the recovery of stolen property
evidence must be relevant, and it does not abrogate the need from defendant’s barn and made references in
for the trial court to balance probative value with the risk of opening statements and through evidence to
undue prejudice. defendant’s dealing in stolen auto parts).
The court then upheld section 115-7.4’s constitutionality, • People v. Illgen, 145 Ill. 2d 353 (1991) (citing
rejecting the defendant’s due process claim, based on its other cases that provided non-propensity bases for
conclusions that there is no constitutional prohibition against admission of prior acts of violence, and holding
propensity evidence, that the common-law prohibition of that evidence that defendant physically abused
propensity evidence is an evidence rule that is subject to and verbally threatened his wife throughout their
exceptions, and that the relevant statute bore a rational rela- marriage was properly admitted as probative of
tionship to a legitimate legislative purpose. The supreme court defendant’s criminal intent by tending to negate
therefore held that the statute “permits the trial court to allow the likelihood that the shooting that caused his
the admission of evidence of other crimes of domestic violence wife’s death was an accident and thereby tended
to establish the propensity of a defendant to commit a crime to prove his intent, and also that the evidence was
of domestic violence if the requirements of the statute and of relevant to show their antagonistic relationship
other applicable rules of evidence are met.” Dabbs, 239 Ill.2d and thus tended to establish defendant’s motive to
at 295. kill his wife).
Supreme Court Pre-Codification Decisions Relevant to IRE 404(b) • People v. Lindgren, 79 Ill. 2d 129 (1980) (holding
In addition to the decisions provided by Dabbs in the quote evidence of arson of defendant’s ex-wife’s home
above, a number of pre-codification supreme court decisions committed by defendant after defendant commit-
provide guidance in the application of IRE 404(b): ted a murder should not have been admitted as
• People v. Heard, 187 Ill. 2d 36 (1999) (holding part of a continuing narrative because it was a
that evidence of three prior crimes revealed defen- distinct crime undertaken for different reasons at a
dant’s continuing hostility and animosity toward different place and at a separate time).
the murder victims and intent to harm them,
and thus the evidence was properly admitted to
Applying Sections 115-7.3 and 115-7.4 they did anything that challenged his assumed
For samplings of appellate court opinions applying section right of possession and control.” Kelley, at ¶107);
115-7.4 (see Appendix B), in approving the admission of evi- • People v. Ross, 2018 IL App (2d) 161079 (noting
dence of prior acts related to domestic violence, see: that sections 115-7.3 and 115-7.4 “are nearly
• People v. Kitch, 2019 IL App (3d) 170522, ¶ 33 identical, with section 115-7.3 addressing prior
(noting that section 115-7.3(c)(1), as pointed out incidents of sexual abuse, and section 115-7.4
by the supreme court in People v. Donoho, 204 Ill. addressing prior incidents of domestic violence”
2d 159, 183-84 (2003), does not provide a “bright (id. at note 4); citing decisions that hold that “the
line rule about when prior convictions are per se other-crimes evidence must bear merely ‘general
too old to be admitted,” and holding it was proper similarity’ to the charged offense” (id. at ¶ 173);
to admit, for propensity purposes, defendant’s prior citing the supreme court decision in People v.
offense that occurred 13 years before the charged Donoho, 204 Ill. 2d 159, 184-85 (2003), where
offenses where defendant had spent nearly seven the prior offense was 12-15 years earlier and
years of the 13-year period incarcerated and had other appellate court decisions where the offenses
been released from prison approximately six years ranged from 6 to 20 years earlier, and thus holding
before committing the present offenses (for other that the time lapse of nearly five years in the case at
decisions addressing the time difference between bar did not affect admissibility of the prior offenses
offenses, see the discussion under the heading, (id.); and holding that the trial court had not erred
Time Between Prior Act and Offense on Trial under in admitting defendant’s conviction for battery
the Author’s Commentary on Ill. R. Evid. 413, of the victim who was later murdered, based on
infra)); his plea of guilty to that offense from the original
• People v. Kelley, 2019 IL App (4th) 160598 (in charge of domestic battery, and the admission of
jury prosecution for murder of victim on whom evidence of defendant’s battery against the same
defendant had previously committed domestic victim, even though the charge for that offense had
violence, (1) trial court properly admitted evidence been nolle prossed by the State (id. at ¶174));
of violence on another woman whom he battered • People v. Heller, 2017 IL App (4th) 140658 (in
after she, like the murder victim, had taken money jury prosecution for domestic violence, proper to
from him, and fact that the propensity witness was admit recording of the victim, defendant’s fiancée,
a prostitute and thus the offense did not qualify as a as substantively admissible after she testified she
“domestic violence” under the relevant statute was did not recall having made the statements; also
forfeited by defendant’s not objecting on that basis proper to admit, under section 115-7.4 for pro-
and plain error not established; and (2) although pensity purposes, testimony of defendant’s former
the trial court may have erred in comparing what wife who testified about similar earlier domestic
happened to a second propensity witness to other violence, with court rejecting defendant’s claim of
propensity evidence rather than to the charged or undue focus on that other-crimes evidence);
predicate offense, the witness’s admitted evidence • People v. Nixon, 2016 IL App (2d) 130514 (apply-
properly established that “defendant was posses- ing IRE 404(b) and section 115-7.4 in affirming
sive and controlling toward his girlfriends and that trial court’s admission of defendant’s prior offense
he tended to become violent toward them when six-years earlier, where he shot the victim in a
finger and a shoulder, in a jury trial for an offense
involving shooting at the same victim’s car, for • People v. Petrakis, 2019 IL App (3d) 160399
both propensity purposes and for the non-propen- (affirming admission of evidence of defendant’s
sity common-law bases provided by IRE 404(b)); prior offenses of aggravated criminal sexual abuse,
• People v. Jackson, 2014 IL App (1st) 123258 (only which is made admissible under section 115-7.3,
general similarity of offenses is necessary, and insofar as those offenses related to the instant
prior offenses were proximate in time, one occur- prosecution for the charged offense of aggravated
ring about a year and a half before and the other criminal sexual abuse; accepting State’s conces-
five weeks before the charged offenses). sion that evidence of defendant’s prior offenses
For a sampling of appellate court opinions applying section for prostitution was improperly admitted because
115-7.3 (see Appendix A), in approving the admission of evi- that offense is not listed in section 115-7.3, but
dence of prior and subsequent sexual offenses, see: noting that IRE 404(b) provides exceptions to
• People v. Bedoya, 2021 IL App (2d) 191127, the general rule of inadmissibility, thus holding
¶¶ 90-105 (in a prosecution for eight counts of that the common-law exceptions provided by
predatory criminal sexual assault of a child, in IRE 404(b) allowed the admission of defendant’s
response to the defendant’s contentions concern- prior offenses for prostitution to prove motive and
ing numerous factual dissimilarities (primarily intent related to the charged offenses of juvenile
about where the incidents occurred) between the prostitution and promoting prostitution, especially
testimony of the youthful victim concerning the given the trial court’s instruction to the jury limit-
charged offenses and the testimony of two other ing consideration of the evidence of defendant’s
boys concerning uncharged offenses, and with prior acts on the issue of his intent, motive, design
heavy reliance on section 115-7.3 and People v. or knowledge; holding further that, based on the
Donoho, 204 Ill. 2d 159 (2003), holding that the overwhelming evidence of defendant’s guilt of
trial court had not abused its discretion in admit- aggravated criminal sexual assault (the only offense
ting the testimony of the other boys because “the on which defendant was convicted), even if the
evidence was sufficiently similar to the charged evidence of defendant’s prior prostitution offenses
conduct and not overly prejudicial.” Id. at ¶97. was wrongly admitted, the error was harmless);
• People v. Nevilles, 2021 IL App (1st) 191388, • People v. Johnson, 2014 IL App (2d) 121004 (in
¶¶ 76-83 (holding that defendant was not preju- addition to upholding the admission of other
diced by the joinder of defendant’s separate sex sexual offenses for propensity purposes under sec-
offenses against two girls under the age of 18, since tion 115-7.3 and also to prove intent, finding no
the statements of each victim would have been reversible error where the jury was also improp-
admitted in a separate trial of either victim to show erly instructed on motive, identity, and absence of
motive, intent, knowledge, absence of mistake mistake—despite finding that it was improper for
and modus operandi, as well as propensity under the trial court to admit the other-crimes evidence
section 115-7.3, and that the trial judge did not for those purposes, where the defense was con-
abuse its discretion in allowing the admission of sent—citing People v. Jones, 156 Ill. 2d 225, 240
a witness’s testimony about defendant’s statements (1993) (“Other crimes evidence that is admissible
after the dates the offenses were committed and for one reason is not affected by inadmissibility for
statements made by another witness that conflicted another reason”)).
with relevant dates provided by one of the victims.
• People v. Williams, 2013 IL App (1st) 112583 People v. Potts: Primer on Distinguishing Other-Crimes Evidence
for Propensity and Non-Propensity Purposes in Jury Instructions
(affirming a conviction for aggravated criminal
People v. Potts, 2021 IL App (1st) 161219 ¶¶171-225, mer-
sexual assault and approving the admission of
its special attention for its in-depth discussion concerning jury
evidence of a prior aggravated sexual assault
instructions in a first-degree murder conviction. At trial, the
offense for propensity purposes, after weighing
circuit court admitted evidence of defendant’s acts of domestic
the probative value of the evidence of the prior
violence against two other women as evidence of his propen-
offense against undue prejudice to the defendant
sity to kill the female victim, as well as other various kinds of
as required by section 115-7.3(c) (725 ILCS
uncharged conduct to prove his motive for killing the victim
5/115-7.3(c)).
and/or the victim’s state of mind. Because the alleged errors in
• People v. Braddy, 2015 IL App (5th) 130354 (in
the jury instructions were not properly preserved for appeal,
prosecution for sexual offenses committed by
the appellate court applied plain error review of those alleged
defendant against his 13-year old daughter and the
errors and of the alleged ineffective assistance of counsel based
14-year old daughter of his live-in girlfriend, proper
on counsel’s failure to object to the relevant instruction.
to admit evidence of sexual offenses committed by
On his contention concerning the jury instruction, defen-
defendant beginning when he was 11-years-old
dant argued that the instruction improperly allowed and even
against his then 8-year-old sister approximately 20
instructed the jury to consider all other-crimes evidence as pro-
years before).
pensity evidence. The instruction the trial court provided to the
For an example of a decision holding that the admission of
jury was based on Illinois Jury Pattern Instructions, Criminal,
evidence offered under IRE 404(b) was improper, see People
No. 3.14 (4th ed. 2000) (“IPI Criminal 4th No. 3.14”). The
v. Gregory, 2016 IL App (2d) 140294 (holding that portions
modified instruction given to the jury read:
of letters written by defendant were minimally relevant for the
“Evidence has been received that the defendant has
purpose of proving identity, but that substantial parts were not
been involved in offenses other than that charged
relevant to prove any material fact relevant to the case and
in the indictment. This evidence has been received
“because the evidence of unrelated offenses was so voluminous
on the issues of the defendant’s propensity, motive,
and inflammatory, there was a great risk that the jury would
and state of mind and may be considered by you
find defendant guilty of the charges in light of his propensity,
only for those limited purposes.”
or that it would find defendant guilty not of the charges but
Noting that the instruction “incorrectly implied that oth-
instead of one of the uncharged acts.” (Gregory, at ¶26)).
er-crime evidence was admitted as proof of his state of mind
See also People v. Lamonica, 2021 IL App (3d) 200136 (in
but not [the victim’s] as well,” because defendant did not
reversing conviction for aggravated criminal sexual assault,
seek relief on this basis on appeal, the appellate court did not
criticizing the fact that the State created a mini trial for the prior
address it. Potts, at ¶ 182. But addressing defendant’s focus on
bad acts in comparison to the evidence for the charged offense,
the instruction’s not delineating which other-crimes evidence
where the State had failed to prove force or threat of force and
the jury could properly consider for each of the listed pur-
failed to disprove defendant’s defense of consent by the alleged
poses, the appellate court pointed out the “real dangers to the
victim; and further holding that the prior bad acts evidence
defense in ‘delineating’ the permissible use[s] of each item of
was factually dissimilar to the charged conduct.) Lamonica, at
other-crimes evidence in a jury instruction.” Id. at ¶ 184. Such
¶¶48-54.
an instruction, the court reasoned, “would risk drawing undue
attention to damaging evidence.” Id.
Notwithstanding those considerations, the appellate court so, what weight should be given to this evidence
held that the instruction given the jury was improper, reject- on the issues of identification and propensity to
ing the State’s contentions that the jury could sort out proper commit sex offenses against children.”
application for the various offenses and, as a consequence, also Though defendant objected to the propensity references
rejecting the State’s reliance on People v. Lopez, 371 Ill. App. in the State-provided instruction, he offered no alternative
3d 920, 940 (2007), where only the non-propensity purposes of jury instruction. The trial court gave the tendered instruction,
intent, motive, or absence of mistake were listed. That holding, reasoning that “omitting a reference to propensity would not
the court reasoned, is distinguishable from the case at bar, give the jury a full, accurate description of the law because it
which invites propensity purposes even for offenses subject to had allowed the other-crimes evidence on the issues of both
non-propensity purposes. Potts, at 186-89. identification and propensity.” McDaniel, at ¶43.
Having found the jury instruction in this case improper, Agreeing with the trial court and applying Potts, the appel-
the appellate court considered options for properly instructing late court reasoned that “had the jury instruction at issue here
future juries, pointing out serious and likely defense concerns omitted the reference to propensity, the State would have been
in their implementation (id. at ¶¶ 191-93), without settling entitled to an instruction that the evidence could be considered
on any specific modifications. Ultimately, the appellate court for propensity.” Id. at ¶ 65. The court thus distinguished the
considered each of the other crimes-evidence (which it pointed decision in Potts by holding that “when, as here, the same
out should be referred to as “other-offense evidence” and some conduct is admitted for a limited purpose and also to prove a
of which should be referred to as “other-conduct evidence” or defendant’s propensity, a trial court does not err by instructing
“bad conduct evidence”), and held that the erroneous instruc- the jury it may consider the evidence for both propensity and
tion did not warrant reversal. Id. at ¶¶ 195-225. It also held the limited purpose.” Id. at ¶66.
that, though defense counsel had been ineffective in permitting McDaniel’s holding is that the instruction given in that case
an instruction that allowed a propensity inference to be drawn properly covered the same conduct of the defendant both for a
by the jury, neither Strickland error or plain error occurred. Id. limited purpose and for the purpose of propensity. That holding
at ¶¶218-19. does not diminish the takeaway from Potts that judges, prose-
Later, in People v. McDaniel, 2021 IL App (2d) 190496, cutors, and defense attorneys must be mindful that IPI Criminal
a prosecution for sex offenses against two minors, the State 4th No. 3.14, without appropriate modification on how to
was allowed to admit evidence that defendant had previously address different conduct that is applied in different ways,
committed similar uncharged offenses against a third minor. may seriously mislead jurors. Care must be taken to ensure
Concluding that defendant had raised an alibi defense and that that jurors be properly informed of the correct application of
the jury should therefore be instructed on both identification other-offense and other-conduct evidence.
and propensity, the trial court provided the jury an instruction Another decision involving appropriate instructions for
that read: other-offense conduct is People v. Johnson, 2021 IL App (1st)
“Evidence has been received that the defendant 190567, where a majority of an appellate court panel reversed
has been involved in conduct other than those a conviction for murder and use of a firearm in the course of
charged in the indictment. This evidence has been murder because the trial court failed to give the jury a limiting
received on the issues of defendant’s identification instruction. The case focused on a recorded jail telephone call
and propensity to commit sex offenses against involving the defendant, a conversation which could be inter-
children and may be considered by you only for preted as an effort to make a witness to the murder unavailable.
that purpose. It is for you to determine whether The majority held that the recorded phone conversation was
the defendant was involved in that conduct and, if
properly admitted as evidence of the defendant’s conscious- did not undermine the fundamental fairness of his trial,” and
ness of guilt. therefore the second prong of the plain-error exception to the
But the majority’s focus was not on the propriety of the forfeiture doctrine should not have been applied. Id. at ¶35.
admitted evidence, but on the jury instruction that was given The takeaway from Johnson: Setting aside whether the
and the one that should have been given. The trial court majority correctly applied the second prong of the plain-error
instructed the jurors that “they could consider the phone call doctrine, as Potts teaches and as stated above, care must be
‘a statement relating to the offenses charged’ and that ‘[i]t is for taken to ensure that jurors be properly informed of the correct
[the jury] to determine whether the Defendant made the state- application of other-offense and other-conduct evidence.
ment and, if so, what weight should be given to the statement.’”
People v. Hayden: Hearsay Issue Related to Admission of Victim
Id. at ¶21 (bracketed words in the court’s opinion). On appeal, Statements Where Offenses Were Improperly Not Severed
both the defendant and the State agreed that the instruction In People v. Hayden, 2018 IL App (4th) 160013, a jury found
was improper and that IPI Criminal 4th No. 3.14 should have the defendant guilty of two counts of predatory criminal sexual
been given. As modified to apply to the facts of the case, that assault of a child based on counts that alleged separate offenses
instruction would have provided: at different times against two different young girls. Both the
“Evidence has been received that the defendant majority panel and the dissenting judge agreed that the trial
has been involved in an offense other than those court erred in not granting the defendant’s motion to sever the
charged in the indictment. This evidence has been two cases based on the misjoinder of charges. The majority and
received on the issue of the defendant’s conscious- the dissent disagreed, however, on whether the failure to sever
ness of guilt and may be considered by you only the charges resulted in prejudice to the defendant.
for that limited purpose. It is for you to determine The majority held that the failure to grant a severance
whether the defendant was involved in that offense constituted reversible error because each victim’s allegations
and, if so, what weight should be given to this were allowed to be corroborated by hearsay statements made
evidence on the issue of consciousness of guilt.” about each offense by each victim—statements admitted under
Reasoning that the instruction given to the jury was mis- section 115-10 of the Code of Criminal Procedure of 1963.
leading, the majority of the appellate court panel held that The majority acknowledged that section 115-7.3 of the Code
the trial court’s failure to provide the appropriate limiting allows evidence of similar offenses as propensity evidence,
instruction related to “consciousness of guilt,” permitted the but reasoned that section 115-10, which allows corroborating
jurors to consider the statement of the defendant as evidence of hearsay evidence to bolster the testimony of the victim of an
propensity to commit crimes. Because the defendant had not offense, does not allow such hearsay evidence to bolster the
properly preserved the issue for appeal, the majority applied testimony of a propensity witness. Because such hearsay evi-
plain error review and concluded that the second prong of the dence by both victims was allowed to be admitted in this case,
plain error doctrine “denied the defendant a substantial right the majority held the defendant was prejudiced and reversed
and undermined the integrity of the judicial process.” Id. at the convictions and remanded the case for further proceedings.
¶ 30. It therefore reversed the defendant’s convictions and The lengthy dissent disagreed with the majority’s “restrictive
remanded the case to the circuit court. interpretation” of section 115-10, and would have found that,
The dissenting justice agreed that the instruction given the since the defendant suffered no prejudice, the denial of the
jury was erroneous and that a modified IPI 3.14 instruction defendant’s motion for severance constituted harmless error.
should have been given. But it contended that the defendant The takeaway from Hayden, in the absence of a different
“cannot meet either prong of the plain-error test, since the interpretation of section 115-10 or an amendment of that
evidence against him was not closely balanced and the error statute by the legislature, is that joinder of separate offenses is
not proper on the basis that section 115-10 hearsay principles (5) A statute that provides for evidence of the com-
apply for both joined and severed charges. mission of a crime (See People v. Murray, 2019
IL 123389, holding that section 10 of the Illinois
Principles Related to the Admission of Other-Crime Evidence
under IRE 404(b) and under Other Statutes Streetgang Terrorism Omnibus Prevention Act (740
Note that, in criminal cases, because of the combination ILCS 147/10) requires the State to provide prima
of common law and statutory provisions, a review solely of facie evidence to prove a street gang’s identity,
the language of IRE 404(b) does not fully disclose that there which includes evidence of “2 or more gang-re-
are circumstances that allow (and sometimes mandate) proof of lated criminal offenses committed in whole or
other crimes. The following evidence is specifically admissible in part within this State” and proof that “at least
(a) under the rule (bolstered by common law), or (b) separately one offense involved the solicitation to commit,
admissible pursuant to the provisions of various statutes: attempt to commit, or commission of any offense
(1) As the rule makes clear (and as confirmed defined as a felony or forcible felony under the
by the quote from the Dabbs decision provided Criminal Code of 1961 or the Criminal Code of
supra), other-crimes evidence that is not presented 2012”).
to prove propensity, such as evidence presented Application of Ordinary Principles of Relevancy
“for other [non-character] purposes, such as proof In addition to what is stated in items (1) to (5) above, there is
of motive, opportunity, intent, preparation, plan, a line of cases that allow admissibility of other crimes evidence
knowledge, identity, or absence of mistake or under ordinary relevancy principles, without invoking the
accident,” is admissible. provisions of a rule such as IRE 404(b). Some of these cases
(2) Statutes, such as sections 115-7.3 and 115-7.4 distinguish between whether the evidence of the prior offense
of the Code of Criminal Procedure of 1963, allow is extrinsic or intrinsic to the charged offense. If the evidence of
admissibility of specific instances of conduct to a prior offense is deemed to be extrinsic to the offense that is
prove propensity. the subject of the trial, it may not be admitted to demonstrate
(3) A statute, such as section 115-20 of the Code of the defendant’s propensity to commit the charged offense, but
Criminal Procedure of 1963, allows admissibility it may be admitted if it is relevant to establish some other mate-
of evidence of specified prior convictions in pros- rial question, such as the common-law exceptions allowed
ecutions for specified offenses to prove propensity. under IRE 404(b). If, however, the evidence of a prior offense
(4) Statutes that require proof of a prior conviction involves intrinsic acts (i.e., evidence concerning a necessary
for specified offenses as an element for proving a preliminary to the offense that is the subject of the trial or a part
higher class of offense require that the conviction of the course of conduct leading up to the offense charged—
be disclosed to the trier of fact. (See, e.g., People frequently referred to as “part of a continuing narrative”—then
v. Zimmerman, 239 Ill. 2d 491 (2010) (evidence of the evidence is admissible under ordinary relevancy principles.
a prior juvenile adjudication for an act that would Decisions on Ordinary Principles of Relevancy
have been a felony if committed by an adult was Examples of a supreme court case and several appellate
necessary to prove the element in prosecution for court cases that address ordinary relevancy principles include:
the offense of aggravated use of a firearm); People • People v. Adkins, 239 Ill. 2d 1 (2010) (explaining
v. Davis, 405 Ill. App. 3d 585 (2010) (evidence of derivation of the “continuing-narrative exception,”
a prior conviction for one of the offenses specified quoting People v. Marose, 10 Ill. 2d 340, 343
by statute necessary to prove element in prosecu- (1957) that evidence of other-crime “acts are all
tion for offense of armed habitual criminal); a part of the continuing narrative which concern
the circumstances attending the entire transaction • People v. Morales, 2011 IL App (1st) 101911
and they do not concern separate, distinct and (evidence of persons being beaten in a factory
disconnected crimes,” and holding that evidence parking lot by codefendants of the defendant,
of the defendant’s commission of a burglary in the 19 days before the murder and robbery offenses
same building in which he burglarized another that were the subject of the case on trial and that
apartment, where he killed a woman, constituted occurred in the same parking lot, was probative
a continuing narrative of the charged murder); of the defendant’s involvement in the offenses
• People v. Manuel, 294 Ill. App. 3d 113 (1997) on trial, gave rise to a reasonable inference that
(evidence of prior drug sales by the defendant to the two events were connected, allowed the
the same police informant involved in the sale trial court discretion to conclude that the earlier
of drugs in the case on trial did not constitute offenses were a precursor to the offenses on trial,
other-crimes evidence unrelated to the charged and provided an explanation of an aspect of the
offense, because the previous drug sales were crime not otherwise understandable—whether or
precursors to the offense that was the subject of not the defendant had been present for the earlier
the trial and provided context); offenses);
• People v. Morris, 2013 IL App (1st) 111251, • People v. Feliciano, 2020 IL App (1st) 171142
¶¶ 109-113 (citing Manuel in holding that defen- (where the 94-year-old victim was discovered
dant’s earlier threats against two other men were violently beaten and identified defendant as the
relevant in his prosecution for murdering the vic- person who beat him, relying on the supreme
tim because the threats constituted a “continuing court’s holding in People v. Illgen, 145 Ill. 2d 353
course of conduct” that led to the victim’s murder, (1991), in holding that the trial court properly
and demonstrated the “defendant’s increased agi- admitted testimony of a witness who earlier saw
tation and escalating hostility, the focus of which bruises on the victim and was told by the victim
was [the victim’s] refusal of defendant’s demand to that defendant “had been beating him and taking
leave the house”); his money” (id. ¶ 113), as well as the testimony of
• People v. Rutledge, 409 Ill. App. 3d 22 (2011) the woman’s husband who confronted defendant
(evidence of the intoxicated defendant’s striking about what the victim had said, which defendant
a woman who refused his sexual advances while did not deny, that evidence having served to dis-
seated in a parked car, before he struck an off-duty pute evidence presented by defendant).
police officer to whom the woman ran, was “inex- In People v. Rogers, 2014 IL App (4th) 121088, the
tricably intertwined” with the offense against the defendant was convicted of aggravated battery based on his
officer, for it showed that the defendant was drunk punching a 15-year-old boy and breaking his nose. During the
and angry and thus tended to explain the events jury trial, the State presented evidence that, after the offense,
leading to the altercation with the officer); the defendant placed the victim’s hand in a vice, threatening to
• People v. Hale, 2012 IL App (1st) 103537 (shooting cut off his arm, and threatened to kill the victim and a 14-year-
of a woman shortly before a shooting that resulted old witness. In approving the admission of this other-crimes
in death constituted part of a continuing narrative evidence, the appellate court reasoned that the evidence was
that justified admission of the earlier offense in “admitted to show why the boys were afraid of defendant and
the prosecution of the later first-degree murder did not report the incident” and “[d]efendant’s threat to kill the
offense); boys was an attempt to intimidate witnesses and avoid police
detection. Such conduct indicates consciousness of guilt. See member of the defendant, had fired shots at a member of a rival
People v. Gamboney, 402 Ill. 74, 80, 83 N.E.2d 321, 325 (1948) gang who rode a scooter through his gang’s territory. Donegan
(an attempt to suppress evidence or obstruct an investigation is in turn was struck by a car driven by another rival gang member
relevant as evincing consciousness of guilt).” Rogers, at ¶21. who had followed the driver of the scooter. The defendant was
People v. Carter, 2016 IL App (3d) 140196, does not refer to not involved in these incidents, but the evidence summarized
IRE 404(b), but is noteworthy for the divergent views expressed above was presented to the jury, as well as evidence that the
by the three justices concerning evidence of the other-crime next day Donegan and the defendant, seeking revenge, drove
of attempted escape—evidence admitted in the defendant’s through the rival gang’s territory, and Donegan killed a member
prosecution for the offense of aggravated battery with a firearm. of the rival gang in a drive-by shooting. On appeal from the
In affirming the conviction, the authoring justice premised his defendant’s conviction for first degree murder, the appellate
approval of the admission of the evidence of the defendant’s court reversed the conviction based on its conclusion that
plans to escape from jail while awaiting trial on the longstand- evidence of the “scooter shooting,” in which the defendant was
ing proposition of Illinois law that evidence of the crime of a non-participant, was improperly admitted as “other crime”
attempted escape is admissible for the purpose of showing a evidence, because there was no proof that the defendant was
defendant’s consciousness of guilt. Carter, at ¶ 32. The special involved in or participated in that offense.
concurring justice agreed with that result based on the strength On further review, the Illinois Supreme Court reasoned
of precedence, but expressed grave reservations about the logic that, where an uncharged crime or bad act is not committed
and inconsistencies connected with such evidence. Finally, the by the defendant, there is no danger that the jury will convict
dissenting justice contended that “the excessive other-crimes the defendant because it believes he or she has a propensity to
evidence constitutes reversible error arising out of a trial within commit crimes. The court held that, because the defendant was
a trial.” Id. at ¶63. not involved in the scooter shooting incident, evidence con-
For examples of decisions where “continuing narrative” was cerning that incident was indeed not “other crime” evidence
rejected as a basis for the admission of other-crime evidence, under IRE 404(b), that there thus was no need to show that the
see People v, Jacobs, 2016 IL App (1st) 133881 (holding that, defendant was a participant in the earlier offense for that evi-
where defendant was charged with possession of a stolen car dence to be admitted, as is the case when Rule 404(b) applies,
and not charged with stealing the car or burglarizing the home but that the evidence of the scooter shooting was admissible
from which the car and jewelry were stolen, another person as relevant to show the defendant’s motive for the drive-by
having been charged with those offenses, those offenses were shooting that resulted in the death of the rival gang member.
distinct and undertaken for different reasons at a different place The court summarized its holding as follows:
at a separate time, and evidence that tended to show that defen- “It is evident, therefore, that the concerns under-
dant had committed them therefore was improperly admitted lying the admission of other-crimes evidence are
as evidence of a continuing narrative); and People v. McGee, not present when the uncharged crime or bad act
2015 IL App (1st) 122000 (holding that altercation between was not committed by the defendant. In such a
defendant and victim’s husband did not constitute a continuing case, there is no danger that the jury will convict
narrative of defendant’s alleged stalking offense toward the the defendant because it believes he or she has a
victim “as the altercation was a ‘distinct’ event ‘undertaken for propensity to commit crimes. Thus, the threshold
different reasons’ at a different time” (id. at ¶30)). requirement to show that the defendant, and not
People v. Pikes: Explication of Ordinary Principles of Relevancy someone else, committed the crime does not
In People v. Pikes, 2013 IL 115171, the trial court admitted apply. The evidence was clear that defendant was
evidence that one Donegan, a codefendant and fellow gang not involved in the scooter shooting. Thus, the
appellate court erred in holding that the evidence ment of the defendant constituting “other-crimes” evidence
of that shooting was inadmissible on the ground under IRE 404(b)—i.e., crimes that the defendant committed
that the State did not show that defendant commit- or participated in, and which therefore raise questions about
ted or participated in that shooting. We therefore propensity. Heavily relying on Pikes and citing other appellate
conclude that the evidence of the scooter shooting court decisions, the court reasoned instead that the evidence of
was not other-crimes evidence and the appellate an earlier dispute between two rap groups about a microphone
court erred in analyzing it as such.” People v. and evidence of an earlier altercation, neither directly involv-
Pikes, 2013 IL 115171, ¶16. ing the defendant, were admissible as a continuing narrative
Regarding the admissibility of the “scooter shooting,” the that helped explain the events involved in the charged offenses.
supreme court commented on the line of cases summarized People v. Clark, 2018 IL App (2d) 150608, illustrates Pikes’
above and, in reversing the judgment of the appellate court on application of ordinary principles of relevance. In Clark, the
the basis of its conclusion that the evidence was relevant and sole issue on appeal was whether a real gun was used in the
thus admissible, said this: offense that resulted in the charge of armed robbery with a
“Rather than sow confusion by analyzing the firearm. The defendant’s co-offender, who had held the gun
scooter shooting evidence under terms such during the robbery and had pleaded guilty, testified as a State’s
as ‘extrinsic’ or ‘intrinsic’ or as ‘inextricably witness that the gun he held was real. The State then introduced
intertwined’ or as a ‘continuing narrative,’ we evidence of the co-offender’s conviction for armed robbery
conclude that the admissibility of evidence of the committed with a real gun before the date of the offense on
scooter shooting incident in this case should be trial. In response to the defendant’s challenge to the admission
judged under ordinary principles of relevance.” Id. of that conviction, the appellate court first reasoned that the
at ¶20. prior conviction of the co-offender was not to be analyzed as
Appellate Court Decisions Applying Pikes “other crimes” evidence under IRE 404(b), because he was
The appellate court’s decision in People v. Talbert, 2018 IL not the defendant at trial. Citing Pikes, the court held that
App (1st) 160157, applied Pikes and considerations of rele- “its admissibility is to be judged under ordinary principles of
vancy in upholding the admission of prior bad acts directed at relevance.” Clark, at ¶ 25. The court then noted that neither
the victims by a person who was not the defendant, but who the trial court nor the State had introduced the armed-robbery
was linked by evidence as directing the defendant to commit conviction to bolster the co-offender’s credibility; rather, “the
the acts that led to first degree murder, attempted murder, and conviction was limited to the issue of whether the gun was
the aggravated discharge of a firearm. Applying considerations real.” Id. at ¶29. Concluding that “the prejudicial impact of the
of relevancy, the court held that it was unnecessary to establish conviction did not substantially outweigh its probative value,”
the defendant’s knowledge of the bad acts of his cousin (drug the appellate court held that “the trial court did not abuse its
sales, an arson threat, and a subsequent attempt arson), and discretion in admitting the armed-robbery conviction to show
that, though motive is not an element of the offense of murder, that the gun used in this case was real.” Id. at ¶31.
the admitted evidence was relevant to establish the motive Seventh Circuit’s Acceptance of Mere Principles of Relevancy
alleged by the State. Moreover, the court held, “[t]he evidence It should be noted that the Seventh Circuit Court of Appeals
had great probative value given that it explained an otherwise is in accord with the supreme court’s approach to the type of
inexplicable shooting.” Talbert, at ¶45. evidence the court found admissible in Pikes, and with its quotes
In People v. Daniels, 2016 IL App (4th) 140131, the appel- provided above from that case. In United States v. Gorman,
late court first rejected the arguments of the parties that were 613 F.3d 711 (7th Cir. 2010), the Seventh Circuit questioned
based on the evidence of acts performed without the involve- application of the “inextricably intertwined” doctrine, noting
that the circuit “has recently cast doubt on the continuing via- intrinsic acts are ‘a necessary preliminary to the
bility of the inextricable intertwinement doctrine, finding that current offense,’ and where ‘the prior crime is part
‘[b]ecause almost all evidence admitted under this doctrine is of the ‘course of conduct’ leading up to the crime
also admissible under Rule 404(b), there is often ‘no need to charged.’ People v. Morales, 2012 IL App (1st)
spread the fog of ‘inextricably intertwined’ over [it].’ Conner, 101911, ¶¶24-25 (quoting People v. Manuel, 294
583 F.3d at 1019 (quoting United States v. Taylor, 522 F.3d 731, Ill. App. 3d 113, 124 (1997)). Uncharged crimes
734 (7th Cir. 2008), cert. denied, [555] U.S. [878], 129 S. Ct. admitted as a continuing narrative ‘do not consti-
190, 172 L. Ed. 2d 135 (2008)).” Gorman, 613 F.3d at 718-19. tute separate, distinct, and disconnected crimes.’
Indeed, in its subsequent decision in United States v. Gomez, Pikes, 2013 IL 115171, ¶ 20. Conversely, distinct
763 F.3d 845 (7th Cir. 2014) the Seventh Circuit, sitting en banc, crimes made for different reasons at different times
abandoned its prior approach to analyzing other-act evidence and places will not be admitted as a continuing
in favor of applying mere relevancy principles. For a discussion narrative. Adkins, 239 Ill. 2d at 33.” Hensley, at
of the Gomez decision, see the Author’s Commentary on Fed. ¶51.
R. Evid. 404(b), supra. Note that the decision in People v. Lopez, 2014 IL App (1st)
Pikes’s Application to Offenses Participated in by Defendant 102938-B (appeal denied, No. 118017 (9/24/14)), contrasts
It should further be noted that, though Pikes addressed a with the cases discussed above, particularly the appellate
situation where the defendant was not a participant in the court decision in People v. Morales, 2012 IL App (1st) 101911,
earlier offense, its message that admission of evidence of an and the supreme court decision in Pikes. During trial in the
earlier offense “should be judged under ordinary principles of Lopez case, as in the Morales case which arose out of the same
relevance,” applies equally to an earlier offense in which the events, the State had been permitted to present evidence of
defendant was an active participant. An illustration of that is the beatings that occurred in a factory parking lot less than three
post-Pikes case of People v. Hensley, 2014 IL App (1st) 120802, weeks before the beating in the same parking lot that led to the
where the appellate court approved the admission of evidence killing of the victim and the murder charge. At both the earlier
that, shortly before the first-degree murder and other offenses offenses and the offense that led to the murder charge, code-
for which he was tried, the defendant fired shots and pointed fendants of Morales and Lopez were involved, but, although
a revolver at and threatened others—on the basis that the there was evidence that Lopez was near the parking lot before
defendant’s prior activity constituted a “continuing narrative” and after the prior offenses, there was no evidence that he
concerning the “course of conduct” that led to the murder and participated in those offenses. There was evidence, however,
other offenses that followed. The Hensley court summarized that he was present for and participated with Morales and other
the authority that led to its holding as follows: codefendants in the events that resulted in the murder.
“Our supreme court ‘has recognized that evidence In its original review of the case, the Lopez court reversed
of other crimes may be admitted if it is part of the defendant’s conviction for first degree murder based on its
the ‘continuing narrative’ of the charged crime.’ rejection of Morales and its reliance on the Pikes appellate court
People v. Pikes, 2013 IL 115171, ¶ 20 (quoting decision. Thereafter, the supreme court directed the appellate
People v. Adkins, 239 Ill. 2d 1, 33 (2010)). In such court to vacate its judgment and reconsider its decision in
cases, ordinary relevancy principles apply and light of the supreme court’s Pikes decision. On remand from
the rule related to other crimes is not implicated. the supreme court, the Lopez court again reversed the murder
[People v.] Rutledge, 409 Ill. App. 3d [22] at 25 conviction based upon its holding that evidence of the earlier
[(2011)]. This court has described evidence prop- offenses—the “other crime” evidence—had been admitted
erly admitted as a continuing narrative as where improperly. The court distinguished Morales, where there was
some evidence that Morales was present for the earlier offenses by the defendant differed, the prior offense was relevant, not
(evidence provided by a witness who later in his testimony for propensity purposes, but to prove the defendant’s intent to
stated that he was unsure whether Morales was present), even deliver in this case. See Watkins, at ¶¶ 45-47, for its citation to
though the Morales court had held that the evidence of the prior a number of decisions justifying its approval of the admission of
offenses was admissible whether or not Morales was present or the prior offense for the purpose of proving intent.
participated in those offenses. And it distinguished the supreme For an example of a proper application of proof of oth-
court’s Pikes decision based on the fact that, in that case, there er-crime evidence to prove guilt for the offense that was the
was evidence that the defendant and the codefendant were subject of trial, see People v. Simmons, 2016 IL App (1st)
seeking retaliation for the earlier event, whereas in the case at 131300 (holding that evidence that defendant shot a woman
bar, the court held, there was no relevance established between (other than the deceased victim in the case at bar) in the
the earlier offenses and the offense for which Lopez was tried. hand more than a month before the murder of the victim was
properly admitted into evidence, because the bullet in the
Examples of the Application of the Rule’s Common-Law Exceptions
woman’s hand matched the bullet in the brain of the deceased
In People v. Brown-Engel, 2018 IL App (3d) 160368,
victim, thus serving to identify the defendant as the offender
an appeal from a bench-trial conviction for the offense of
in the murder case; proof beyond a reasonable doubt was not
attempted aggravated criminal sexual abuse, the appellate
required to prove the earlier offense, and deficiencies in the
court concluded that, because the charged offense was not an
woman’s testimony went to the weight of her testimony, not its
enumerated offense in section 115-7.3 of the Code of Criminal
admissibility).
Procedure and because that offense is distinct from the offense
For a case affirming a conviction for first degree murder
formerly referred to as indecent liberties with a child, it was
and approving the admission of prior acts of domestic violence
improper to admit evidence of prior bad acts involving the
based solely on the basis of common-law principles (i.e., not to
defendant with the 13-year-old female victim for propensity
show propensity, but for the purpose of proving motive, intent,
purposes. But noting that “evidence admissible for one pur-
identity, lack of mistake, or modus operandi), see People v.
pose is not affected by inadmissibility for another” (id. at ¶20),
Null, 2013 IL App (2d) 110189. See also People v. Jaynes, 2014
the court held that “the evidence was admissible to establish
IL App (5th) 120048, ¶¶ 54-57 (in prosecution for possession
defendant’s intent and absence of an innocent state of mind
of child pornography, evidence of stories of underage children
pursuant to Illinois Rule of Evidence 404.” Id. In addition to
having sex, placed on the defendant’s computer hard drive
providing the rationale for the admission of such evidence, the
after his wife and stepchildren had access to the computer, was
court held that the other bad acts testimony of the victim “fits
admissible to lessen the probability that they had placed the
squarely within the recognized exceptions [of Rule 404(b)],
pornographic images on his computer or on CDs placed in his
which allow such evidence to show defendant’s intent or to
house, and because it was relevant to show lack of mistake,
show that the act in question was not performed inadvertently,
lack of accident, and intent); People v. Sims, 2019 IL App (3d)
accidentally, involuntarily, or without guilty knowledge.” Id. at
170417 (with one justice dissenting, approving evidence of the
¶22.
defendant’s earlier possession of a .45-caliber handgun in the
In People v. Larke, 2018 IL App (3d) 160253, the appellate
prosecution for the possession of a .38-caliber handgun by a
court held that it was proper, in this jury trial involving posses-
felon, where the latter handgun was found in the defendant’s
sion of cocaine with intent to deliver, for the trial court to admit
car and not on his person and the prior possession was admitted
evidence of the defendant’ prior conviction for possession of
for the limited purpose of the defendant’s intent, knowledge,
cannabis with intent to deliver. In reliance on the appellate
lack of mistake, and lack of accident).
court’s prior decision in People v. Watkins, 2015 IL App (3d)
120882, the court held that, though the substances possessed
In People v. Mitchem, 2019 IL App (1st) 162257, in a pros- In affirming the admission of the gun evidence, the appel-
ecution for aggravated kidnapping and aggravated vehicular late court noted it “confront[ed] a split in authority about the
hijacking, the appellate court held that evidence of the prior admissibility of other-crimes evidence to help prove intent
successful kidnapping for ransom, three months earlier, by the where intent is not expressly at issue.” Id. at ¶59.
defendant and his codefendant against the same victim (previ- The court noted two decisions where the admission of
ously undisclosed because the victim was a drug dealer) had other-crimes evidence to prove intent had been held to be
been properly admitted for the purpose of establishing their improper: the pre-codification decision in People v. Knight,
motive for kidnapping the victim once again. 309 Ill. App. 3d 224 (2d Dist. 1999) (in this conviction for
In People v. Cerda, 2021 IL App (1st) 171433, ¶¶ 95-123, a domestic battery, reasoning that the “defendant’s state of mind
prosecution for a the first-degree murder of three men involved was not in controversy” (id. at 227), because he had testified
in the purchase and sale of drugs, where extensive evidence of that he had not beaten the victim, and therefore holding that
other crimes concerning the defendant’s involvement in drug the evidence of the defendant’s threat six weeks after the beat-
offenses was admitted, the appellate court provided a com- ing was improperly admitted), and People v. Clark, 2015 IL App
prehensive analysis in holding that the evidence was properly (1st) 131678 (although finding harmless error because of the
admitted because “the other-crimes evidence did not transgress overwhelming evidence of guilt, holding it was not probative of
the general prohibition against the admission of other-crimes either intent or identity for the trial court to admit evidence that
evidence where it fell within the exceptions for conspiracy, the defendant, who was charged with theft of a bicycle, had
common design or plan, motive, identity, intent, and course of stolen a bicycle in the same area four years before). In support
the police investigation.” Id. at ¶122. of the propriety for admitting evidence to prove intent, Davis
cited People v. Cavazos, 2015 IL App (2d) 120444 (rejecting
Split in the Appellate Court about the Admissibility of Other-
Crimes Evidence Admitted to Prove Intent Where Intent Is Not defendant’s contention that motive and intent were not in issue,
Expressly Put at Issue in holding that proof of motive and intent justified admission of
In People v. Davis, 2019 IL App (1st) 160408, a prosecu- defendant’s same-day attempt to kill a rival gang member after
tion for the offense of possession of more than 900 grams of his involvement in a separate successful killing of a rival gang
cocaine, police recovered a 989-gram brick of cocaine and member).
three handguns in the secret compartment of a car in which In rejecting the holdings in Knight and Clark and agreeing
the defendant was a passenger. The trial court denied the with the holding in Cazavos, the Davis court relied heavily on
defendant’s motion to suppress the evidence and additionally the supreme court’s decision in People v. Heard, 187 Ill. 2d
granted the State’s motion to admit the evidence concerning 36 (1999). In that case, defendant was convicted by a jury of
the three handguns. On appeal, the defendant argued that the murder by gunfire of three persons, including defendant’s
the evidence of the handguns should not have been admitted former girlfriend and her current boyfriend. During trial, the
because “his intent had never been at issue, rendering the court admitted the State’s evidence that defendant had stolen
admission of the gun evidence as cumulative and prejudicial.” his former girlfriend’s clothes and that he beat her after offering
Id. at ¶57. Reasoning in part that “the other-crimes evidence— to return the clothes. The court also admitted evidence that on
possession of firearms—relates to the issue of Davis’s intent to another occasion, while his former girlfriend and her current
distribute the cocaine” (id. at ¶64), and holding that “the State boyfriend were in a rental car, defendant twice rammed the
can introduce admissible other-crime evidence to prove intent rear of the car with his truck before they drove to a police
even where the defendant does not put intent directly in issue” station to file a report. Evidence also was admitted that on
(id. at ¶63), the appellate court disagreed. another occasion defendant rammed the car occupied by his
ex-girlfriend and her current boyfriend and, when the current
boyfriend exited the car to examine the damage, defendant court holding and should be followed, absent another clarify-
fired shots at him. ing opinion from the supreme court.
On direct appeal to the supreme court in Heard a death
Decisions on Admission of Evidence of Numerous Other-Crime
penalty case, defendant contended that the other-crimes Offenses
evidence should not have been admitted because motive and In a number of cases, defendants have contended on appeal
intent were not at issue in this case for the killer “intended to that the sheer number of other-crime offenses admitted under
kill the victims, so intent was not genuinely in issue.” Heard, section 115-7.3 in sexual offense prosecutions was excessive
at 60. He also contended that “because he denied involvement and that the aggregate prejudicial effect outweighed the proba-
in the murders, the identity of the perpetrator, not the motive tive value of such evidence. An early example of a case, where
and intent of the perpetrator, was the issue in this case.” Id. The that effort succeeded, is People v. Cardamone, 381 Ill. App. 3d
supreme court was not persuaded. It held that “the prosecution 462 (2008), where, in reversing the defendant’s convictions for
had to prove that defendant was the shooter. The prosecution nine counts of aggravated criminal sexual abuse against seven
introduced the other-crimes evidence to prove defendant’s girls, in a prosecution where there had been 14 complainants
motive and intent to kill the victims, thus providing further proof and an additional witness who also testified to sexual abuse,
of defendant’s identity as the shooter.” Id. at 59 (emphasis in the appellate court estimated that there had been testimony
original). The supreme court thus held that “the other-crimes related to 158 to 257 uncharged incidents.
evidence was admissible to prove defendant’s motive and In People v. Perez, 2012 IL App (2d) 100865, however, in
intent to commit the murders. The other-crimes evidence referring to Cardamone as an “extreme case” and to the defer-
revealed defendant’s continuing hostility and animosity toward ence given to the trial court’s rulings on admission of evidence,
[his former girlfriend and her current boyfriend].” Id. the appellate court affirmed the defendant’s conviction for
In Davis, the appellate court concluded that it “deem[ed] aggravated criminal sexual abuse, in a case where numerous
the Cavazos court as the better reading of Heard: evidence uncharged offenses testified to by the complainant and another
of other crimes can be used to prove intent, even if intent is young girl had been admitted into evidence. The court noted
not put expressly at issue, because the burden remains on the that “any undue prejudice of ‘more thorough other-crimes
prosecution to prove intent beyond a reasonable doubt regard- evidence’ admitted under section 115-7.3 will be ‘less’ unduly
less of whether the defendant disputes it.” Davis, at ¶ 62. The prejudicial than in a common-law other-crimes case.” Perez,
court reasoned that if it were to embrace the reasoning of the at ¶ 49. Where the other-crime-offenses are offered by the
other cases, “a defendant could deprive the State of its right victim of charged offenses as was the case in Perez, the court
to introduce relevant, competent evidence simply by staying also stressed the need to introduce other-crimes evidence for
silent about certain elements of the offense for which he or she the purpose of furnishing necessary context for the charged
has been charged.” Id. at ¶63. offenses. Id. at ¶¶50-51.
The takeaway from the above discussion: The split of author- In People v. Salem, 2016 IL App (3d) 120390, the appellate
ity described in this commentary exists only in the First and court held that “the trial court abused its discretion by allowing
Second Districts of the appellate court—Davis and Clark in the the State to introduce unlimited other crimes evidence.” Salem,
First District, and Cavazos and Knight in the Second District. at ¶ 59. In that case, involving a prosecution for four separate
Under normal circumstances, that means that trial judges in counts of unlawful possession of open vehicle titles, “the jury
those districts may choose the holding in the decision they received 17 exhibits to examine and consider concerning
deem to be appropriate. A holding of the supreme court, such the uncharged crimes related to defendant’s alleged knowing
as that in Heard, however, always trumps a contrary appellate possession of multiple stolen vehicles parked in his driveway.”
Id. at ¶59 (emphasis in original).
Propriety of Admission of Evidence Alleged to Contain Too Many cross-examination, even if this elicits evidence that would not
or Unnecessary Details Related to Other-Crime Offenses
be proper or admissible.” Hinthorn, at ¶ 71. In Hinthorn, the
In People v. Bates, 2018 IL App (4th) 160255, ¶¶ 78-90,
appellate court also addressed the doctrine of completeness,
citing IRE 404(b) and section 115-7.3 of the Code of Criminal
which it held was inapplicable in this case.
Procedure, as well as principles provided by the Second
District pre-codification decision in People v. Walston, 386 Davis and Rosado: Need to Disclose to Jury Defendant’s
Acquittal for Crimes Admissible under IRE 404(b)
Ill. App. 3d 598 (2008), the appellate court observed that
In People v. Ward, 2011 IL 108690, the supreme court held
the State had introduced “comprehensive evidence” of the
that the trial court’s ruling barring the evidence of the jury
defendant’s alleged attack on a victim of an offense similar
acquittal of the defendant for a prior sex offense, admitted
to the aggravated criminal sexual offense in the case at bar.
as propensity evidence under section 115-7.3 of the Code
Reasoning that such evidence is highly probative because the
of Criminal Procedure of 1963 (725 ILCS 5/115-7.3), was
jury is able to use the evidence for propensity purposes as
improper. And in People v. Rosado, 2017 IL App (1st) 143741,
allowed by section 115-7.3, the court determined that, though
the appellate court held that the trial court abused its discretion
such evidence is harmful to a defendant’s case, it is not unduly
in allowing the admission of a subsequent offense of deliv-
prejudicial. The court rejected the defendant’s argument that
ery of a controlled substance, because such evidence could
the State presented the other-crime case with “unnecessary
not bolster identification of the defendant as the person who
detail” and held that the trial court’s balancing determination
delivered a controlled substance in the earlier charged offense.
under IRE 403 was not an abuse of discretion. Finally, the court
As relevant here, however, the court invoked Ward in holding
rejected the defendant’s argument that an improper “mini-trial”
that the trial court erred in not allowing evidence of the earlier
had occurred, reasoning that it was necessary to establish the
acquittal of the offense that had been admitted into evidence
defendant’s involvement in the attack of the other-crime victim.
for the purpose of establishing identity.
Opening the Door to Otherwise Inadmissible Other-Crime Application in Civil Cases
Evidence
It is important to note that the general prohibition against
People v. Hinthorn, 2019 IL App (4th) 160818, ¶¶ 68-86,
admitting character evidence for the purpose of proving
demonstrates that, even where other-crime evidence is not
propensity under both IRE 404(a) and IRE 404(b), although
deemed admissible, such evidence may be made admissible
generally applied in criminal cases, applies also in civil cases.
based on other legal theories. In that case, involving offenses
See, for example, Powell v. Dean Foods, Co., 2013 IL App (1st)
of predatory criminal sexual assault and criminal sexual assault
082513-B, which, citing other cases, reversed and remanded
on the defendant’s daughter, evidence of the defendant’s prior
judgments for the plaintiffs, where evidence of the defen-
rapes of his wife had been ruled inadmissible. Nevertheless, the
dant-truck driver’s prior acts of speeding, a prior violation of
appellate court affirmed the admission of that evidence based
federal logging regulations, and a prior fine were held to have
on curative admissibility, which provides that “if the defendant
been improperly admitted and to have served “no purpose
on cross-examination opens the door to a particular subject,
other than to allow the inference that defendants acted badly at
the State on redirect examination may question the witness to
the time of the accident because they had done so prior to the
clarify or explain the subject brought out during, or remove
accident.” Powell, at ¶102.
or correct any unfavorable inferences left by, the defendant’s
Author’s Commentary on Ill. R. Evid. 404(c)
IRE 404(c) places on the prosecution the responsibility for subdivisions in each of the statutes in the Criminal Code of
pretrial disclosure of evidence of other crimes, wrongs, or acts Procedure specified in IRE 404(b)—specifically, section 115-
it intends to admit at trial. It is based on the requirements of 7.3(d), section 115-7.4(c), and section 115-20(d).
There is no FRE 404(c). But effective December 1, 2020, an and that he was thus prevented from adequately opposing its
amendment to the federal rules ended the previous requirement admission. Specifically, the defendant asserted unfair surprise
that a defendant in a criminal case had the burden of requesting by the amount of detail concerning at least one of the other
the prosecution to provide reasonable notice of the prosecu- crimes testified to by the victim, and that he had not objected
tion’s intent to admit evidence of the type of crimes, wrongs, because of the State’s inadequate factual summary. After quot-
or other acts permitted under FRE 404(b)(2). The amendment, ing both IRE 404(c) and section 115-7.4(c) (which, as indicated
which created FRE 404(b)(3)(A), (B), and (C), places the burden above, is one of the statutes upon which IRE 404(c) is based),
of notice about its intent to admit those other acts solely on and noting that there was no case in Illinois interpreting the
the prosecution. By virtue of that amendment, FRE 404(b) now term “summary” in the phrase “a summary of the substance
provides a notice requirement on the prosecution that is similar of any testimony” (a phrase found in both the rule and the
to that provided in IRE 404(c). statute), the appellate court reasoned that “a ‘summary’ need
Application of IRE 404(c) not contain all that is required by an offer of proof; a lesser
In People v. Torres, 2015 IL App (1st) 120807, the defendant, amount of detail and particularity suffices.” Torres, at ¶ 53.
who was on trial for multiple offenses that included aggravated Noting that the State’s motion in limine to admit the evidence
criminal sexual assault, contended that in its motion in limine “provided details as to time, place, the victim, and acts that
the State had provided him an inadequate summary of the evi- were committed” by the defendant related to the other crime,
dence of two prior offenses against the victim that it intended the appellate court concluded that the trial court had properly
to present under IRE 404(b). He contended that the trial court admitted the evidence.
was thus prevented from properly analyzing the evidence
Rule 405. Methods of Proving Character Rule 405. Methods of Proving Character
(a) By Reputation or Opinion. When evidence of (a) Reputation or Opinion. In all cases in which
a person’s character or character trait is admissible, it evidence of character or a trait of character of a person
may be proved by testimony about the person’s repu- is admissible, proof may be made by testimony as to
tation or by testimony in the form of an opinion. On reputation, or by testimony in the form of an opinion.
cross-examination of the character witness, the court (b) Specific Instances of Conduct.
may allow an inquiry into relevant specific instances of (1) In cases in which character or a trait of char-
the person’s conduct. acter of a person is an essential element of a charge,
(b) By Specific Instances of Conduct. When a claim, or defense, proof may also be made of specific
person’s character or character trait is an essential ele- instances of that person’s conduct; and
ment of a charge, claim, or defense, the character or (2) In criminal homicide or battery cases when
trait may also be proved by relevant specific instances of the accused raises the theory of self-defense and
the person’s conduct. there is conflicting evidence as to whether the alleged
victim was the aggressor, proof may also be made of
specific instances of the alleged victim’s prior violent
conduct.
defendants from introducing character evidence through opin- Illinois versions of Rule 405(b) allow proof of character or a
ion testimony and instead expressly permitted the practice.” character trait to be proved by specific instances of a person’s
Id. at ¶ 30. Because, however, defendant failed to ask the trial conduct when the person’s character or character trait is an
court to reconsider its ruling after IRE 405(a) became effective essential element of a charge, claim, or defense. Also, the
(id.), the appellate court considered the issue under plain error common-law exceptions for the admission of evidence of other
review standards, rejecting defendant’s argument—even if it crimes, wrongs, or acts in Rule 404(b) are based on conduct,
“assumed the incorrectness of the trial court’s decision.” Id. at not on personality traits or psychological evaluations. Likewise,
¶ 32. The appellate court thus determined that, even if error the exceptions for the prohibition of proof of propensity in IRE
had occurred, it was harmless error. Id. at ¶¶32-34. Thus, after 404(b) are based on evidence of other crimes, wrongs, or acts—
presenting the possibility that the allowance of character evi- based, in short, on “conduct.” Although the relevant federal and
dence by testimony in the form of an opinion under IRE 405(a) Illinois rules prohibit proof of specific acts of conduct to prove
may allow for an expert’s opinion, the appellate court did not character, proof of character under both versions—whether
determine whether an expert’s opinion about a defendant’s based on reputation or on opinion—is based on conduct.
character trait is properly admissible. In sum, each of the exceptions to the general rule prohib-
Although Garner provided no answer for the question it iting character evidence in IRE 404—whether based on com-
raised, it presents the possibility that expert opinion evidence is mon-law or a statute—is related to conduct. Even the exception
contemplated by IRE 405(a), but it cites no authority supporting provided by IRE 404(a)(1) is based on reputation or opinion
or rejecting that principle. In this writer’s opinion, offering such evidence premised on a defendant’s prior conduct. The rules
evidence as “character” evidence is unacceptable for several make no allowance for expert opinion testimony on character
reasons. based on psychological evaluation, for that would result in pro-
First, Garner’s conclusion that the psychologist’s proffered pensity evidence which is permitted only in explicitly limited
testimony about defendant’s personality traits constituted circumstances, none of which includes the allowance of expert
admissible character evidence was erroneous, and thus was an opinion evidence based on a psychological examination.
improper basis for its raising the possibility that such evidence Second, Garner focuses only on IRE 405(a), the rule that
may have been subject to expert opinion testimony under IRE provides the “methods of proving character,” and does not take
405(a). In Michelson v. United States, 335 U.S. 469, 477 (1948), into account IRE 404(a), which generally prohibits evidence of
a ruling that preceded the codification of the Federal Rules of character traits “for the purpose of proving action in conformity
Evidence but fully applies to both the federal and Illinois codifi- therewith on a particular occasion,” i.e., propensity. Garner’s
cations, the United States Supreme Court stated that a character failure to refer to IRE 404(a) is significant for that rule provides
witness “may not testify about defendant’s specific acts or the underlying basis for IRE 405(a)’s allowance of character
courses of conduct or his possession of a particular disposition evidence by reputation or opinion. IRE 404(a) provides that
or of benign mental and moral traits.” As explained below, the such evidence is allowed only “[i]n cases in which evidence
relevant rules on character evidence establish that conduct is of character or a trait of character of a person is admissible.”
the basis for character evidence, and that an expert’s opinion So, if—as IRE 404(a) provides—character evidence is generally
about a person’s psychological traits is not contemplated. inadmissible and if there is no applicable exception to that
A person’s “conduct” forms the basis for proof of character general rule, neither reputation nor opinion about character is
in Rule 405. The second sentence of FRE 405(a) allows a char- admissible.
acter witness to be cross-examined even on “relevant specific IRE 404(a)(1), the rule that allows an accused in a criminal
instances of the person’s conduct.” Although IRE 405(a) has case to offer “a pertinent trait of character,” is based on conduct
not adopted that federal provision, both the federal and the and is invoked generally to admit evidence that a defendant
is peaceful and/or honest and/or law-abiding. Consistent that the defendant’s personality profile showed that he was
with the inextricable relationship of “conduct” to character, subject to manipulation, so his confession to the sexual abuse
together with common law that preceded evidence codifica- of his two young daughters may have been false because of
tion, that rule was intended to allow a defendant in a criminal psychological pressure, manipulation, and suggestions by his
case to present “proof of such previous good character as is wife and mother-in-law. For a discussion of Bergund, see the
inconsistent with the commission of the crime with which he Author’s Commentary on Ill. R. Evid. 702, under the heading
is charged.” People v. Lewis, 25 Ill. 2d 442, 445 (1962). See Expert Opinion on False Confession Based on Personality
also Michelson, 335 U.S. at 479 (“the law gives defendant the Subject to Manipulation.
option to show as a fact that his reputation reflects a life and Third, allowing expert opinion on character—even where
habit incompatible with commission of the offense charged”). genuine character evidence is involved—is inconsistent
But the evidence offered by defendant in Garner had nothing to with IRE 405(a)’s intent, which simply is to reflect that most
do with her “previous good character” or “conduct,” nor with witnesses who offer testimony about character traits based on
her commission of the charged crime. “reputation” frequently offer their own “opinion” about those
Nevertheless, because the State placed in issue motive traits. This is confirmed by the many pre-codification instances
evidence, defendant was entitled to offer responsive evidence. where trial courts struck the reputation testimony of a witness
Defendant was the best witness to provide the relevant evi- who, when asked on cross-examination whether the witness
dence that the phone conversation with her husband had noth- had talked to anyone about a person’s character, answered with
ing to do with her actions, a subject well within her capacity to a firm “no,” thus disavowing the very basis for the admission
explain and one not requiring the helpful testimony of an expert of “reputation” testimony. IRE 405(a)’s allowance of “opinion”
witness. Indeed, defendant provided such responsive evidence. testimony about character does not represent a substantive
As Garner noted, defendant “testified in her own defense, change, except to simply acknowledge that people do not
during which time she testified about her character traits; and, generally talk with others about a person’s character traits.
notably, the trial court’s order did not cut off all other avenues A belief such as “John Doe is a peace-loving man” is rarely
by which defendant could have presented evidence regarding shared. But interactions with a person—about the conduct of
her character.” Garner, at ¶34. that person—result in “opinions” about the character traits of
If expert opinion testimony is deemed proper to counter that person. For that reason, Rule 405(a) now allows not only
motive evidence in a case such as this, it should be admitted on reputation evidence, which is based on what others say about
some other relevant basis, and not as inadmissible “character” the character of a person, but also opinion evidence, which is
evidence under IRE 404 or IRE 405(a). For example, in People based on a witness’s knowledge of the conduct of a person. The
v. Bergund, 2016 IL App (5th) 130119, without any reference rule provides no indication that it contemplates expert opinion
to character evidence, the appellate court held it was error to testimony about character.
prohibit the admission of a clinical psychologist’s testimony
Author’s Commentary on Ill. R. Evid. 405(b)(1)
There is no federal rule designated 405(b)(1), but IRE 405(b) in causes of action where evidence of character or a trait of
(1) is identical to FRE 405(b) before the latter’s amendment character is an essential element of a charge, claim, or defense,
solely for stylistic purposes effective December 1, 2011. The including, as the Committee Comment points out, in those
codified Illinois rule is consistent with Illinois common law, involving negligent hiring, negligent entrustment, and defama-
which permits evidence of specific instances of conduct tion in certain cases.
In People v. Collins, 2013 IL App (2d) 110915, the defen- related to the officer’s ability to conduct the undercover drug
dant invoked IRE 405(b) in contending that the trial court had transaction, nor did it raise an inference that he had anything
erred in barring him from impeaching a police officer with to gain or lose during his testimony. Collins, at ¶ 19. Citing
information contained in the officer’s personnel file about a the rule and its Committee Comment, the appellate court also
specific instance of untruthfulness. In affirming the defendant’s held that the officer’s character “is not an element of a charge,
conviction for delivery of a controlled substance to the police claim or defense,” and therefore such character evidence was
officer, the appellate court reasoned that the evidence was not not admissible under the rule. Id. at ¶20.
Author’s Commentary on Ill. R. Evid. 405(b)(2)
There is no federal rule designated 405(b)(2), nor is there a of such conduct because the victim’s propensity for violence
federal rule that is a counterpart to the Illinois rule. IRE 405(b) tends to support the defendant’s version of the facts.
(2), however, codifies Illinois common law in homicide and In People v. Barnes, 2017 IL App (1st) 143902, based on
battery cases, which allows admission of an alleged victim’s remoteness-in-time considerations, the appellate court held
prior conduct where self defense is alleged and there is con- that the trial court properly refused to admit the victim’s convic-
flicting evidence as to who was the aggressor. See People v. tions for resisting arrest and battery that had occurred 21 years
Lynch, 104 Ill. 2d 194, 200-01 (1984), which allows admission before, and in People v. Martinez, 2019 IL App (2d) 170793,
of an alleged victim’s prior acts of violence in self-defense based on the same considerations, in a prosecution for battery
cases, where there is conflicting evidence as to who was the the appellate court approved the trial court’s refusal to admit
aggressor, where (1) the defendant knows of such conduct the more-than 70-year-old victim’s 55-year-old conviction for
because it affects his perceptions of and reactions to the felony aggravated battery.
victim’s behavior or where (2) the defendant does not know
Rule 406. Habit; Routine Practice Rule 406. Habit; Routine Practice
Evidence of a person’s habit or an organization’s Evidence of the habit of a person or of the routine
routine practice may be admitted to prove that on a practice of an organization, whether corroborated or
particular occasion the person or organization acted not and regardless of the presence of eyewitnesses, is
in accordance with the habit or routine practice. The relevant to prove that the conduct of the person or
court may admit this evidence regardless of whether it is organization on a particular occasion was in conformity
corroborated or whether there was an eyewitness. with the habit or routine practice.
COMMENTARY
§ 406.1, at 287 (with emphasis added by Justice Palmer). He Despite the 2013 Dean decision, “careful habits” remains
then emphasized Graham’s statement that “[e]vidence that one alive and well in Illinois. See, for example, Jacobs v. Yellow Cab
is a ‘careful man’ is lacking the specificity of the act becoming Affiliation, Inc., 2017 IL App (1st) 151107, ¶¶112-117; see also
semiautomatic and extremely regular; it goes to character rather Karahodzic v. JBS Carriers, Inc., 881 F.3d 1009 (7th Cir. 2018)
than habit.” Powell, at ¶ 153, quoting Graham, at § 406.1, at (citing Jacobs for the proposition that “careful habits evidence
287. He then expressed his belief “that being a careful driver is is admissible to show due care when the plaintiff is unavailable
not a response to a repeated specific situation but rather a more to testify and no eyewitnesses other than the defendant are
generalized description of a person’s character trait.” Powell, available.”) Karahodzic, 881 F.3d at 1017.
at ¶ 154. Finally, having concluded that proof of “careful hab- For additional discussion of why “careful habits” evidence
its” is nothing more than proof of character evidence, Justice should be excluded under the rule related to character, see the
Palmer concluded with these remarks: Author’s Commentary on Ill. R. Evid, 404(a) Generally; see
“As character evidence I believe it should be inad- also Marc D. Ginsberg, An Evidentiary Oddity:“Careful Habit”
missible under our Rule 404(a). Therefore, as the – Does the Law of Evidence Embrace This Archaic/Modern
special circumstances that spawned the concept of Concept? 43 Ohio N. U. L. Rev. 293 (2017), discussing the
‘careful habits’ evidence no longer exist, and as I origins of Illinois’ careful habits and calling for its aboli-
feel that this is simply character evidence, I believe tion.
Justice Palmer’s analysis and conclusions about “careful
the concept to no longer be viable and further that habits” as habit testimony under IRE 406 and as character evi-
IPI Civil (2006) No. 10.08 should be discarded.” dence under IRE 404(a) are significant. They should be heeded.
Powell, at ¶154.
Rule 407. Subsequent Remedial Measures Rule 407. Reserved. [Subsequent Remedial
When measures are taken that would have made an Measures]
earlier injury or harm less likely to occur, evidence of
the subsequent measures is not admissible to prove:
· negligence;
· culpable conduct;
· a defect in a product or its design; or
· a need for a warning or instruction.
But the court may admit this evidence for another
purpose, such as impeachment or—if disputed—prov-
ing ownership, control, or the feasibility of precaution-
ary measures.
COMMENTARY
In Jablonski, however, the appellate court deviated from Draft Rule 407. Subsequent Remedial Measures (as originally
drafted, before withdrawn by the Committee)
prior decisions in holding that the subsequent-remedial-mea-
When, (1) after an injury or harm allegedly caused
sure bar did not apply.
by an event, or (2) after manufacture of a product
Committee’s Original Draft of Rule 407 and Reason for Its but prior to an injury or harm allegedly caused
Withdrawal
by that product, measures are taken that, if taken
Before the appellate court holding in the Jablonski case, the
previously, would have made the injury or harm
Committee had drafted a proposed rule that essentially adopted
less likely to occur, evidence of the subsequent
FRE 407, but that added a provision, subdivision (2), that incor-
measures is not admissible to prove negligence,
porated the principle that the subsequent-remedial-measure
culpable conduct, a defect in a product, a defect
bar applied to a product that had been manufactured before
in a product’s design, or a need for a warning or
it caused an injury. After learning of the conflict caused by the
instruction. This rule does not require the exclusion
Jablonski holding and after the supreme court granted review in
of evidence of subsequent measures when offered
that case, however, the Committee withdrew its draft proposal,
for another purpose, such as proving ownership,
expecting the supreme court to address and resolve the con-
control, or feasibility of precautionary measures
flicts described above.
or design, if controverted, or for purposes of
In its opinion in Jablonski v. Ford Motor Co., 2011 IL 110096,
impeachment.
however, though it reversed the judgments of the circuit and
Garcia Decision
appellate courts, the supreme court based its decision on the
Garcia v. Goetz, 2018 IL App (1st) 172204, represents a rare
insufficiency of the plaintiffs’ evidence related to negligent
published post-codification decision involving the principle
design, the plaintiffs’ reliance on a non-cognizable postsale
of subsequent remedial measures, through not applying a
duty to warn, and the plaintiffs’ faulty theory concerning the
codified evidence rule but by applying Illinois common law. In
defendant’s alleged voluntary undertaking. The court therefore
that case, while on a service call to repair a boiler, the plaintiff
explicitly found it unnecessary to address various evidentiary
was injured when he fell down a flight of stairs leading to the
rulings, “including whether the trial court erred in admitting
basement of the defendants. The case was treated as involving
evidence related to postsale remedial measures.” Thus, the
premises liability rather than negligence. Although photographs
issue involving subdivision (2) in the rule originally proposed
of the stairway were produced and relied upon by the expert
by the Committee was not specifically addressed, nor was
witnesses on both sides, the stairs were removed as part of a
there a resolution of the conflict in the appellate court holdings
remodeling project before a physical inspection could occur.
concerning products liability cases.
The plaintiff argued that “the trial court should have allowed
The Committee’s withdrawn draft rule is presented below. It
evidence regarding [the removal of the stairs] to let the jury
includes subdivision (2), which excludes evidence of remedial
decide if defendants had destroyed evidence and also to explain
measures taken “after the manufacture of a product but prior to
why his expert was forced to testify from photographs instead of
an injury or harm allegedly caused by that product.” Because
from an in-person inspection of the stairway.” Garcia, at ¶ 42.
of the conflict that continues to exist in Illinois concerning
The trial court, however, granted the defendants’ motion in
whether the rule applies in product liability cases, the rule on
limine, based on the principle of subsequent remedial mea-
subsequent remedial measures remains reserved. Unless the
sures, barring evidence that the defendant’s expert was unable
supreme court decides to codify a rule on its own, the conflict
to inspect the basement stairway before its removal.
that now exists on this issue will await resolution until a case in
On appeal after a verdict for the defendants, the plaintiff
controversy is submitted to it.
first argued that, because the defendants denied “that the stairs
were dangerous or that the changes were made to remedy a concluded that the plaintiff’s focus was “not on the fact that
dangerous condition, the remodel cannot be considered a defendants removed and replaced the stairs, but on the timing
subsequent remedial measure.” Id. at ¶ 43. Relying on the of that remodeling project, which occurred before [plaintiff’s]
definition of “subsequent remedial measure” in Black’s Law expert was able to examine the stairway.” Id. at ¶47 (emphasis
Dictionary (i.e., “an action taken after an event, which, if in original).
taken before the event, would have reduced the likelihood Finally, in addressing the plaintiff’s contention that the
of the event’s occurrence”), the appellate court reasoned that jury should have been allowed to decide the reasonableness
the “definition does not suggest that a subsequent remedial of defendants’ stated reason for removing the stairs before his
measure exists only when it is taken solely to remedy some expert had an opportunity to view them, the appellate court
unsafe condition,” and thus it concluded that “the law does noted the tension between “spoliation” and the doctrine of
not require [defendants] to acknowledge that they removed the subsequent remedial measure. To address that tension, the
stairs specifically to address safety issues in order to benefit appellate court considered “the probative value of the spoli-
from the general ban of evidence of post-remedial measures as ation inference and whether or not evidence was destroyed
proof of negligence.” Id. at ¶44. as a result of intentional wrongdoing or mere negligence.” It
Citing Herzog in noting that, although inadmissible to prove held that the trial court had not abused its discretion in accept-
negligence, evidence of subsequent remedial measures may be ing the defendants’ explanation that the stairs needed to be
admissible for another purpose, such as “to prove ownership removed as part of the requirement to remove all the drywall in
or control of property if disputed by the defendant, to prove the basement in order to determine the source of water leakage
feasibility of precautionary measures if disputed by the defen- in that location. Id. at ¶¶47-49.
dant, or as impeachment” (id. at ¶ 46), the appellate court
Rule 408. Compromise Offers and Negotiations Rule 408. Compromise and Offers to Compromise
(a) Prohibited Uses. Evidence of the following (a) Prohibited Uses. Evidence of the following is
is not admissible—on behalf of any party—either to not admissible on behalf of any party, when offered
prove or disprove the validity or amount of a disputed to prove liability for, invalidity of, or amount of a
claim or to impeach by a prior inconsistent statement claim that was disputed as to validity or amount, or
or a contradiction: to impeach through a prior inconsistent statement or
(1) furnishing, promising, or offering—or contradiction:
accepting, promising to accept, or offering to (1) furnishing or offering or promising to
accept—a valuable consideration in compromising furnish—or accepting or offering or promising to
or attempting to compromise the claim; and accept—a valuable consideration in compromising
(2) conduct or a statement made during com- or attempting to compromise the claim; and
promise negotiations about the claim—except when (2) conduct or statements made in compromise
offered in a criminal case and when the negotiations negotiations regarding the claim.
related to a claim by a public office in the exercise of (b) Permitted Uses. This rule does not require the
its regulatory, investigative, or enforcement author- exclusion of any evidence otherwise discoverable merely
ity. because it is presented in the course of settlement
(b) Exceptions. The court may admit this evidence negotiations. This rule also does not require exclusion
for another purpose, such as proving a witness’s bias if the evidence is offered for purposes not prohibited
or prejudice, negating a contention of undue delay, or by subdivision (a). Examples of permissible purposes
proving an effort to obstruct a criminal investigation or include proving a witness’ bias or prejudice; negating
prosecution. an assertion of undue delay; establishing bad faith; and
proving an effort to obstruct a criminal investigation or
prosecution.
COMMENTARY
161019, where in emails, in a letter, and in handwritten notes, admission of the plaintiff’s statement on the basis that it was
the defendant made offers to prosecute an action on behalf inadmissible under FRE 408. The Seventh Circuit disagreed. It
of his former client against that client’s licensee without any reasoned that the statement had been made during settlement
expense to it, the appellate court held that the trial court did discussions on the original claims of the plaintiff but the state-
not err in barring the evidence of this compromise under IRE ment was not relevant to those claims. Rather, it was relevant
408. to the later-filed counterclaim for abuse of process, a claim that
Because of the similar wording of the federal and Illinois was brought after the settlement discussions. Pointing out that
rules, a Seventh Circuit decision is relevant. In Wine & Canvas FRE 408(a) refers to “a disputed claim,” not “disputed claims”
Development, LLC v. Muylle, 868 F.3d 534 (7th Cir. 2017), the or “any claims,” and that subdivisions (1) and (2) of paragraph
plaintiff’s primary claim was for trademark infringement. During (a) also use the singular term “claim,” and further pointing out
the course of settlement discussions, the plaintiff said that his that the defendant was allowed to admit the statement not to
goal was to “close [the defendant’s] door or [the plaintiff’s] *** disprove liability on the plaintiff’s claims “but rather to show
attorney would close [it] for [him].” Months later, the defendant the [plaintiff’s] improper intent and ulterior motive in bringing
filed a counterclaim alleging abuse of process. During a jury [its] lawsuit for the purpose of proving [the defendant’s] abuse
trial, the district court allowed admission of the statement made of process counterclaim,” the Seventh Circuit approved the
by the plaintiff during settlement discussions. The jury returned admission of the statement under the unusual circumstances
verdicts against the plaintiff and in favor of the defendant that existed in this case, because “settlement discussions usu-
on its counterclaim. On appeal, the plaintiff challenged the ally encompass multiple claims all at once.”
Author’s Commentary on Ill. R. Evid. 408(b)
IRE 408(b) is identical to FRE 408(b) before the latter’s the underlying case. In the trial of the bad-faith claim, evidence
amendment solely for stylistic purposes effective December of the 2013 letter and additional testimony about the letter
1, 2011, except for Illinois’ addition of the first sentence, to had been admitted into evidence. This had been done under
make it clear that admissible evidence discoverable outside IRE 408(b)’s permitted purpose of “establishing bad faith.” In
the course of settlement negotiations is not excluded merely finding that the 2013 letter was not admissible on remand, the
because it was used in such discussions, and except for the appellate court provided this reasoning:
addition of “establishing bad faith” as another example of a As an initial matter, we agree with ISMIE that
permissible purpose, and the substitution of “an assertion” for any evidence of the 2013 settlement offer was
“a contention” in the phrase “negating an assertion of undue barred by Rule 408. While Rule 408 does allow
delay.” the introduction of evidence of settlement offers
Hana v. Illinois State Medical Inter-Insurance Exchange and negotiations to establish bad faith, we do not
Mutual Insurance Co., 2018 IL App (1st) 162166, was an action believe that this exception includes the introduc-
to recover the assigned rights of two defendant doctors based tion of evidence with respect to the settlement of
on a bad-faith claim for ISMIE’s failure to settle the underlying the present litigation so as to establish ISMIE’s bad
medical malpractice litigation (in 2009) within the policy lim- faith with respect to its handling of the underlying
its. In this 2018 decision on the bad-faith claim, the appellate case. While no Illinois case has addressed this
court voided verdicts returned over ISMIE’s objection to a specific issue, we note that Rule 408 “mirrors the
six-person jury, but the court went on to address the on-remand Federal Rule 408, which our state courts have
propriety of admitting into evidence a 2013 letter from plain- been applying to cases for years.” County of Cook
tiff’s counsel to ISMIE, which offered to settle the lawsuit for the v. Illinois Labor Relations Board, Local Panel, 2012
$1.35 million excess verdict entered against the two doctors in IL App (1st) 111514, ¶ 35. At least one federal
court has recognized that evidence of an insurer’s case. The underlying judgment was entered in
refusal to settle a bad faith case is inadmissible May 2009, and our prior decision affirming that
for the purpose of establishing the insurer’s bad judgment was entered in August 2011. The [two
faith in handling an underlying matter. Niver v. doctors] assigned their bad-faith claim to plaintiffs
Travelers Indemnity Co. of Illinois, 433 F. Supp. 2d in March 2010, in exchange for a covenant not
968, 994 (N.D. Iowa 2006). This is consistent with to enforce any excess judgment against the [two
the underlying policy of Rule 408; i.e., promoting doctors]. In light of these facts, we fail to see how
settlement. any refusal of ISMIE to settle this lawsuit in 2013
Even if this evidence was not specifically barred by has any relevance with respect to whether ISMIE
Rule 408, we agree with ISMIE that it is irrelevant. engaged in bad faith and willful and wanton
“‘Relevant evidence’ means evidence having any conduct leading to the 2009 excess judgment.
tendency to make the existence of any fact that is Even if we accepted plaintiffs’ insistence that this
of consequence to the determination of the action evidence shows continuing willful and wanton
more probable or less probable than it would be conduct occurring after the 2009 excess judg-
without the evidence.” Ill. R. Evid. 401 (eff. Jan.1, ment, we reject any contention that such evidence
2011). “Evidence which is not relevant is not is in any way relevant to establishing that plaintiffs
admissible.” Ill. R. Evid. 402 (eff. Jan. 1, 2011). were therefore damaged by the 2009 judgment.
In this case, the pleadings, evidence, arguments, Therefore, no evidence regarding the 2013
and jury instructions all reflect that the ultimate settlement letter should be admitted at trial upon
issue was whether ISMIE’s bad faith and willful and remand.
wanton conduct caused the excess judgment to be Hana, 2018 IL App (1st) 162166, ¶¶ 30-32 (emphases in
entered against the [two doctors] in the underlying original).
Rule 409. Offers to Pay Medical and Similar Rule 409. Payment of Medical and Similar
Expenses Expenses
Evidence of furnishing, promising to pay, or offering In addition to the provisions of section 8–1901 of
to pay medical, hospital, or similar expenses resulting the Code of Civil Procedure (735 ILCS 5/8–1901),
from an injury is not admissible to prove liability for evidence of furnishing or offering or promising to pay
the injury. medical, hospital, or similar expenses occasioned by an
injury is not admissible to prove liability for the injury.
COMMENTARY
Rule 410. Pleas, Plea Discussions, and Related Rule 410. Inadmissibility of Pleas,
Statements Plea Discussions, and Related Statements
(a) Prohibited Uses. In a civil or criminal case, Evidence of a plea discussion or any resulting
evidence of the following is not admissible against the agreement, plea, or judgment is not admissible in any
defendant who made the plea or participated in the plea criminal proceeding against the defendant who made
discussions: the plea or was a participant in the plea discussions
(1) a guilty plea that was later withdrawn; under the following circumstances:
(2) a nolo contendere plea; (1) a plea of guilty which is not accepted or is
(3) a statement made during a proceeding on withdrawn;
either of those pleas under Federal Rule of Criminal (2) a plea of nolo contendere;
Procedure 11 or a comparable state procedure; or (3) any statement made in the course of any
(4) a statement made during plea discussions proceedings under Illinois Supreme Court Rule 402
with an attorney for the prosecuting authority if the regarding either of the foregoing pleas; or
discussions did not result in a guilty plea or they (4) any statement made in the course of a plea
resulted in a later-withdrawn guilty plea. discussion which does not result in a plea of guilty, or
(b) Exceptions. The court may admit a statement which results in a plea of guilty which is not accepted
described in Rule 410(a)(3) or (4): or is withdrawn, or which results in a judgment on a
(1) in any proceeding in which another statement plea of guilty which is reversed on direct or collateral
made during the same plea or plea discussions has review.
been introduced, if in fairness the statements ought
to be considered together; or
(2) in a criminal proceeding for perjury or false
statement, if the defendant made the statement
under oath, on the record, and with counsel present.
COMMENTARY
plea, or judgment shall be admissible against the Decisions Determining That Rule 402(f) Did Not Apply
defendant in any criminal proceeding.” In People v. Rivera, 2013 IL 112467, the supreme court
applied the test provided under the preceding heading. There,
Determining Whether Statements Occurred During “Plea
Discussion” in reversing the holding of the appellate court, the court found
When a defendant seeks concessions from a police officer that the defendant’s two statements, one to a police officer and
or a prosecutor, usually before or after an arrest and not as part the other to the same officer and an assistant state’s attorney,
of court proceedings, the issue that arises is whether statements about obtaining guarantees he might receive if he spoke to them
made by the defendant were part of a “plea discussion” within or gave a confession about the alleged sexual offenses he was
the meaning of Rule 402(f), as well as IRE 410(4). The consid- alleged to have committed, were admissible as independent
erations that apply to resolve the issue are best summarized in admissions and not plea-related. The supreme court held that
People v. Rivera, 2013 IL 112467: the defendant’s statements “are not accurately characterized
“Not all statements made by a defendant in the as an attempt to engage in plea negotiations,” and “it must
hope of obtaining concessions are plea discus- be clear that a defendant actually intends to plead guilty in
sions. There is a difference between a statement exchange for a concession by the State, and that such intention
made in the course of a plea discussion and an is objectively reasonable under the circumstances.” Rivera, at
otherwise independent admission, which is not ¶ 30. The court therefore upheld the admission of evidence of
excluded by Rule 402(f). The determination is not the defendant’s effort to obtain guarantees.
a bright-line rule and turns on the factual circum- Other supreme court decisions holding that statements of
stances of each case. In making this determination, defendants were not plea-related and therefore admissible at
we may consider the nature of the statements, to trial include People v. Jones, 219 Ill. 2d 1 (2006) (reasoning that
whom defendant made the statements, and what “while Rule 402(f) was enacted to encourage the negotiation
the parties to the conversation said. Before a process, it was not enacted to discourage legitimate interroga-
discussion can be characterized as plea related, tion techniques. Those arrested often seek leniency, and not all
it must contain the rudiments of the negotiation attendant statements made in the hope of gaining concessions
process, i.e., a willingness by defendant to enter are plea-related statements under Rule 402(f);” and holding
a plea of guilty in return for concessions by the that, although not discernible from the record, taking as true
State. Where a defendant’s subjective expectations defendant’s allegations that he offered to bargain when talking
to engage in plea negotiations are not explicit, to police, the objective circumstances in the case revealed that
the objective circumstances surrounding the any expectation that he was engaged in plea negotiations was
statement take precedence in evaluating whether not reasonable); and People v. Hart, 214 Ill. 2d 490 (2005)
the statement was plea related.” Rivera, at ¶ 19 (defendant’s suggestion that he might be willing to cooperate
(citations and internal quotation marks omitted). with a detective, but that he first wanted to know what the
The supreme court has provided a two prong test for detective could do for him, did not constitute a plea-related
determining the non-admissibility of a plea-related statement, discussion; Rule 402(f) was not meant to exclude from admis-
containing both a subjective and an objective component. sion evidence of mere offers of cooperation that do not include
The test is whether: (1) the defendant exhibited a subjective a willingness to plead guilty).
expectation to negotiate a plea, and (2) the expectation was People v. Neese, 2015 IL App (2d) 140368, a prosecution for
reasonable under the totality of the objective circumstances. a felony theft offense, cites and relies on numerous principles
People v. Friedman, 79 Ill. 2d 341, 351-52 (1980); Rivera, at from Rivera in holding that the statement of a police officer
¶18. that he told defendant over the phone that, if defendant would
come in and give a full, written confession, he would consider In its review of the appellate court decision, the supreme
charging defendant only with a misdemeanor offense, did not court applied Ill. S. Ct. R. 402 (f), and cited federal court deci-
constitute a plea-related discussion, because neither the police sions on FRE 410, prior Illinois Appellate Court decisions, and
officer nor defendant stated anything about a possible guilty the evidence presented at the third stage of the postconviction
plea. For that reason, the defendant’s statement that, if he came evidentiary proceedings. The court concluded that defendant’s
in (he didn’t) he (the defendant) would write that he had taken statement was not made during plea discussions and was there-
about $50 worth of coins from washing machines on each of fore admissible at defendant’s trial. The court relied in part on
12 occasions, was admissible. Citing Rivera (see Rivera at ¶29), the testimony of defendant and his attorney at the third stage of
the appellate court emphasized “that this is the type of situation the postconviction proceedings that defendant had agreed to
in which a court should resist characterizing a commonplace plead guilty before defendant made his videotaped statement.
conversation between a police officer and a suspect as a plea Concluding that it could “easily conclude based on this record
negotiation.” People v. Neese, 2015 IL App (2d) 140368, ¶19. that a plea deal was firmly in place before the videorecorded
In People v. Eubanks, 2021 IL 126271, a year after having statement was made and that the statement was made pursuant
been charged with first degree murder and aggravated battery to the deal” (Eubanks, 2021 IL 126271, at ¶ 47), the supreme
with a firearm, defendant gave detectives an inculpatory court reasoned as follows:
videotaped statement. Soon thereafter, he pleaded guilty to The construction rendered by these [federal and
first degree murder. Still later, the trial court held a hearing on Illinois Appellate] courts is not only consistent
defendant’s motions to withdraw his plea of guilty, and granted with the plain language of Rule 402(f) but also
those motions. A stipulated bench trial followed, during which with its purpose, which “is to encourage the
defendant’s videotaped statement was admitted into evidence. negotiated disposition of criminal cases through
Defendant, who had previously been offered 35 years’ impris- elimination of the risk that the accused enter plea
onment in a recanted negotiated plea in exchange for his guilty discussions at his peril.” [Citation]. The rule’s
plea and agreement to testify against two others involved in purpose is accomplished by excluding statements
the murder, was found guilty of first degree murder and he was made during the negotiation process. Once nego-
sentenced to 50 years’ imprisonment. After the affirmance of tiations are complete and the parties have reached
his conviction and sentence, defendant filed a postconvic- an agreement, however, there is nothing more for
tion petition in which he alleged that his trial counsel was the rule to “encourage.” At this point, the case is
ineffective for failing to seek suppression of his videotaped most likely to be resolved according to the parties’
statement at trial, pursuant to Illinois Supreme Court Rule agreed disposition. Eubanks, at ¶40.
402(f). (The attorney had moved to suppress the statement Finally, addressing defendant’s policy argument, the
on 5th and 14th amendment grounds, but not on the basis of supreme court reasoned as follows:
Rule 402(f).) In a split decision, the appellate court held that Defendant argues before this court that, even if
defendant’s videotaped statement was properly admitted. See the statement in this case was given after a plea
2020 IL App (3d) 189117. The majority held that defendant’s deal had been reached and in performance of that
videotaped statement was not made during plea discussions deal, it should still be inadmissible as a matter
and was thus admissible at his trial. The dissenting justice of policy. But defendant offers no valid basis for
contended that nothing in the language of Rule 402(f) nor in reading the term “plea discussions” in the rule to
its accepted purpose distinguishes between a statement made encompass something more than negotiations.
during plea negotiations and a statement offered pursuant to More importantly, he fails to identify a single case
said negotiations. that supports his position. Indeed, all the cases
considering the issue uniformly hold that state- for unspecified ‘guarantees.’ Nor did defendant
ments given after a plea agreement is finalized are actually offer to plead guilty. Because defendant
admissible. Eubanks, at ¶42. had not yet been charged when he made the
Decisions Determining that Rule 402(f) Applied statements, it is not apparent what concessions
Two supreme court decisions that held that statements of defendant hoped to receive in exchange for his
defendants were plea-related and therefore not admissible confession. Not all statements made in the hopes
at trial are People v. Friedman, 79 Ill. 2d 341, 351-52 (1980) of some concession are plea related.” Rivera, at
(holding that defendant’s statement to an Attorney General ¶ 26 (also citing appellate court decisions holding
investigator, a month after his indictment, about “making a that statements were not plea-related).
deal” and that his “unsolicited statement was an offer to enter Cooperation Agreements
negotiation,” which was “a clear indication of defendant’s In People v. Stapinski, 2015 IL 118278, the Illinois Supreme
intent to pursue plea negotiations,” thus rendering inadmissible Court distinguished a “cooperation agreement” from the type
his statement at trial); and People v. Hill, 78 Ill. 2d 465 (1980) of plea agreements that are covered by IRE 410 and Supreme
(defendant’s statement to an assistant state’s attorney that he Court Rule 402(f), or from the grant of immunity. In Stapinski,
“wanted to talk a deal” and then spelling out the terms he would the supreme court applied contract principles in holding that,
agree to, constituted plea-related discussion, thus rendering his where a defendant fulfills his part of a cooperation agreement—
statements at trial inadmissible). an agreement with police to cooperate in developing a case
In determining whether statements are plea-related, note against another in exchange for not being charged—due pro-
that, in distinguishing the statements of the defendants in cess principles require that the agreement be honored and that
Friedman and Hill, in Rivera the supreme court reasoned as a charge brought in violation of the agreement be dismissed.
follows: The court further held that due process requires enforcement
“Unlike the defendants in Friedman and Hill, even where the State has not approved of the agreement, hold-
defendant did not exhibit a subjective expectation ing that “[a]n unauthorized promise may be enforced on due
to negotiate a plea. Defendant did not ask for process grounds if a defendant’s reliance on the promise has
any specific concessions from the State, only constitutional consequences.” Stapinski, at ¶55.
COMMENTARY
Rule 412. Sex-Offense Cases: The Victim’s Sexual Rule 412. Prior Sexual Activity or Reputation as
Behavior or Predisposition Evidence
(a) Prohibited Uses. The following evidence is not Evidence of the sexual activity or reputation of
admissible in a civil or criminal proceeding involving a person alleged to be a victim of a sexual offense is
alleged sexual misconduct: inadmissible:
(1) evidence offered to prove that a victim (a) in criminal cases, as provided for and subject to
engaged in other sexual behavior; or the exceptions in section 115-7 of the Code of Criminal
(2) evidence offered to prove a victim’s sexual Procedure of 1963 (725 ILCS 5/115-7);
predisposition. (b) in civil cases, as provided for and subject to
(b) Exceptions. the exceptions in section 8-2801 of the Code of Civil
(1) Criminal Cases. The court may admit the Procedure (735 ILCS 5/8-2801).
following evidence in a criminal case:
(A) evidence of specific instances of a victim’s
sexual behavior, if offered to prove that someone
other than the defendant was the source of semen,
injury, or other physical evidence;
(B) evidence of specific instances of a vic-
tim’s sexual behavior with respect to the person
accused of the sexual misconduct, if offered by the
defendant to prove consent or if offered by the
prosecutor; and
(C) evidence whose exclusion would violate
the defendant’s constitutional rights.
(2) Civil Cases. In a civil case, the court may
admit evidence offered to prove a victim’s sexual
behavior or sexual predisposition if its probative
value substantially outweighs the danger of harm to
any victim and of unfair prejudice to any party. The
court may admit evidence of a victim’s reputation
only if the victim has placed it in controversy.
(c) Procedure to Determine Admissibility.
(1) Motion. If a party intends to offer evidence
under Rule 412(b), the party must:
(A) file a motion that specifically describes the
evidence and states the purpose for which it is to
be offered;
(B) do so at least 14 days before trial unless
the court, for good cause, sets a different time;
(C) serve the motion on all parties; and
COMMENTARY
Note that in civil cases, Public Act 96-0307, effective January omitted.) [People v.] Santos, 211 Ill. 2d [395] at
1, 2010, created section 8-2801 of the Code of Civil Procedure 401.” Patterson at ¶114.
(735 ILCS 5/8-2801). That statute provides provisions similar In Patterson, the court also noted the dicta in People
to those in section 115-7 of the Code of Criminal Procedure v. Sandoval, 135 Ill. 2d 159, 185 (1990), “stating that one
of 1963 regarding inadmissibility of evidence of prior sexual ‘extraordinary circumstance’ potentially satisfying the consti-
activity and reputation. The statute is provided in the appendix tutional requirement exception to the rape shield statute is an
at Appendix F. offer of evidence providing an alternative explanation for the
Statutory Counterparts to Fed. R. Evid. 412(b)’s Exceptions victim’s observed injuries.” The court noted, however, that in
Similar to the exceptions provided by FRE 412(b), sec- the case at bar the examining physician had not testified that
tion 115-7(a) of the Code of Criminal Procedure of 1963 the alleged injury to the victim (cervical redness) was the result
(see Appendix E) provides exceptions to the general rule of of a rape. Thus, there was no basis for applying an exception to
exclusion where the evidence concerns past sexual conduct the rape shield bar.
with the accused relevant to the issue of consent or when In addition to the dicta in Sandoval, for examples of cases
the evidence is constitutionally required to be admitted. See providing insight into “constitutionally required” reasons that
People v. Maxwell, 2011 IL App (4th) 100434 (discussing other may necessitate exceptions to the general rule of exclusion
cases applying section 115-7(a) and holding that a theoretical provided by the rape shield bar, see Olden v. Kentucky, 488
cross-examination question posed by defense counsel to a U.S. 227 (1988) (holding that where the man with whom the
doctor (“Is it possible that the alteration of the hymen of this alleged victim was cohabiting saw her exit the co-defendant’s
girl could have happened from sexual intercourse by someone car, defendant had the constitutional right under the Sixth
other than defendant?”) was properly prohibited by the trial Amendment confrontation clause to question the alleged vic-
court in the absence of evidence that someone else may have tim about her cohabitation with that man to show her motive
been responsible, which would have made it constitutionally in making the claim of rape); People v. Gorney, 107 Ill. 2d 53
required). (1985) (although affirming the conviction because the evidence
In civil cases, section 8-2801 of the Code of Civil Procedure was deemed to be overwhelming, holding that “[e]vidence of
(735 ILCS 5/8-2801; see Appendix F), provides exceptions to false allegations of rape may be admissible”).
the general rule of inadmissibility of prior sexual activity or rep- See also People v. Bates, 2018 IL App (4th) 160255, an aggra-
utation where the evidence is offered “to prove that a person vated criminal sexual assault prosecution, where the appellate
other than the accused was the source of semen, injury or other court noted that defendant conceded that the DNA found on
physical evidence” or to prove prior sexual activity with the the victim’s clothing, which matched the victim’s two consen-
defendant in order to prove consent. sual partners, should be excluded based on the rape shield law.
Relevant Illinois Decisions But the court held that, based on the same law, the trial court
In People v. Patterson, 2014 IL 115102, the supreme court properly rejected defendant’s contention that the DNA of a
emphasized: third but unidentified male found on the victim’s vaginal swab
“the absolute nature of the rape shield bar, subject should have been admitted as constitutionally required. The
only to two narrow statutory exceptions for ‘evi- bases of defendant’s contentions were that, though defendant
dence concerning the past sexual conduct of the could not be excluded as the potential source of DNA found
alleged victim [or corroborating witness] *** with on the victim’s anal swab, there was no definite match with his
the accused’ and evidence that is ‘constitutionally DNA and, because the victim had testified that she had been
required to be admitted.’ (Internal quotation marks both vaginally and anally penetrated, the unknown male may
have been the source of the DNA on the anal swab as well,
and thus the actual offender. Noting that “[d]efendant’s own case where defendant contended that he had consensual sexual
expert witness conceded that the DNA profile found on [the relations with the victim, the appellate court held that the trial
victim’s] anal swab would only occur in one out of every 840 court did not abuse its discretion in denying the introduction of
trillion individuals in the African-American population” (Bates, the unidentified DNA.
at ¶ 62; interior quotation marks omitted), and reasoning that
Illinois’ Statutory Counterparts to Fed. R. Evid. 412(c)’s
“the statistical improbabilities that an unidentified person other Procedures
than defendant contributing both the semen on [the victim’s] Section 115-7(b) of the Code of Criminal Procedure of 1963
vaginal swab and anal swab, this evidence would not make (see Appendix E) requires the defendant to make an offer of
a meaningful contribution to the fact-finding enterprise” (id. proof, at a hearing held in camera, concerning the past sexual
at 63), the court concluded “at best, the unidentified semen conduct or reputation of the alleged victim or corroborating
would be marginally relevant.” Id. at 64. In addition to concerns witness, in order to obtain a ruling concerning admissibility.
that “this evidence would pose an undue risk of harassment, That section identifies the type of information required for the
prejudice, and confusion of the issues,” the court concluded offer of proof. It also provides that, to admit the evidence, the
that assuming the unidentified semen was from a consensual court must determine that the evidence is relevant and that the
partner, such evidence would have no bearing on whether [the probative value of the evidence outweighs the danger of unfair
victim] consented to sexual relations with the defendant.” Id. prejudice.
(interior quotation marks omitted). Having previously noted In civil cases, section 8-2801(c) of the Code of Civil
that the jury heard that defendant’s DNA was found on a Procedure (735 ILCS 5/8-2801(c); see Appendix F) requires the
victim of another sexual assault under similar circumstances defendant to file a written motion at least 14 days before trial
a few weeks after the assault in the case at bar, and pointing describing the evidence and the purpose for which it is offered,
out that defendant had confronted the State’s expert witness and it requires the court to conduct an in camera hearing, with
on cross-examination by demonstrating that his DNA was not the record kept under seal, before allowing admission of the
found on the victim’s vaginal swab and that he was not a direct evidence.
match of the victim’s anal swab, and further that this was not a
Rule 413. Similar Crimes in Sexual-Assault Cases Rule 413. Evidence of Other Offenses in Criminal
(a) Permitted Uses. In a criminal case in which a Cases
defendant is accused of a sexual assault, the court may (a) Evidence in Certain Cases. In a criminal case
admit evidence that the defendant committed any other for an offense set forth in section 115-7.3 of the Code
sexual assault. The evidence may be considered on any of Criminal Procedure of 1963 (725 ILCS 5/115-7.3),
matter to which it is relevant. evidence of the defendant’s commission of another
(b) Disclosure to the Defendant. If the prosecutor offense or offenses set forth in section 115-7.3 is admis-
intends to offer this evidence, the prosecutor must sible, as provided in section 115-7.3.
disclose it to the defendant, including witnesses’ state- (b) Evidence in Domestic Violence Cases. In a
ments or a summary of the expected testimony. The criminal case for an offense related to domestic violence
prosecutor must do so at least 15 days before trial or at as set forth in section 115-7.4 of the Code of Criminal
a later time that the court allows for good cause. Procedure of 1963 (725 ILCS 5/115-7.4), evidence
(c) Effect on Other Rules. This rule does not limit of the defendant’s commission of another offense or
the admission or consideration of evidence under any offenses of domestic violence is admissible, as provided
other rule. in section 115-7.4.
(d) Definition of “Sexual Assault.” In this rule (c) Evidence of Prior Convictions. In a criminal
and Rule 415, “sexual assault” means a crime under case for the type of offenses set forth in section 115-20
federal law or under state law (as “state” is defined in 18 of the Code of Criminal Procedure of 1963 (725 ILCS
U.S.C. § 513) involving: 5/115-20), evidence of the defendant’s conviction for
(1) any conduct prohibited by 18 U.S.C. chapter an offense set forth in that section is admissible when
109A; the victim is the same person who was the victim of the
(2) contact, without consent, between any part previous offense that resulted in the conviction of the
of the defendant’s body—or an object—and another defendant, as provided in section 115-20.
person’s genitals or anus;
(3) contact, without consent, between the
defendant’s genitals or anus and any part of another
person’s body;
(4) deriving sexual pleasure or gratification from
inflicting death, bodily injury, or physical pain on
another person; or
(5) an attempt or conspiracy to engage in con-
duct described in subparagraphs (1)–(4).
court decision in Ward in holding that the trial court erred in People v. Fields: Possible Consequence of Reversal of Prior
Admitted Conviction
not allowing evidence of the earlier acquittal of the defendant
In People v. Fields, 2013 IL App (3d) 080829-B, the appel-
for the subsequent offense which had been admitted into evi-
late court held that section 115-7.3(b), which allows “evidence
dence for the purpose of establishing identity (as opposed to
of the defendant’s commission of another offense or offenses”
proof of propensity as in Ward).
includes evidence of a prior conviction and permits proof of
Time Between Prior Act and Offense on Trial
the conviction through the submission to the jury of a certified
Citing Donoho, Ward, and Vannote, in People v. Smith, 2015
conviction, thus rejecting the defendant’s contention that such
IL App (4th) 130205, the appellate court upheld the admission
proof was improper. In Fields, although the prior conviction had
of prior uncharged sexual abuse offenses, under section 115-
been reversed after the defendant’s conviction in the case at
7.3, in a prosecution for sexual abuse offenses. Recognizing
bar, the appellate court declined to consider the consequence
that the prior offenses had occurred 12 to 18 years prior to the
of the reversal, reasoning that the issue had not been before the
offenses on trial, the court pointed out that the supreme court
trial court and thus could not be “reviewed,” and that the issue
in Donoho had “decline[d] to adopt a bright-line rule about
had to be presented in a postconviction petition. The supreme
when prior convictions are per se too old to be admitted under
court thereafter directed the court to vacate its judgment and
section 115-7.3,” and that the supreme court had noted that
to resolve the issue. In the decision that followed in People v.
the “appellate court has affirmed admission of other-crimes
Fields, 2013 IL App (3d) 080829-C, the court first noted that
evidence over 20 years old...” Smith, at ¶ 29, citing People v.
“the reversal of an underlying prior conviction admitted to
Donoho, 204 Ill. 2d 159, 183, 184 (2003), and People v. Davis,
show propensity does not result in automatic reversal,” because
260 Ill. App. 3d 176, 192 (1994).
it does not qualify as “structural error.” Fields, 2013 IL App (3d)
See also the discussion of People v. Kitch, 2019 IL App (3d)
080829-C, ¶ 21. Focusing on “the lack of direct evidence”
170522, ¶ 33, supra, in the commentary on IRE 404(b) under
(id. at ¶ 22), that “[t]here were no eyewitnesses or physical
the heading Applying Sections 115-7.3 and 115.7.4, where the
evidence” (id. at ¶ 24), and the emphasis during trial on the
appellate court made the same observation about Donoho and
defendant’s prior conviction, one that had been reversed (with
approved admission of a prior offense that occurred 13 years
the case subsequently dismissed), the appellate court, with one
before the charged offense.
justice dissenting, reversed the conviction and remanded the
In People v. Lobdell, 2017 IL App (3d) 150074, a majority of
case to the circuit court.
the appellate court panel held that during the defendant’s bench
Notice Provision
trial for the offense of criminal sexual assault the trial court had
Like FRE 413(b), section 115-7.3(d) of the Code of Criminal
not erred in admitting, for propensity purposes, evidence of a
Procedure of 1963 has a notice provision. That statute provides
rape conviction 30 years earlier. The majority pointed out that
that when “the prosecution intends to offer evidence under this
the defendant had been incarcerated for the rape conviction for
Section, it must disclose the evidence, including statements of
28 of the 30 years, and it cited the decisions in Donoho, where
witnesses or a summary of the substance of any testimony, at a
12 to 15 years had elapsed between offenses; Davis, where a
reasonable time in advance of trial, or during trial if the court
prior sex act occurred over 20 years before; and Smith, where
excuses pretrial notice on good cause shown.”
12 to 18 years had elapsed between the offenses. The dissenting
IRE 413(b) and Section 115-7.4
justice challenged the admission of the 30-year-old conviction
In addition to the sex-related offenses listed above, IRE
for rape primarily on the basis of her strong disagreement with
413(b), consistent with section 115-7.4 of the Code of Criminal
the majority concerning the similarity of the two offenses.
Procedure of 1963 (725 ILCS 5/115-7.4; see Appendix B),
extends the admissibility of evidence provided by FRE 413
concerning sex offenses, to allow evidence of a non-sex the legislature’s intent to make admissible not only a conviction
offense, specifically, another offense or offenses of domestic for the prior offenses it lists, but also the evidence underlying
violence in a prosecution for domestic violence. Note that IRE the conviction. The court noted that, in any event, section 115-
404(b) specifically refers to the provisions of section 115-7.4 7.4 specifically allows evidence related to a prior domestic
(in addition to those of section 115-7.3) as an exception to the violence offense in a subsequent prosecution for domestic
general rule prohibiting propensity evidence. violence, which was the offense under review in Chambers.
In People v. Dabbs, 239 Ill. 2d 277 (2010), the supreme court In People v. Chapman, 2012 IL 111896, the supreme court
held that evidence of the defendant’s domestic violence on his held that evidence of a prior conviction for domestic battery
former wife, evidence admitted during his trial for domestic was properly admitted in a prosecution for first-degree murder,
violence on his girlfriend, was proper. For an appreciation of even though murder is not one of the offenses specifically listed
the impact of the Dabbs decision on other-crimes evidence, in section 115-20. The court held that evidence of the domestic
see the discussion concerning that decision in the Author’s battery conviction was proper because murder is an offense
Commentary on Ill. R. Evid. 404(b). incorporated in section 115-20’s language permitting proof of
IRE 413(c) and Section 115-20 a prior conviction “in a later prosecution for any of these types
IRE 413(c), consistent with section 115-20 of the Code of offenses when the victim is the same person who was the
of Criminal Procedure of 1963 (725 ILCS 5/110-20; see victim of the previous offense that resulted in the conviction of
Appendix C), also broadens the provisions of FRE 413, for it the defendant.” Chapman, at ¶24 (Emphasis in original).
allows evidence of a prior conviction for domestic battery, Note that in People v. Ross, 2018 IL App (2d) 161079, the
aggravated battery committed against a family or household appellate court held that Chapman did not address the issue in
member, stalking, aggravated stalking, or violation of an order the case at bar, where a nonenumerated conviction (battery;
of protection “in a later prosecution for any of these types of defendant was originally charged with domestic battery but
offenses when the victim is the same person who was the vic- convicted of battery) was admitted for a similar kind of offense
tim of the previous offense that resulted in the conviction of the (murder), whereas Chapman involved an earlier conviction for
defendant.” Note, too, that IRE 404(b) specifically refers to the an enumerated offense (domestic battery) and a later prosecu-
provisions of section 115-20 (as well as those of sections 115- tion for murder (one of the “types of offenses” to which section
7.3 and 115-7.4) as an exception to the general rule prohibiting 115-20 applies). Nonetheless, the court held that it “need
propensity evidence. not resolve the issue, because the other-crimes evidence was
Chapman and Chambers: Liberal Application of Section 115-20 admissible under the common law and section 115-7.4.” Ross,
In People v. Chambers, 2011 IL App (3d) 090949, the appel- at ¶175.
late court concluded that language in section 115-20 reflected
Rule 415. Similar Acts in Civil Cases Involving [FRE 415 not adopted.]
Sexual Assault or Child Molestation
(a) Permitted Uses. In a civil case involving a claim [There is no statutory counterpart to the federal rule
for relief based on a party’s alleged sexual assault or in Illinois.]
child molestation, the court may admit evidence that
the party committed any other sexual assault or child
molestation. The evidence may be considered as pro-
vided in Rules 413 and 414.
(b) Disclosure to the Opponent. If a party intends
to offer this evidence, the party must disclose it to
the party against whom it will be offered, including
witnesses’ statements or a summary of the expected
testimony. The party must do so at least 15 days before
trial or at a later time that the court allows for good
cause.
(c) Effect on Other Rules. This rule does not limit
the admission or consideration of evidence under any
other rule.
COMMENTARY
COMMENTARY
referred to the oft-repeated observation that “the simply. “For more than three centuries it has now
common law is not immutable but flexible, and by been recognized as a fundamental maxim that
its own principles adapts itself to varying condi- the public ... has a right to every man’s evidence.
tions.” (Citations). The Senate Report accompany- When we come to examine the various claims of
ing the 1975 adoption of the Rules indicates that exemption, we start with the primary assumption
Rule 501 “should be understood as reflecting the that there is a general duty to give what testimony
view that the recognition of a privilege based on a one is capable of giving, and that any exemptions
confidential relationship ... should be determined which may exist are distinctly exceptional, being
on a case-by-case basis.” (Citations). The Rule thus so many derogations from a positive general
did not freeze the law governing the privileges of rule.” (Citations). Exceptions from the general rule
witnesses in federal trials at a particular point in disfavoring testimonial privileges may be justified,
our history, but rather directed federal courts to however, by a “public good transcending the
“continue the evolutionary development of testi- normally predominant principle of utilizing all
monial privileges.” (Citations). rational means for ascertaining truth.” (Citations).
The common-law principles underlying the rec- Jaffee, 518 U.S. at 8-9.
ognition of testimonial privileges can be stated
• marital privilege (725 ILCS 5/115-16; 735 ILCS was not relevant to a fact of consequence in the
5/8-801) (see the discussion under the headings first-degree murder allegations in the case);
related to Marital Privilege below); • voter’s privilege (735 ILCS 5/8-910);
• physician-patient privilege (735 ILCS 5/8-802) (see • language interpreter’s privilege (735 ILCS 5/8-911);
the discussion under the heading of Physician- • interpreter for the deaf and hard of hearing privi-
Client Privilege infra); lege (735 ILCS 5/8-912);
• privilege for statements made by a victim of a • mental health therapist-patient privilege (740 ILCS
sexual offense to rape crisis personnel (735 ILCS 110/10) See Reda v. Advocate Health Care, 199
5/8-802.1); Ill. 2d 47 (2002) (in applying the privilege, holding
• privilege for statements made by victims of violent that plaintiff “did not place his mental condition
crimes to counselors of such victims (735 ILCS at issue merely by claiming damages for what is a
5/8-802.2); neurological injury, i.e., stroke and/or other brain
• informant’s privilege (735 ILCS 5/8-802.3 and Ill. damage,” and noting that neurological injury is
S. Ct. R. 412(j)(ii)); not synonymous with psychological damage and
• clergy-penitent privilege (735 ILCS 5/8-803) (see neurological injury does not directly implicate
Doe v. The Catholic Diocese of Rockford, 2015 IL psychological damage). For two appellate court
App (2d) 140618, where plaintiff sought the iden- decisions discussing the breadth of confidentiality
tity of the writer of an allegedly defamatory letter, under the Mental Health and Developmental
the appellate court held that defendant could not Disabilities Confidentiality Act (740 ILCS 110/1, et
invoke the privilege because the letter writer had seq.), see Stuckey v. The Renaissance at Midway,
not made a “confession or admission,” as required 2015 IL App (1st) 143111), and Garton v. Pfeifer,
by the statute; see also People v. Peterson, 2017 2019 IL App (1st) 180872. See also Sparger v.
IL 120331, where the supreme court held that Yamini, 2019 IL App (1st) 180566 (discussing Reda
statements made by the defendant’s missing fourth and distinguishing the decisions in D.C. v. S.A.,
wife to a clergyman were not subject to the privi- 178 Ill. 2d 551 (1997), and Phifer v. Gingher, 2017
lege because the clergyman’s church had no rules Ill. App. (3d) 160170, in holding that the trial court
regarding counseling sessions and there were no erred in compelling a neuropsychologist’s report,
practices or precepts or customs of his church to because plaintiff did not see the neuropsychologist
which he was bound with respect to the confiden- for psychological issues but rather for a neurolog-
tiality of counseling sessions); ical injury, she did not place her mental condition
• union agent and union member privilege (735 in issue by claiming brain damage). For a recent
ILCS 5/8-803.5); decision allowing the identity of a patient’s mental
• confidential advisor (725 ILCS 5/804, added by health providers and the discovery of her psychi-
P.A. 99-826, eff. 8/21/15); atric records, in the context of a wrongful death
• reporter’s privilege (735 ILCS 5/8-901) (for a case action based on suicide, see Doe v. Great America
involving a defendant’s effort to divest a reporter LLC, 2021 IL App (2d) 200123, ¶ 21 (holding,
of the reporter’s privilege, see People v. McKee, “Unlike cases such as Reda and Sparger, which
2014 IL App (3d) 130696, where the appellate involved a brain injury without an intervening
court reversed the trial court’s divestiture order on suicide, a suicide directly implicates a psycholog-
the basis that the identity of the reporter’s source ical condition or psychological damage. ‘Bereft of
reason’ and ‘insanity’ implicate a psychological • restorative justice practices privilege (section
injury.”). Though related to FRE 501 and based 804.5 of the Code of Civil Procedure (735 ILCS
solely on common law, see Jaffee v. Redmond, 5/804.5), which was adopted in Public Act
518 U.S. 1 (1996) (explaining the rationale for and 102-0100, effective July 15, 2021) (providing a
recognizing, under FRE 501, the appropriateness privilege for participation in restorative justice
of a privilege protecting confidential communica- practices by ensuring that anything said or done
tions between a psychotherapist (a licensed clini- during the practice, or in anticipation of or as a
cal social worker) and her patient, thus protecting follow-up to the practice, is privileged and may
communications between them from compelled not be used in any future proceeding unless the
disclosure in a federal civil action). privilege is waived by the informed consent of the
• Medical Studies Act (735 ILCS 8-2101, et seq.; party or parties covered by the privilege).
see Eid v. Loyola University Medical Center, 2017 See also Razavi v. Walkuski, 2016 IL App (1st) 151435
IL App (1st) 143967 (holding that the confiden- (holding that the absolute privilege that applies to reporting
tiality provisions of the Act apply to information crimes to law enforcement applies to a college student’s report
generated by a designee of the peer review com- to campus security of on-campus sexual violence); and the
mittee for the use of the peer review committee later decision in Razavi v. School of the Art Institute of Chicago,
in the course of internal quality control); see also 2018 IL App (1st) 171409 (offering rationale for again holding
Mnookin v. Northwest Community Hospital, 2018 that absolute privilege applies where college students report
IL App (1st) 171107 (in medical malpractice and on-campus sexual violence to campus security).
wrongful death action, citing the Act and decisions Examples of Common-Law Privileges
in reversing friendly contempt for hospital’s refusal The attorney-client privilege is an example of a com-
to tender court-ordered discovery). mon-law privilege — the oldest of the privileges for confi-
Additional statutory privileges are contained within chapter dential communications — one that is also prescribed by the
225 of the Illinois Compiled Statutes, entitled “Professions, supreme court through the Rules of Professional Conduct (RPC
Occupations and Business Operations.” They include: Rule 1.6). See also Swidler & Berlin v. United States, 524 U.S.
• clinical psychologist privilege (225 ILCS 15/5); 399 (1998) (holding the death of the holder of the privilege
• licensed clinical social worker or licensed social does not terminate the attorney-client privilege). See also Ill.
worker privilege (225 ILCS 20/16(1)(b)); S. Ct. R. 412(j)(ii) and Ill. S. Ct. R. 201(b)(2), which prohibit
• licensed marriage and family therapist privilege discovery of privileged information, including matters subject
(225 ILCS 55/70); to the attorney-client privilege and work-product protection.
• licensed professional counselor or licensed clin- See also the definitions for both “attorney-client privilege” and
ical professional counselor privilege (225 ILCS “work-product protection” provided in IRE 502(f).
107/75); For an example of the non-application of the attorney-cli-
• licensed genetic counselor privilege (225 ILCS ent privilege, see People v. Peterson, 2017 IL 120331, ¶ 63,
135/90); where the supreme court held that statements made by the
• licensed or registered certified public accountant defendant’s missing fourth wife to an attorney who declined to
privilege (225 ILCS 450/27; see Brunton v. Kruger, represent her were not privileged and were properly admitted
2015 IL 117663 (holding that the privilege, as an into evidence.
attribute of the accounting profession, is that of the For a comprehensive analysis of the adoption and application
accountant and not the client). in Illinois of the protection provided by the “common-interest
doctrine” (also referred to as the “common-interest exception” Selby is mandatory reading for the issues described above,
or “common-interest rule”), an analysis that is a must-read for but also for its discussion of issues not resolved and for guid-
its rationale and application of the doctrine in both civil and ance concerning the need for a privilege log under Ill. S. Ct. R.
criminal cases, see Selby v. O’Dea, 2017 IL App (1st) 151572. 201(n).
In that decision, the appellate court explicitly adopted the For the “attorney litigation privilege,” see three relevant
common-interest doctrine for Illinois as an exception to the appellate court decisions that provide discussions concerning
waiver of privilege rule (and not as a separate “privilege”), thus that privilege: Bedin v. Northwestern Memorial Hospital, 2021
protecting attorney-client privilege and attorney work-product IL App (1st) 190723; Scarpelli v. McDermott Will & Emory LLP,
protection for parties with a common interest in litigation 2018 IL App (1st) 170874; and O’Callaghan v. Satherlie, 2015
against a third party, where privileged information is shared IL App (1st) 142152.
between parties with a common interest in the litigation. Exceptions to Attorney-Client Privilege
In considering the scope of the protection provided by the There are exceptions to the attorney-client privilege. One of
common-interest doctrine, Selby addressed two issues, the first them is the common-interest doctrine, usually invoked to pre-
of which was “whether the parties sharing a ‘common interest’ serve privilege (see the discussion of Selby above) but also used
must be perfectly aligned in all respects or whether it suffices to defeat a claim of privilege where parties who once shared a
that they share some common interest in defeating a litigation common interest (usually between insurer and insured) become
opponent.” Selby, at ¶ 77. Based on a review of numerous hostile. In Illinois, the leading case on that exception is Waste
authorities, the appellate court held that perfect alignment is Management, Inc. v. International Surplus Lines Insurance Co.,
not required; the parties need not be aligned on every issue. 144 Ill. 2d 178 (1991) (in addition to holding that a coopera-
The second issue addressed was “which statements, pre- tion agreement in the insurance contract imposed a duty on the
cisely, are covered by the common-interest exception to the insureds to assist in the conduct of litigation, holding that an
waiver rule.” Id. In answering that question, the appellate insured and an insurer shared a common interest in defending
court listed the following scenarios where the protection of the against litigation, so that the attorney-client privilege did not
common-interest doctrine applies: bar discovery by the insurer concerning communications or
• Communications between attorneys representing documents of the insured and its counsel, which were created
parties with common interests; in defense of two previously settled lawsuits, in a subsequent
• Communications between a party and another coverage dispute relating to one of those suits).
party’s attorney; In its most recent decision involving the common interest
• Communications between a party and that party’s doctrine, the supreme court held, in Robert R. McCormick
attorney with the other party’s attorney; Foundation v. Arthur J. Gallagher Risk Management Services,
• Communications during a joint conference involv- Inc., 2019 IL 123936, that there was no insurer-insured rela-
ing the parties and their attorneys. tionship between the parties where the plaintiffs brought suit
The appellate court listed those scenarios because they were against an insurance broker based on the broker’s negligence in
relevant to the case under review. Not addressed, because the failing to procure appropriate insurance coverage. The supreme
issue was not relevant to the case, was “whether the com- court distinguished its holding in Waste Management, where it
mon-interest doctrine protects communications directly from had expanded the common interest doctrine “to the situation
one party to the other party in common interest,” where no involving two parties who do not consult the same lawyer but
attorney is present. Id. at ¶ 97. That question awaits separate who are in a ‘special relationship’ so that they could be treated
appellate review. as if they did retain the same counsel.” McCormick Foundation,
at ¶ 30. Unlike in Waste Management, where it had held that
the insurer and insured had a special relationship and were in “(1) Where legal advice of any kind is sought (2)
privity of contract and the insurer had a duty to indemnify its from a professional legal adviser in his capacity
insured for the insured’s negligence, the court reasoned that as such, (3) the communications relating to that
here the insured sought indemnification not for the insurer’s purpose, (4) made in confidence (5) by the client,
negligence but for the negligence of its broker. Id. at ¶¶36-37. (6) are at his instance permanently protected (7)
The supreme court therefore reversed the appellate court’s from disclosure by himself or by the legal adviser,
affirmance of the circuit court’s order compelling the insureds (8) except the protection be waived.” Radojcic, at
to produce discovery of privileged information. ¶39.
In Ross v. Illinois Central Railroad Company, 2019 IL App The court then went on to explain the rationale for the
(1st) 181579, an appeal from a good faith finding that a set- application of the crime-fraud exception:
tlement between the plaintiff and his doctor against whom the “The rationale underlying the crime-fraud excep-
defendant had filed a contribution claim, the defendant made tion is intimately connected to the nature of the
discovery requests seeking all communications between the attorney-client relationship. As we explained
plaintiff, his doctor, and their attorneys. Although noting that in [In re] Decker, [153 Ill. 2d 298 (1992)], ‘in
the plaintiff and the doctor had not entered any agreements seeking legal counsel to further a crime or fraud,
relating to the defense of the case, the circuit court ruled that the client does not seek advice from an attorney
they shared common interests, and it denied the requested in his professional capacity.’ [Citation]. The client
discovery. In reversing the circuit court’s ruling, the appellate either conspires with the attorney or deceives the
court held: attorney. In the former case, the privilege will not
“Even when a common interest exists between apply because it cannot be the attorney’s business
parties, it is clear to us that the client must, at the to further any criminal object. In the latter case,
time of disclosure, have an agreement with the the privilege does not apply because the attorney’s
receiving party that that party will treat the infor- advice has been obtained by a fraud.” Radojcic,
mation as privileged. A disclosure in the absence at ¶42.
of such an agreement is simply inconsistent with Note that, as the supreme court pointed out, the crime-
a desire to maintain the confidentiality of the fraud exception is focused on the intent of the client, and not
privileged communication.” Ross, at ¶44. the legitimacy of the services provided by the attorney, who
An exception to the waiver of attorney-client privileged might be completely innocent of wrongdoing. Id. at ¶ 49. The
information is addressed in the Center Partners decision, pro- court pointed out that the holding in Mueller Industries, Inc.
vided in the Author’s Commentary on Ill. R. Evid. 502, where v. Berkman, 399 Ill. App. 3d 456 (2010), was flawed because
subject-matter waiver of attorney-client communications it required a prima facie showing before the trial court could
is discussed in the context of both judicial and extrajudicial conduct an in camera hearing (Radojcic, at ¶ 62). The court
proceedings. also held that an in camera hearing is not indispensable to a
Another — the crime-fraud exception — is discussed in showing that the crime-fraud exception applies. Id. at ¶ 60.
People v. Radojcic, 2013 IL 114197, where the supreme court Finally, and perhaps most important, the supreme court pro-
held that the State had met its evidentiary burden for the vided this standard in determining whether the crime-fraud
application of the crime-fraud exception to the attorney-client exception applies:
privilege. The court initially noted that it had earlier recognized “[T]he proponent of the crime-fraud exception
the essential elements for the creation and application of the must present evidence from which a prudent
attorney-client privilege: person would have a reasonable basis to suspect
(1) the perpetration or attempted perpetration of a State to appear and participate in the in camera hearing” (id. at
crime or fraud, and (2) that the communications ¶33), and citing Manuel in holding it was error for the defense
were in furtherance thereof.” Id. at ¶ 44, quoting to be excluded while the State was present for the in camera
Decker, 153 Ill. 2d at 322 (internal quotation hearing); People v. Palmer, 2017 IL App (1st) 151253 (trial court
marks omitted). erred in denying surveillance location where officer testified
For a recent application of the crime-fraud exception, see he was concealed in a vacant lot by vegetation and defendant
In re Marriage of Stinauer, 2021 IL App (3d) 190692 (holding properly sought to learn the location to determine whether the
that the trial court erred in denying respondent’s section vegetation also impaired officer’s ability to observe defendant’s
2-1401 hearing without holding an evidentiary hearing, where conduct); People v. Sanders, 2019 IL App (1st) 160718 (empha-
respondent sufficiently alleged the crime-fraud exception to the sizing that only the trial court, the relevant police officer, and
attorney-client privilege). the court reporter participated in the in camera proceeding,
Secret-Surveillance-Location Privilege thus distinguishing the case from In re Manuel M. and Jackson
Another example of a common-law privilege, one recog- and also distinguishing the facts in Palmer and pointing out the
nized by the appellate court as a qualified privilege in the trial court’s considerable leeway in defendant’s cross-exam-
context of a criminal case, is the secret surveillance location ination of the officer, holding the trial court properly denied
privilege. To invoke the privilege, the State has the burden revelation of the surveillance location).
of proof that the surveillance location was either on private Marital Privilege Statutes
property with permission of the owner or in a useful location There are separate Illinois statutes on marital privilege for
whose utility would be compromised by disclosure. See criminal and civil cases. The statute for criminal cases is in
People v. Price, 404 Ill. App. 3d 324 (2010) (holding that the section 115-16 of the Criminal Code of Procedure of 1963 (725
privilege “is based on and evolved from the related ‘informant’s ILCS 5/115-16); the statute for civil cases is in section 8-801 in
privilege,’” and that its purpose is “to protect sources from the Code of Civil Procedure (735 ILCS 5/8-801). With slightly
retaliation and to encourage their continuing cooperation with different phrasing, both statutes identically provide that hus-
law enforcement”). band and wife may testify for or against each other, provided
See also People v. Reed, 2013 IL App (1st) 113465 (dis- that neither may testify as to any communication or admission
cussing the privilege and holding that the trial court did not made by either of them to the other or as to any conversation
abuse its discretion in precluding disclosure of the officer’s between them during marriage, except...
location); People v. Flournoy, 2016 IL App (1st) 142356 (noting What follows the ellipses differs. In the criminal statute, the
the need for a transcript of the in camera hearing and reversing exception is:
application of the surveillance privilege because the trial court “in cases in which either is charged with an offense
abused its discretion in not considering factors that would have against the person or property of the other, in case
weighed in favor of disclosure of the surveillance location); of spouse abandonment, when the interests of
In re Manuel M., 2017 IL App (1st) 162381 (holding that the their child or children or of any child or children in
respondent’s rights to effective cross-examination, confronta- either spouse’s care, custody, or control are directly
tion, and a public trial were violated where the trial court held involved, when either is charged with or under
an in camera hearing with only the police officer and state’s investigation for an offense under Section 11-1.20,
attorney and allowed the state’s attorney to argue outside the 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14,
presence of the respondent and his counsel); People v. Jackson, 12-14.1, 12-15, or 12-16 of the Criminal Code of
2017 IL App (1st) 151779 (noting that the appellate court “has 1961 or the Criminal Code of 2012 and the victim
been less than clear about whether it is permissible for the is a minor under 18 years of age in either spouse’s
care, custody, or control at the time of the offense, “First, the communication must be an utterance or
or as to matters in which either has acted as agent other expression intended to convey a message.
of the other.” Second, the message must be intended by the
In the civil statute, the exception is: communicating spouse to be confidential in that it
“in actions between such husband and wife, and was conveyed in reliance on the confidence of the
in actions where the custody, support, health marital relationship.” Trzeciak, at ¶44.
or welfare of their children or children in either The court concluded that the testimony of the defendant’s
spouse’s care, custody or control is directly in wife concerning his conduct (beating her, tying her up, and
issue, and as to matters in which either has acted other activity) was not barred by the marital privilege. Trzeciak,
as agent for the other.” at ¶ 48. The court then concluded that the defendant’s threats
Not surprisingly, the exceptions provided in the criminal were not confidential communications, citing numerous cases
statute relate to criminal behavior against the spouse or chil- from other jurisdictions that placed special emphasis on the
dren for whom they are responsible, while those in the civil mutual trust and confidence in the marriage relationship. Three
statute relate to matters involving actions between the spouses justices specially concurred in the judgment, dissenting on the
(primarily related to dissolution of the marriage), children for denial of reconsideration, based on their view that prior Illinois
whom they are responsible, or where one spouse acts as the decisions relating to confidential communications justified
agent of the other. the court’s holding, without the need to rely on out-of-state
Though not provided by statute, the federal marital privilege decisions that placed special emphasis on the health and status
is provided in Trammel v. United States, 445 U.S. 40 (1980) (in of the marriage.
modifying its previous decision in Hawkins v, United States, In People v. Garner, 2016 IL App (1st) 141583, ¶¶ 37-46,
358 U.S. 74 (1958), providing historical context for the privi- the appellate court also addressed issues related to the mar-
lege, and in explaining and applying FRE 501, ruling that the ital communication privilege in section 115-16 of the Code
marital privilege is “modified so that the witness-spouse alone of Criminal Procedure. In Garner, the defendant, who was
has a privilege to refuse to testify adversely; the witness may charged with murdering her six-year-old daughter after a tele-
be neither compelled to testify nor foreclosed from testifying.”) phone conversation with her husband about the status of their
marriage, contended that the trial court had improperly admit-
Decisions on Marital-Communication Privilege: Sanders, Trzeciak,
and Appellate Court Decisions ted the testimony of her husband about their conversation—a
In People v. Sanders, 99 Ill. 2d 262 (1983), the supreme conversation which formed the basis of the State’s evidence
court refused to extend the marital privilege to conversations regarding the defendant’s motive for killing their daughter.
between parent and child. Construing the applicable language of the statutory exception,
In People v. Trzeciak, 2013 IL 114491, the supreme court “when the interests of their child or children or of any child or
reversed the decision of a majority panel of the appellate court, children in either spouse’s care, custody, or control are directly
which had held that the marital privilege, provided for in crimi- involved,” and other parts of the statute, the appellate court
nal cases by section 115-16 of the Code of Criminal Procedure rejected the defendant’s contentions that the conversation
of 1963 (725 ILCS 5/115-16), required the exclusion of the was not admissible because the conversation was not about
testimony of the defendant’s battered wife about threats made their daughter and it did not concern their child’s interests.
to her by her husband against her and the murder victim. The The court reasoned that it “is evident from the plain text of
supreme court first noted that, for a communication between the exceptions, which by their terms apply in ‘cases,’ ‘matters,’
spouses to fall within the marital privilege, two elements must and, as particularly relevant here, ‘when,’ due to the nature of
be satisfied:
the proceeding at hand, the ‘interests’ of the spouse’s children “Section 8-802 of the Code of Civil Procedure
are ‘directly involved.’” Garner, at ¶41. provides that ‘[n]o physician or surgeon shall be
In People v. Gliniewicz, 2018 IL App (2d) 170490, the State permitted to disclose any information he or she
sought to introduce email and text messages between the may have acquired in attending any patient in a
now-deceased husband and his now-indicted wife, messages professional character, necessary to enable him or
that were taken from the deceased husband’s cell phone and her professionally to serve the patient.’ The statute
that allegedly contained evidence of the criminal conduct of then lists 14 situations in which the privilege does
both. Before remanding the case to the circuit court for the not apply. The physician-patient privilege exists
State’s reopening of proofs on the State’s contention that the to encourage disclosure between a doctor and a
defendant had waived the privilege after the defendant’s suc- patient and to protect the patient from invasions
cessful motion in limine, the appellate court made three rulings of privacy. The purpose of the privilege is to
relevant to the marital-communication privilege of section 115- encourage full disclosure of all medical facts by
16. First, in applying the “third-party exception” to the privilege the patient in order to ensure the best diagnosis
in People v. Simpson, 68 Ill. 2d 276 (1977), the court held that and outcome for the patient. The legislature has
in this case the privilege had not been waived because no recognized that patients have an interest in main-
other party was present for or heard or learned of the commu- taining confidentiality in their medical dealings
nications, even by interception or through loss or misdelivery. with physicians.” Palm, at ¶16 (citations omitted).
Second, even though a “joint-criminal-enterprise” exception Palm was a personal injury case, involving a defen-
has been adopted in other jurisdictions, neither earlier appel- dant-driven vehicle striking the plaintiff-pedestrian. The issue
late court decisions nor the General Assembly has adopted on appeal was from a contempt order imposed on the defense
the exception in Illinois. Third, the appellate court refused to attorney for refusing to answer two interrogatory questions,
expand the “agency” exception to the privilege because the which the plaintiff alleged were based on a Facebook posting
indictment alleged that the husband and the defendant were that the defendant was legally blind and had a few other colli-
co-conspirators. As noted, the case was remanded for evidence sions. One of the interrogatories was for the name and address
on the State’s contention that the privilege had been waived. of any physician or health care professional who performed
For an appellate court decision that provides the rationale an eye-examination on the defendant in the last five years,
for affirming the admission of two statements made by the and another interrogatory was for the name of a physician or
defendant to her estranged husband about her boyfriend’s other health care professional who examined and/or treated the
having killed the deceased in a first degree murder case, see defendant within the last ten years. In determining whether the
People v. Carr-McKnight, 2020 IL App (1st) 163245, ¶¶85-93. imposed contempt was proper, Palm’s specific focus was on
For a relevant discussion concerning the separate issue the meaning of “an issue” in section 8-802(4), the statute that
of witness competency or witness disqualification, see the provides that the physician-patient privilege does not apply in
Author’s Commentary on Ill. R. Evid. 601. any action “wherein the patient’s physical or mental condition
Physician-Patient Privilege is an issue.”
Section 8-802 of the Code of Civil Procedure (735 ILCS The appellate court had held that, because the defendant
5/8-802) provides the statutory basis for the physician-patient had not put his health in issue and the plaintiff could not waive
privilege, which did not exist under common law. The supreme someone else’s privilege, the section 8-802(4) exception did
court decision in Palm v. Holocker, 2018 IL 123152, provides a not apply. Noting, however, that the plaintiff had not alleged
succinct summary of the statute and its rationale: the defendant’s vision problems as a cause of the accident and
that the defendant had not invoked vision problems in defense,
and noting further the “legislature’s intent in enacting section In People v. Bons, 2021 IL App (3d) 180464, a prosecution
8-802(4) is not clear, and the cases interpreting that section are for predatory criminal sexual assault of a five-year-old girl who
inconsistent in applying it,” the supreme court stated: was diagnosed with the sexually transmitted disease of chla-
“we determine that the issue of whether a plaintiff mydia, the trial court admitted evidence, over the defendant’s
may put a defendant’s medical condition in issue objections, that the defendant had been tested for and also
for purposes of section 8-802(4) is ultimately not received a diagnosis of chlamydia. The issue for the appellate
presented by the facts of this case and that the court concerned whether the defendant’s diagnosis was prop-
appellate court said more than it needed to in erly admitted, as contended by the State, as an exception to
resolving the appeal. We need not resolve whether the physician-patient privilege under sections 8-802(4) and
a plaintiff may put a defendant’s medical condition 8-802(7) of the Code of Civil Procedure (735 ILCS 5/8-802(4)),
at issue so as to waive a defendant’s privilege under (7)). Noting that several appellate decisions allowed the 8-802(4)
section 8-802(4) because, on the record before us, exception, the court distinguished those cases because they
plaintiff has not put defendant’s medical condition included, as an element of the offense, the defendant’s physical
at issue.” Id. at ¶24. or mental state. But this case, the appellate court held, did not
Thus, Palm affirmed the decision of the appellate court, contain such an element. Applying the Palm rationale, the court
but made it clear that, because the “plaintiff had not put held that the 8-802(4) exception did not apply in this case,
defendant’s medical condition at issue, it was not necessary and the evidence of the defendant’s chlamydia diagnosis was
for the appellate court to decide that issue.” Id. at ¶ 34. And it therefore improperly admitted. Regarding the section 8-802(7)
urged “the legislature to address section 8-802(4) and to make exception to the physician-client exception—an exception that
its intentions clear. Specifically, the legislature should clarify applies to “actions, civil or criminal, arising from the filing of
how something becomes ‘an issue’ for purposes of this section, a report in compliance with the [Abuse and Neglected Child
whether one party may put another party’s physical or mental Reporting] Act”—the appellate court noted “there is no indica-
condition at issue, and if the rule is any different for civil and tion that defendant’s medical records regarding his chlamydia
criminal cases.” Id. diagnosis and treatment arose from the DCFS investigation and
In addition to leaving open for now the specific question report.” Bons, at ¶44 (emphasis by the court). Thus, the excep-
of whether a party can place in issue another party’s medical tion did not apply under section 8-802(7), and the defendant’s
condition, another holding in Palm should be noted. The defen- diagnosis was improperly admitted under that section as well.
dant had answered another interrogatory requesting informa- Notwithstanding those holdings, the court applied harmless
tion about “any medical and/or physical condition which error in affirming the defendant’s conviction.
required a physician’s report and/or letter of approval in order See also Doe v. Weinzweig, 2015 IL App (1st) 133424-B,
to drive.” In connection with this interrogatory, the supreme ¶¶ 29-32 (discussing the privilege and holding, as other cases
court reversed the order of the appellate court that required the had, that the physician-patient privilege does not apply to exam-
plaintiff to relinquish the defendant’s medical records that he inations ordered under Supreme Court Rule 215); and People v.
had received from the Secretary of State. The court reasoned Quigley, 2018 IL App (1st) 172560 (in an appeal from the denial
that the defendant had answered the interrogatory and did not of defendant’s petition to rescind statutory summary suspension
assert a privilege. It further reasoned that the defendant had of his driver’s license on the ground that a police officer did not
obtained his doctor’s report “not for the purposes of receiving have reasonable grounds to believe that defendant was driving
treatment but for maintaining his driving privileges.” Id. at ¶32. while impaired, because test results were not admitted into
It therefore held that the plaintiff was entitled to use the record evidence, the appellate court declined to determine whether
obtained from the Secretary of State. hospital test results related to defendant’s blood alcohol would
be admissible as substantive evidence in a statutory summary a police officer’s testimony regarding the blood alcohol test
suspension hearing under section 501.4 or section 501.4-1(a) results learned from a physician was properly admitted and the
of the Illinois Vehicle Code (the court noting that no published trial court properly considered those test results in determining
Illinois decision has addressed this exact question), but in whether reasonable grounds existed to believe that defendant
applying the exception to the physician-patient privilege in had been under the influence of alcohol while he was driving).
section 8-802(9) of the Code of Civil Procedure, holding that
Rule 502. Attorney-Client Privilege and Work Rule 502. Attorney-Client Privilege and Work
Product; Limitations on Waiver Product; Limitations on Waiver
The following provisions apply, in the circum- The following provisions apply, in the circum-
stances set out, to disclosure of a communication or stances set out, to disclosure of a communication or
information covered by the attorney-client privilege or information covered by the attorney-client privilege or
work-product protection. work-product protection.
(a) Disclosure Made in a Federal Proceeding or to (a) Disclosure Made in an Illinois Proceeding or to
a Federal Office or Agency; Scope of a Waiver. When an Illinois Office or Agency; Scope of a Waiver. When
the disclosure is made in a federal proceeding or to a the disclosure is made in an Illinois proceeding or to an
federal office or agency and waives the attorney-client Illinois office or agency and waives the attorney-client
privilege or work-product protection, the waiver extends privilege or work-product protection, the waiver extends
to an undisclosed communication or information in a to an undisclosed communication or information in
federal or state proceeding only if: any proceeding only if:
(1) the waiver is intentional; (1) the waiver is intentional;
(2) the disclosed and undisclosed communi- (2) the disclosed and undisclosed communi-
cations or information concern the same subject cations or information concern the same subject
matter; and matter; and
(3) they ought in fairness to be considered (3) they ought in fairness to be considered
together. together.
(b) Inadvertent Disclosure. When made in a (b) Inadvertent Disclosure. When made in an
federal proceeding or to a federal office or agency, the Illinois proceeding or to an Illinois office or agency, the
disclosure does not operate as a waiver in a federal or disclosure does not operate as a waiver in any proceed-
state proceeding if: ing if:
(1) the disclosure is inadvertent; (1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took (2) the holder of the privilege or protection took
reasonable steps to prevent disclosure; and reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to (3) the holder promptly took reasonable steps to
rectify the error, including (if applicable) following rectify the error, including (if applicable) following
Federal Rule of Civil Procedure 26(b)(5)(B). Supreme Court Rule 201(p).
(c) Disclosure Made in a State Proceeding. When (c) Disclosure Made in a Federal or Another
the disclosure is made in a state proceeding and is not State’s Proceeding or to a Federal or Another State’s
the subject of a state-court order concerning waiver, Office or Agency. When the disclosure is made in a
the disclosure does not operate as a waiver in a federal federal or another state’s proceeding or to a federal or
proceeding if the disclosure: another state’s office or agency and is not the subject
(1) would not be a waiver under this rule if it had of a court order concerning waiver, the disclosure does
been made in a federal proceeding; or not operate as a waiver in an Illinois proceeding if the
(2) is not a waiver under the law of the state disclosure:
where the disclosure occurred. (1) would not be a waiver under this rule if it had
(d) Controlling Effect of a Court Order. A federal been made in an Illinois proceeding; or
court may order that the privilege or protection is not
waived by disclosure connected with the litigation (2) is not a waiver under the law governing the
pending before the court—in which event the disclo- federal or state proceeding where the disclosure
sure is also not a waiver in any other federal or state occurred.
proceeding. (d) Controlling Effect of a Court Order. An Illi-
(e) Controlling Effect of a Party Agreement. An nois court may order that the privilege or protection is
agreement on the effect of disclosure in a federal pro- not waived by disclosure connected with the litigation
ceeding is binding only on the parties to the agreement, pending before the court—in which event the disclo-
unless it is incorporated into a court order. sure is also not a waiver in any other proceeding.
(f ) Controlling Effect of this Rule. Notwith- (e) Controlling Effect of a Party Agreement. An
standing Rules 101 and 1101, this rule applies to state agreement on the effect of disclosure in an Illinois pro-
proceedings and to federal court-annexed and federal ceeding is binding only on the parties to the agreement,
court-mandated arbitration proceedings, in the circum- unless it is incorporated into a court order.
stances set out in the rule. And notwithstanding Rule (f ) Definitions. In this rule:
501, this rule applies even if state law provides the rule (1) “attorney-client privilege” means the protec-
of decision. tion that applicable law provides for confidential
(g) Definitions. In this rule: attorney-client communications; and
(1) “attorney-client privilege” means the protec- (2) “work-product protection” means the pro-
tion that applicable law provides for confidential tection that applicable law provides for tangible
attorney-client communications; and material (or its intangible equivalent) prepared in
(2) “work-product protection” means the pro- anticipation of litigation or for trial.
tection that applicable law provides for tangible
material (or its intangible equivalent) prepared in
anticipation of litigation or for trial.
COMMENTARY
Supreme Court Rule 201(p). Asserting Privilege or Work ing party) took reasonable steps to prevent disclosure and to
Product Following Discovery Disclosure.
promptly rectify the error—including following Supreme Court
If information inadvertently produced in discovery
Rule 201(p) where the inadvertent disclosure occurred during
is subject to a claim of privilege or of work-product
discovery.
protection, the party making the claim may notify
For an example of a Seventh Circuit Court of Appeals
any party that received the information of the
decision addressing and applying FRE 502(b) which, like IRE
claim and the basis for it. After being notified, each
502(b), governs inadvertent disclosures of privileged commu-
receiving party must promptly return, sequester, or
nications or information, see Carmody v. Board of Trustees of
destroy the specified information and any copies;
the University of Illinois, 893 F.3d 397, 404-407 (7th Cir. 2018)
must not use or disclose the information until the
(holding that the district court properly ruled that plaintiff could
claim is resolved; must take reasonable steps to
not offer as evidence a document protected by attorney-client
retrieve the information if the receiving party dis-
privilege that the defense had inadvertently turned over to
closed the information to third parties before being
plaintiff in discovery).
notified; and may promptly present the informa-
Rule 502(c) addresses a disclosure that has been made
tion to the court under seal for a determination of
in a federal or another state’s proceeding. It provides that a
the claim. The producing party must also preserve
foreign-court disclosure that is “not the subject of a court order
the information until the claim is resolved.
concerning waiver” does not result in a waiver in an Illinois
Rule 4.4(b) of the Illinois Rules of Professional Conduct of proceeding if: (1) it would not be a waiver if it had occurred
2010
during an Illinois proceeding, or (2) did not constitute a waiver
Note that, consistent with the goals of IRE 502(b), Rule
in the foreign court where the disclosure occurred. Note that
4.4(b) of the Illinois Rules of Professional Conduct of 2010
the rule infers that if the foreign court has issued an order
provides: “A lawyer who receives a document relating to the
concerning waiver, that order applies. Note also that obtaining
representation of the lawyer’s client and knows that the docu-
a court order under Rule 502(d)—where the disclosure is not
ment was inadvertently sent shall promptly notify the sender.”
subject to a foreign court order concerning waiver—obviates
Subdivisions of IRE 502
the need to establish either of the two numbered conditions to
IRE 502, like its federal counterpart, addresses what disclo-
avoid waiver.
sures of attorney-client-privileged or work-product-protected
Rule 502(d) addresses the controlling effect of an Illinois
communications or information are required under certain
court order on the waiver of a privilege or protection. It pro-
circumstances where there is either an intentional or an inad-
vides that an Illinois court may issue an order that protects
vertent disclosure.
from disclosure privileged or protected matter pending before
Rule 502(a) addresses subject-matter waiver. It provides
the court that issued the order, while also ensuring that any
that, in an Illinois proceeding, the disclosure of privileged or
disclosure does not result in a waiver in any other proceeding.
protected information does not result in subject-matter waiver
This rule allows the parties to seek a court order that specifies
unless the waiver is intentional and the disclosed and undis-
the standard of care that must be followed to avoid waiver of
closed communications about the same-subject matter “ought
the privilege or protection. It allows even an order that provides
in fairness to be considered together.”
that no disclosure—regardless of the standard of care—results
Rule 502(b) addresses inadvertent disclosure. It provides
in a waiver. This important subdivision of IRE 502 provides for
that a party may avoid waiver by showing that the disclosure
a court order that would obviate many disputes related to the
made in an Illinois proceeding was inadvertent and that the
waiver of attorney-client privilege or work-product protection,
“holder of the privilege” (who is not necessarily the disclos-
as indicated in the final sentence related to Rule 502(c) in the
paragraph above, and in the final sentence related to Rule information is produced, including agreements reached under
502(e) in the paragraph below. Federal Rule of Evidence 502.”
Rule 502(e) addresses the controlling effect of a party agree- Note also that under Federal Rule of Civil Procedure 26(f)
ment on the waiver of a privilege or protection. It provides that (3)(D), “[a] discovery plan must state the parties’ views and
an agreement between the parties on the effect of disclosure in proposals on:” *** “(D) any issues about claims of privilege
an Illinois proceeding binds only the parties to the agreement, or of protection as trial-preparation materials, including—if the
“unless it is incorporated into a court order.” This rule validates parties agree on a procedure to assert these claims after pro-
agreements that occur in cases involving the discovery of duction—whether to ask the court to include their agreement
millions of paper documents or the enormous storage of infor- in an order under Federal Rule of Evidence 502.”
mation in databases, thus allowing, for example, “claw-back
Center Partners: Subject Matter Waiver in Judicial and
agreements,” where the parties agree to exchange information Extrajudicial Proceedings
with only a limited privilege review, with the producing party Note that IRE 502 addresses disclosures made in the context
able to “claw back” a produced privileged document; or of a “proceeding” or to an “office” or an “agency.” It says noth-
“quick peek agreements,” where the producing party allows ing about disclosures made in extrajudicial settings generally.
the requesting party to inspect documents that have not been That issue was addressed by the Illinois Supreme Court in
reviewed for privilege, with the producing party able to then Center Partners, Ltd. v. Growth Head GP, 2012 IL 113107, a
review and retain, on the basis of privilege, documents that the decision issued on November 29, 2012, the day after the court
requesting party seeks to have produced. Such agreements are adopted IRE 502.
designed to ensure that the disclosure of privileged or protected In Center Partners, the issue was whether the disclosure
information does not result in the waiver of the privilege or of attorney-client-privileged information during business
protection. Note, however, the advisability of having a court negotiations with third parties constituted a waiver not only
order under Rule 502(d), which would bind even those who are of the matters discussed at the negotiations, but also a broader
not parties to the agreement. subject matter waiver of related undisclosed information. In
Note that FRE 502(f) has no Illinois counterpart. The federal ordering the discovery of numerous attorney-client-privileged
rule has no application to Illinois proceedings. documents on the basis of the doctrine of subject-matter-waiver
Illinois’ IRE 502(f) provides the same definitions that are of related undisclosed information, the circuit court had con-
provided in FRE 502(g). IRE 502(f)(2) provides a definition of cluded that the doctrine applied to extrajudicial proceedings.
“work-product protection” that should be considered in con- The appellate court agreed. Both courts reasoned that there
junction with Supreme Court Rule 201(b)(2), which states that was no distinction between disclosures made in court-related
“[m]aterial prepared by or for a party in preparation for trial is proceedings and those made out-of-court.
subject to discovery only if it does not contain or disclose the On review, however, the supreme court reversed the
theories, mental impressions, or litigation plans of the party’s judgments of the circuit and appellate courts. In so doing, it
attorney.” acknowledged the propriety of subject matter waiver in the
context of judicial proceedings:
FRCP 16(b)(3)(B)(iv) and FRCP 26(f)(3)(D) As They Relate to
FRE 502 “Illinois has long recognized the doctrine of
Note that the permitted contents of scheduling orders subject matter waiver, with this court holding that
under Federal Rule of Civil Procedure 16(b)(3)(B)(iv) may: when a client voluntarily testifies and waives the
“include any agreements the parties reach for asserting claims privilege, such waiver ‘extends no further than the
of privilege or of protection as trial-preparation material after subject-matter concerning which testimony had
been given by the client.‘ (Emphasis added [by the
court].) People v. Gerold, 265 Ill. 448, 481 (1914). approach, in that a litigant should not be able to
Our appellate court has refined and elaborated on disclose portions of privileged communications
subject matter waiver: with his attorney to gain a tactical advantage in
‘Although voluntary disclosure of confidential litigation (the sword), and then claim the privilege
information does not effectively waive an attor- when the opposing party attempts to discover
ney-client privilege as to all other non-disclosed the undisclosed portion of the communication
communications that may have taken place or communications relating to the same subject
[citation], where a client reveals portions of her matter.” Center Partners, at ¶¶38-39.
conversation with her attorney, those revelations Having recognized the propriety of subject matter waiver in
amount to a waiver of the attorney-client privilege judicial proceedings, the supreme court reversed the judgments
as to the remainder of the conversation or com- of the circuit and appellate courts, concluding that extrajudicial
munication about the same subject matter.’ In re disclosures to third parties of attorney-client communications
Grand Jury January 246, 272 Ill. App. 3d 991, 997 does not waive the attorney-client privilege over private,
(1995) (citing People v. O’Banner, 215 Ill. App. 3d undisclosed attorney-client communications concerning the
778, 793 (1991)).’ same subject matter. The court held that “subject matter waiver
“The purpose behind the doctrine of subject matter does not apply to disclosures made in an extrajudicial context
waiver is to prevent partial or selective disclosure when those disclosures are not thereafter used by the client
of favorable material while sequestering the unfa- to gain a tactical advantage in litigation.” Center Partners, at
vorable. [Citation] *** Courts have characterized ¶76.
this reasoning as the “sword” and the “shield”
Rule 601. Competency to Testify in General Rule 601. General Rule of Competency
Every person is competent to be a witness unless these Every person is competent to be a witness, except
rules provide otherwise. But in a civil case, state law as otherwise provided by these rules, by other rules
governs the witness’s competency regarding a claim or prescribed by the Supreme Court, or by statute.
defense for which state law supplies the rule of decision.
COMMENTARY
before the filing of the complaint, the circuit court granted on a mat while exiting a car in the garage of the now-deceased
summary judgment to the defendant based primarily on the defendant. Summary judgment was granted in favor of the
Dead-Man’s Act. In reversing the grant of summary judgment, deceased defendant’s estate. The issue for the appellate court
the appellate court held that statements of the deceased drivers was whether the now-deceased defendant was in a position
to police officers did not violate the Dead-Man’s Act and were to see what caused the plaintiff to slip, which was dispositive
admissible “provided such statements are otherwise admissi- of whether the Dead-Man’s Act had been properly applied by
ble.” Id. at ¶33. The court reasoned that the statements made to the circuit court. The plaintiff contended that the now-deceased
police by defendant’s decedent were admissible as statements defendant was seated in her car when the accident occurred,
by a party opponent (see IRE 801(d)(2)(A)), and statements and thus she could not see what caused the plaintiff to trip.
made to police by plaintiff’s decedent immediately after the However, pointing out that at her deposition the now-deceased
accident were admissible as excited utterances (see IRE 803(2)). defendant had “answered ‘yes’ when asked if she saw plaintiff
The court reversed summary judgment and remanded the case fall” (Spencer, at ¶ 19), the appellate court held that the circuit
for further proceedings. court had properly ruled that plaintiff’s testimony was inadmis-
See also Peacock v. Waldeck, 2016 IL App (2d) 151043 (in sible under the Dead-Man’s Act, and that summary judgment
a personal injury action alleging that defendant rear-ended was therefore properly entered in favor of the defendant’s estate.
plaintiff’s car, before defendant died from a cause unrelated In In re Estate of Weber, 2021 IL App (2d) 200354, a case
to the accident, defendant answered the complaint admitting involving an attorney’s petition to obtain fees from the estate of
every allegation (including rear-ending plaintiff’s car), but the now-deceased wife in dissolution of marriage proceedings,
stating she had no knowledge whether plaintiff was stopped the appellate court reversed the circuit court’s denial of attorney
at a red light as alleged in plaintiff’s complaint, summary judg- fees based on the circuit court’s determination that the attorney
ment for the defendant was properly granted because plaintiff had a conflict of interest in representing both the now-deceased
could not testify about having stopped at a red light, and other person and her caregiver. The appellate court held that the
causes—such as an abrupt stop by plaintiff, road conditions, trial court improperly applied the Illinois Rules of Professional
or plaintiff’s possible mechanical problems—were possible but Conduct, which simply provides a framework for the ethical
could not be provided). practice of law, in determining the conflict of interest, because
See, too, State Farm Mutual Automobile Insurance Co. v. that determination was solely for the Attorney Registration
Plough, 2017 IL App (2d) 160307 (in this jury trial of a subro- and Disciplinary Commission (ARDC). The appellate court
gation case, holding that the testimony of the driver of a car that reasoned that the attorney was prevented by the Dead-Man’s
collided with the car of the defendant, who was under a legal Act from testifying about the deceased person giving him her
disability at the time of trial, was erroneously admitted, but consent to concurrent representation. Pointing out that the
because that testimony was merely cumulative of the properly Dead-Man’s Act “bars only that evidence the decedent could
admitted testimony of a police officer who testified that the have refuted” (Estate of Weber, at ¶ 26), the court noted that,
defendant had admitted to him that the light changed to red in an ARDC disciplinary proceeding, however, “the personal
as he approached the intersection and that he tried to stop but representative would be neither prosecuting or defending; thus,
lost control of his car and hit the plaintiff’s car, the improperly the Dead-Man’s Act would not apply and the attorney could
admitted testimony was duplicative of the properly admitted testify regarding the decedent’s giving of informed consent.”
testimony, and thus the judgment for the plaintiff-subrogee was Id. at ¶28.
affirmed). For a decision applying the exception to the Dead-Man’s Act
See also Spencer v. Wayne, 2017 IL App (2d) 160801. In found in section 8-201(d) (735 ILCS 5/8-201(d)), which reads,
that case, the plaintiff suffered injury from allegedly slipping “No person shall be barred from testifying as to any fact relating
to the heirship of a decedent,” see In re Estate of McDonald, to establish that the children who testified were incapable of
2021 IL App (2d) 191113, ¶¶73-86, petition for leave to appeal understanding the duty of a witness to tell the truth”), and Harris
allowed on May 26, 2021, Docket No. 126956, where the v. Thompson, 698 F.3d 609 (7th Cir. 2012) (in Illinois prosecu-
appellate court discussed the legislative and judicial history of tion, trial court erred in requiring defendant, as proponent of
that section, in holding that the trial court had erred in barring witness, to prove that five-year-old witness was competent to
the respondent’s testimony concerning her marriage to the testify). For an appellate court decision discussing the burden
decedent, who died intestate, as it related to her consequent of proof and both the rule and section 115-14, see People v.
right to heirship of his estate. As noted, the supreme court has Jackson, 2015 IL App (3d) 140300, ¶¶43-49.
granted PLA in McDonald, so it will have the final word on the See also section 115-16 of the same Code (725 ILCS 5/115-
issue. 16) as well as section 8-101 of the Code of Civil Procedure
Statutes and Cases on Competency of a Witness (735 ILCS 5/8-101), both of which make admissible evidence
For a statute providing criteria for judging witness compe- from an interested witness or a witness with a criminal con-
tency in a criminal case, see section 115-14 of the Code of viction, such status being relevant only to the weight of the
Criminal Procedure of 1963 (725 ILCS 5/115-14). Note that evidence. Both the second paragraph of section 115-16 of the
the statute provides that “[e]very person, irrespective of age, is Code of Criminal Procedure and section 8-801 of the Code
qualified to be a witness and no person is disqualified to testify of Civil Procedure (735 ILCS 5/8-801) address what is and is
to any matter,” unless he or she is “[i]ncapable of expressing not admissible under the spousal privilege. See also People
himself or herself concerning the matter so as to be understood” v. Garcia, 97 Ill. 2d 58, 74 (1983) (degree of intelligence and
or “[i]ncapable of understanding the duty of a witness to tell the understanding of a child, and not the child’s chronological age,
truth.” determines capacity to testify as a witness).
Note, too, that the statute’s presumption of competency For an appellate court decision discussing various issues
places the burden of proof on the party challenging compe- concerning the competency of a witness under IRE 601, see
tency. See section 115-14(c) and People v. Hoke, 213 Ill. App. People v. Jackson, 2015 IL App (3d) 140300, ¶¶42-49.
3d 263, 272 (1991) (holding that it was the defendant’s “burden
Rule 602. Need for Personal Knowledge Rule 602. Lack of Personal Knowledge
A witness may testify to a matter only if evidence is A witness may not testify to a matter unless evidence
introduced sufficient to support a finding that the wit- is introduced sufficient to support a finding that the
ness has personal knowledge of the matter. Evidence to witness has personal knowledge of the matter. Evidence
prove personal knowledge may consist of the witness’s to prove personal knowledge may, but need not, consist
own testimony. This rule does not apply to a witness’s of the witness’ own testimony. This rule is subject to the
expert testimony under Rule 703. provisions of Rule 703, relating to opinion testimony
by expert witnesses.
COMMENTARY
Rule 603. Oath or Affirmation to Testify Truthfully Rule 603. Oath or Affirmation
Before testifying, a witness must give an oath or Before testifying, every witness shall be required to
affirmation to testify truthfully. It must be in a form declare that the witness will testify truthfully, by oath
designed to impress that duty on the witness’s con- or affirmation, administered in a form calculated to
science. awaken the witness’ conscience and impress the witness’
mind with the duty to do so.
COMMENTARY
COMMENTARY
Rule 605. Judge’s Competency as a Witness Rule 605. Competency of Judge as Witness
The presiding judge may not testify as a witness at The judge presiding at the trial may not testify in
the trial. A party need not object to preserve the issue. that trial as a witness. No objection need be made in
order to preserve the point.
COMMENTARY
Rule 606. Juror’s Competency as a Witness Rule 606. Competency of Juror as Witness
(a) At the Trial. A juror may not testify as a witness (a) At the Trial. A member of the jury may not
before the other jurors at the trial. If a juror is called testify as a witness before that jury in the trial of the
to testify, the court must give a party an opportunity to case in which the juror is sitting. If the juror is called
object outside the jury’s presence. so to testify, the opposing party shall be afforded an
(b) During an Inquiry into the Validity of a Ver- opportunity to object out of the presence of the jury.
dict or Indictment. (b) Inquiry Into Validity of Verdict or Indict-
(1) Prohibited Testimony or Other Evi- ment. Upon an inquiry into the validity of a verdict
dence. During an inquiry into the validity of a or indictment, a juror may not testify as to any matter
verdict or indictment, a juror may not testify about or statement occurring during the course of the jury’s
any statement made or incident that occurred during deliberations or to the effect of anything upon that
the jury’s deliberations; the effect of anything on that or any other juror’s mind or emotions as influencing
juror’s or another juror’s vote; or any juror’s mental the juror to assent to or dissent from the verdict or
processes concerning the verdict or indictment. The indictment or concerning the juror’s mental processes
court may not receive a juror’s affidavit or evidence in connection therewith. But a juror may testify (1)
of a juror’s statement on these matters. whether any extraneous prejudicial information was
(2) Exceptions. A juror may testify about improperly brought to the jury’s attention, (2) whether
whether: any outside influence was improperly brought to bear
(A) extraneous prejudicial information was upon any juror, or (3) whether there was a mistake in
improperly brought to the jury’s attention; entering the verdict onto the verdict form. A juror’s
(B) an outside influence was improperly affidavit or evidence of any statement by the juror may
brought to bear on any juror; or not be received concerning a matter about which the
(C) a mistake was made in entering the verdict juror would be precluded from testifying.
on the verdict form.
COMMENTARY
I was “[f]orced into” it, “I suppose so,” “I don’t know See Banks, 982 F.3d at 1103–05 (finding coercion
how to answer that,” and “I feel like I need more time.” where judge “continu[ed] to press [the juror] for a differ-
United States v. Banks, 982 F.3d 1098, 1101 (7th Cir. ent answer,” polled the rest of the jury to expose that juror
2020). as the only holdout, and only then ordered further delib-
“Yes. With reasonable doubt.” Sincox v. United States, erations); [United States v.] Williams, 819 F.3d [1026 (7th
571 F.2d 876, 877 (5th Cir. 1978). Cir. 2016),] at 1033–35 (finding coercion where a lone
“It’s my verdict, but I am still in doubt.” United States juror unambiguously rejected the verdict but the court
v. Edwards, 469 F.2d 1362, 1366 (5th Cir. 1972). continued to twice poll the remaining jurors and then
“Yes, with a question mark.” United States v. McCoy, instructed the jury “to continue with their deliberations
429 F.2d 739, 741 (D.C. Cir. 1970). until they have reached a unanimous verdict”).
Lowe also provided a couple of Seventh Circuit decisions
where coercion was determined by the trial court in response
to a juror’s response:
court’s ruling, the supreme court cited decisions of the U.S. Rodriguez requires a clear statement of overt racial bias, which
Supreme Court and its own decisions, as well as those of the was not present in this case. Norwood, 982 F.3d at 1055-58,
appellate court, all of which led to the court’s ruling and all of Application of 735 ILCS 5/1106(b)
which is relevant to those who address a contention of a juror’s Although not directly relevant to the rule, the decision in
implied bias. Bosman v. Riverside Health System, 2016 IL App (3d) 150445,
In Pena-Rodriguez v. Colorado, 580 U.S. ___, 137 S. Ct. is worthy of note. In that case, the trial court interviewed a
855 (2017), two jurors provided affidavits that, during jury holdout juror and the foreman of the jury and, after determin-
deliberations in that criminal case, another juror had expressed ing that the holdout juror had withheld information during voir
anti-Hispanic bias toward the defendant and his alibi witness. dire examination, it excused the holdout and replaced her with
Noting the general rule against impeaching a jury verdict under an alternate juror. The jury was instructed to begin discussions
common law and under codified evidence rules (including anew and it soon reached a verdict. On review, the appellate
that of Colorado, which is substantially identical to the Illinois court held that the trial court had violated section 2-1106(b)
rule), the United States Supreme Court held that the Sixth of the Code of Civil Procedure (735 ILCS 5/2-1106(b)) in not
Amendment provides an exception to the no-impeachment excusing the alternative jurors when the jury retired to consider
rule for addressing racial bias in a jury verdict. The Court held its verdict. Holding that violation of that provision of the statute
that, “where a juror makes a clear statement that indicates he or does not give rise to reversible error without a showing of prej-
she relied on racial stereotypes or animus to convict a criminal udice, the appellate court held that prejudice was established
defendant, the Sixth Amendment requires that the no-impeach- here because the jurors knew of the interview of the holdout
ment rule give way in order to permit the trial court to consider juror and “they were then exposed to the outside influences of
the evidence of the juror’s statement and any resulting denial the juror inquiry, which suggested to them the reason for [the
of the jury trial guarantee.” Pena-Rodriguez, 137 S. Ct. at 869. juror’s] eventual replacement.” Bosman, ¶ 26. The judgment
Note that the holding in Pena-Rodriguez cannot be garnered was reversed and the case remanded.
from the wording of Rule 606(b). But the application of the rule
Supreme Court Resolution of Intradistrict Conflict on the Effect
(in both its federal and Illinois forms), where clear statements of Video Played for the Jury in the Courtroom in the Presence of
Judge, Attorneys, and Defendant, after Commencement of Jury
of racial bias are expressed by one or more jurors, violates the Deliberations
Sixth Amendment’s guarantee of a trial by an impartial jury. In Although not directly related to any codified evidence rule,
such cases, the Supreme Court’s interpretation of the constitu- it is important to be aware of the Illinois Supreme Court deci-
tion must prevail. sion in People v. Hollahan, 2020 IL 125091, and three prior
In United States v. Norwood, 982 F.3d 1032 (7th Cir. 2020), appellate court split decisions in the Third District resulting in
after the return of a guilty verdict, in a phone conversation in intradistrict conflicts about the propriety of playing a video—at
the presence of the defendant and his counsel and the pros- the request of the jury after jury deliberations had begun—in
ecutor, a juror informed the trial court that she felt pressure the courtroom in the presence of the jury, the judge, the
from the other jurors to return a guilty verdict. In upholding attorneys, and the defendant. In each case, all those present
the discretion of the trial court in not holding a full hearing merely viewed the requested video; and, consistent with the
on the validity of the verdict, the Seventh Circuit cited United judge’s instructions, no comments were allowed. The issue
States v. Daniels, 803 F.3d 335 (7th Cir. 2015) (see the discus- in each case was rooted in the fundamental tenet that “jury
sion of Daniels in the Author’s Commentary on Fed. R. Evid. deliberations shall remain private and secret,” an honored rule
606(b) just above), pointing out that the juror impeachment that “is intended to protect the jury from improper influence.”
exceptions contained in Rule 606(b) apply only where certain People v. Jones, 2019 IL App (3d) 160268, ¶23.
external pressure is present, and further pointing out that Pena-
The first decision to address the issue was People v. Johnson, the proceedings that occurred in the trial court, the supreme
2015 IL App (3d) 130610. Applying the principle that the court found that “defendant has demonstrated no prejudice
appellate court reviews outside jury intrusions for prejudicial attributable to ‘clear or obvious error’—for purposes of plain
impact, a court majority affirmed the defendant’s conviction, error review—in the way the trial court chose to proceed in this
holding that the record showed no evidence of prejudice . The case.” Id. at ¶23.
dissenting justice contended that the procedure employed by Subsequent to the supreme court decision in Hollahan,
the trial court presumptively caused a chilling effect on the in People v. Reynolds, 2021 IL App (1st) 181227, ¶¶ 67-75,
jury’s deliberations. during jury deliberations and at the jury’s request, the trial court
The second decision, which caused the split, was People allowed the jury to hear recordings of jail calls in the courtroom
v. Hollahan, 2019 IL App (3d) 150556. In that case, authored in similar fashion to the cases summarized above. There, the
by a justice not involved in Johnson but who was joined in appellate court applied Hollahan in rejecting the defendant’s
concurrence by the dissenting justice in that earlier case, the contention that the process followed by the trial court consti-
appellate court majority acknowledged that, in addition to tuted plain error by inhibiting the jurors’ deliberations.
Johnson, two other appellate court districts had declined to find Note that in People v. Cavitt, 2021 IL App (2d) 170149-B,
reversible error in similar circumstances (i.e., People v. Lewis, a case the supreme court remanded to the appellate court in
2019 IL App (4th) 150637-B, ¶¶ 97-100 (no error in similar the exercise of its supervisory authority based on its holding
replaying of 911 tape in courtroom); People v. Rouse, 2014 in Hollahan, the appellate court distinguished the holding in
IL App (1st) 121462, ¶¶ 78-79 (no error in similar courtroom Hollahan, and reversed defendant’s convictions and remanded
view of surveillance footage)). But the court majority found the case for retrial based on the trial court’s refusal to send a
structural error under the second prong of plain error analysis, surveillance video on a laptop computer to the jury room after
holding that the procedure followed by the trial court “clearly the jury requested the video during its deliberations, and based
inhibited the jurors’ deliberations and restrained their freedom on the trial court’s comments to the jury about not overempha-
of expression and action” (id. at ¶ 21) and “should be deemed sizing one piece of evidence and its limiting the jury’s view
presumptively prejudicial” (id. at ¶ 30). The dissenting justice, in the courtroom to a single viewing, where the video lacked
the author of Johnson, invoked that decision in his dissent. clear images and did not play in real time, and where the trial
The final split decision was People v. Jones, 2019 IL App court had itself reviewed the video numerous times and even
(3d) 160268. Noting the intradistrict conflict, the author of overturned an attempted murder verdict based on that review.
the majority decision—who authored Johnson and dissented Reasoning that the jury should have had unrestricted access
in Hollahan and was joined in concurrence by the justice based on those considerations, the appellate court held that the
who concurred in Johnson—followed Johnson’s reasoning by trial court’s actions had resulted in second-prong plain error.
reviewing the trial court’s procedure for prejudicial impact, Subsequent to all of the decisions described above, in People
concluding that the “record contains no indication that the v. McLaurin, 2021 IL App (3rd) 180122, the deliberating jury
presence of the nonjurors affected the jury’s viewing of the asked to listen to the audio recording of the statement given to
video.” Jones, at ¶ 27. The dissenting justice was the author of police by the victim of the defendant’s shooting, a statement
Hollahan. He invoked that decision in his dissent. previously entered into evidence to impeach the victim’s testi-
After granting leave to appeal the appellate court’s decision mony that the defendant was not involved in the shooting. The
in Hollahan, the supreme court reversed that decision in People audio was played in the courtroom a single time by a bailiff.
v. Hollahan, 2020 IL 125091. The court specifically rejected the In addition to the jury and the bailiff, the trial judge and the
notion that “deliberations, once begun, cannot be suspended court reporter were present. On plain error review on appeal,
by the trial court.” Id. at ¶ 25. Declining to find any error in the defendant contended that the procedure employed by the
trial court hindered the jurors’ ability to deliberate privately. the plain error rule—a rule that need not be invoked where a
Conceding that “the supreme court has found acceptable defendant preserves the issue by objecting and by including the
the practice employed by the court” in this case (id. at ¶ 12), issue in a posttrial motion. Whether or not a defendant objects,
the appellate court rejected that contention and affirmed the the trial court should be aware that deliberating jurors might be
defendant’s conviction. The author of Hollahan’s appellate improperly influenced or improperly restricted in its review. The
decision, who also authored McLaurin, concluded by asserting most obvious remedy for the trial court is to provide sufficient
that “best practice prescribes allowing the jury to listen to such means for the deliberating jury to control its own review of a
a recording outside the presence of anyone else.” Id. video in the jury room. If, however, only the courtroom allows
Note that, in each of the cases summarized above, the for such review, the most prudent course is for the trial judge to
defendant did not object to the procedure employed by the ensure that only jurors are present and that they are solely able
trial court. The analysis applied by the supreme court and the to operate and replay the device that allows playback.
appellate court thus was based on the propriety of applying
Rule 607. Who May Impeach a Witness Rule 607. Who May Impeach
Any party, including the party that called the witness, The credibility of a witness may be attacked by any
may attack the witness’s credibility. party, including the party calling the witness, except
that the credibility of a witness may be attacked by the
party calling the witness by means of a prior inconsistent
statement only upon a showing of affirmative damage.
The foregoing exception does not apply to statements
admitted pursuant to Rules 801(d)(1)(A), 801(d)(1)
(B), 801(d)(2), or 803.
COMMENTARY
State’s case, where he inconsistently testified that an incident professes a lack of memory regarding a prior statement, his
between defendant and the deceased shooting victim occurred testimony may be considered damaging.” In People v. Wilson,
at a different time and in a different place, and no gunshots were 2012 IL App (1st) 101038, ¶ 45, however, the First District
fired; and where he disavowed his prior signed statement and rejected that holding, concluding “that a witness’s professed
grand jury testimony which identified defendant and another lack of memory, standing alone, does not ‘affirmatively dam-
as the offenders, claiming that the prior signed statement was age’ a party’s case for the purpose of impeaching one’s own
a forgery). witness.” Later, in People v. Blakey, 2015 IL App (3d) 130719,
Lack of Memory Does Not Constitute “Affirmative Damage” ¶50, another panel of the Third District cited Wilson in holding
In People v. Leonard, 391 Ill. App. 3d 926, 933 (1994), the that “Leonard was incorrect.”
Third District of the appellate court held that “[w]hen a witness
Rule 608. A Witness’s Character for Truthfulness or Rule 608. Evidence of Character of Witness for
Untruthfulness Truthfulness or Untruthfulness
(a) Reputation or Opinion Evidence. A witness’s The credibility of a witness may be attacked or
credibility may be attacked or supported by testimony supported by evidence in the form of opinion or
about the witness’s reputation for having a character for reputation, but subject to these limitations: (1) the
truthfulness or untruthfulness, or by testimony in the evidence may refer only to character for truthfulness or
form of an opinion about that character. But evidence untruthfulness, and (2) evidence of truthful character
of truthful character is admissible only after the wit- is admissible only after the character of the witness for
ness’s character for truthfulness has been attacked. truthfulness has been attacked by opinion or reputation
(b) Specific Instances of Conduct. Except for evidence or otherwise.
a criminal conviction under Rule 609, extrinsic evi-
dence is not admissible to prove specific instances of
a witness’s conduct in order to attack or support the
witness’s character for truthfulness. But the court may,
on cross-examination, allow them to be inquired into
if they are probative of the character for truthfulness or
untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness
being cross-examined has testified about.
By testifying on another matter, a witness does not
waive any privilege against self-incrimination for tes-
timony that relates only to the witness’s character for
truthfulness.
F.3d 388, 394 (7th Cir. 2015). The court held that “[o]nce [the tions in order to evade federal reporting requirements. She was
prosecution witness] was confronted with the texts and effec- convicted by a jury of multiple counts of that offense, which
tively denied sending them, the door was opened to extrinsic were merged into one count for sentencing purposes, and she
evidence of the texts pursuant to Rule 613(b), contrary to the was sentenced to two years probation and ordered to sell her
district court’s understanding.” Id. newly purchased home and to forfeit to the government all the
Differences Between FRE 608(b) and FRE 609 proceeds of that sale, amounting to $67,060. The defendant,
The differences between FRE 608(b) and FRE 609 should be who emigrated from Russia in 2005 and married an American
noted. One difference is that FRE 608(b) gives discretion to the citizen whom she later divorced, garnered much sympathy
trial court to allow cross-examination of any witness (including from the judges who reversed her conviction and even from the
an accused) about specific acts of conduct related to truthful- dissenting judge. The majority referred to the defendant as “at
ness or untruthfulness, by applying the balancing test of Rule most a one-time offender who committed an unusually minor
403, which bars evidence if the prejudicial effect substantially violation” and expressed “serious doubts that the forfeiture of
outweighs probative value. FRE 609 also allows evidence of a her home’s entire $67,000 value comports with the ‘principle
felony conviction of a mere witness by applying the balancing of proportionality’ that is the ‘touchstone of the constitutional
test of Rule 403, but requires a different balancing test for an inquiry about the Excessive Fines Clause.’” The dissent referred
accused, one that shifts the burden by allowing the evidence of to the case as being an “overzealous prosecution for a technical
conviction only if its probative value outweighs its prejudicial violation of a criminal regulatory statute — the kind of rigid
effect. Another difference is that FRE 609 bars admission of and severe exercise of law-enforcement discretion that would
convictions more than 10 years old (with the exception pro- make Inspector Javert proud,” and stated that, “I would affirm,
vided for under FRE 609(b)). In contrast, FRE 608(b) has no although not without serious misgivings about the wisdom of
time-limit restriction. this prosecution.”
Perhaps the most significant difference between the two The majority found that the trial court abused its discretion
rules is that FRE 608(b) allows the admission of facts underlying in allowing the defendant to be cross-examined, under FRE
offenses, even where there has been no conviction or where 608(b), about false statements on her joint income tax return
evidence of a conviction has been barred. For example, the and the student aid forms she filed while attending nursing
trial court may bar evidence of a conviction under the exercise school. Her divorced husband testified that he completed the
of its discretion under FRE 609 or based on the conviction’s tax return and she testified that she had played almost no role
being time-barred under FRE 609(b), but still allow evidence in preparing it; and, as to the financial aid forms, there was
(sometimes referred to as “back-door” admission), not about evidence that the forms she completed allowed her to skip
the fact of conviction, but about the facts (the prior bad acts) questions about her assets that were irrelevant to her appli-
that underlie an event for which there either was or was not a cation. The majority concluded that the government did not
conviction (e.g., the trial court’s disallowing questions about a demonstrate a sufficient reason to believe that the defendant
15-year-old perjury conviction under FRE 609(b), but allowing actually lied, and held that the trial court therefore abused its
questions about the witness having lied under oath under FRE discretion in allowing cross-examination on the financial filings
608(b)). because the government did not provide a sufficient basis to
U.S. v Abair: Opposing Views on Application of FRE 608(b) believe the filings were probative of the defendant’s character
United States v. Abair, 746 F.3d 260, (7th Cir. 2014), pres- for truthfulness.
ents interesting opposing views concerning the application of The dissent, on the other hand, stressed the deferential stan-
FRE 608(b) and the standard of review on appeal. In that case, dard of review and the fact that, although the evidence gave rise
the defendant was prosecuted for structuring currency transac- to competing inferences, one permissible interpretation was
that the defendant provided false information on her financial filings and that the cross-examiner needed only to have a good
faith factual basis to support the proposed line of questioning.
Examples of Limited Permissible Inquiries Related to Credibility Chicago, 186 Ill. App. 3d 554, 562 (1989) (denial by plaintiff’s
Nevertheless, it should be noted that, for the purpose of expert witness during cross-examination that he was subject to
attacking general credibility, Illinois does allow inquiry con- pending medical disciplinary proceedings in another state was
cerning a witness’s prior wrongdoings that may be related to a collateral matter that bound defendant, thus rendering erro-
a possible bias, interest, or motive for giving false testimony, neous the admission of proof of the disciplinary proceedings
such as where a prosecution witness expects to receive a lesser for impeachment purposes).
sentence for his testimony. See People v. Bull, 185 Ill. 2d 179 Extrinsic Evidence of Specific Acts of Conduct Prohibited
(1998) (holding that, where evidence of arrest or commission In addition to not permitting inquiry concerning specific
of an offense is sought to be introduced, “the evidence that instances of conduct (except for the limited circumstances
is used must give rise to the inference that the witness has described above), and consistent with FRE 608(b), Illinois does
something to gain or lose by his or her testimony. Therefore, the not permit proof of specific instances of conduct by extrinsic
evidence used must not be remote or uncertain.”). Such inquiry evidence to support or attack a witness’s character for truthful-
also is allowed concerning a witness’s disreputable occupation ness. See People v. West, 158 Ill. 2d 155 (1994) (rejecting the
(see People v. Winchester, 352 Ill. 237, 244 (1933) (allowing argument that evidence of specific acts of untruthfulness should
cross-examination regarding witness’s operation of a “house of be admitted to impeach a child witness because the child was
prostitution”)), and a witness’s narcotics addiction either at the too young to have developed a reputation in the community);
time of testifying or at the time of the occurrence (see People v. People v. Williams, 139 Ill. 2d 1 (1990) (complainant’s seventh
Collins, 106 Ill. 2d 237, 270 (1985) (inquiry is proper because and eighth grade teachers could not testify at trial that she was
it goes to the witness’s credibility and the ability of the witness an “inveterate liar”); Podolsky and Assocs. L.P. v. Discipio, 297
to recall)). Ill. App. 3d 1014 (1998) (rejecting adoption of FRE 608(b) and
holding that the trial court properly refused to allow evidence
Required Acceptance of Answer to Question about Collateral
Matter of a lawyer’s suspension from the practice of law).
Consistent, however, with the federal rule and the discussion
Exceptions to the General Rule Prohibiting Evidence of Specific
in the heading just below, Illinois requires that an answer to a Acts of Conduct
question concerning a collateral matter (i.e., one not relevant That Illinois permits proof of specific instances of conduct
to a material issue in the case and sought to be introduced pursuant to certain criminal statutes should not be confused
only to contradict) must be accepted, and the impeachment with the fact that Illinois does not permit such evidence for
may not be completed by the presentation of extrinsic evidence establishing the truthfulness or untruthfulness of a witness.
(i.e., evidence other than the witness’s testimony). See Esser v. Examples of statutes that permit inquiry into specific instances
McIntyre, 169 Ill. 2d 292, 304-05 (1996) (failure to inquire of conduct, for propensity purposes, include those cited in IRE
about witness’s occupation as prostitute during evidence 404(b) and discussed in the author’s comments to that rule, as
deposition meant that, in absence of the witness, no inquiry well as those cited in IRE 413 and the author’s comments to
could be made on the subject at trial); Poole v. University of that rule.
Rule 609. Impeachment by Evidence of a Criminal Rule 609. Impeachment by Evidence of Conviction
Conviction of Crime
(a) In General. The following rules apply to attack- (a) General Rule. For the purpose of attacking the
ing a witness’s character for truthfulness by evidence of credibility of a witness, evidence that the witness has
a criminal conviction: been convicted of a crime, except on a plea of nolo
(1) for a crime that, in the convicting jurisdic- contendere, is admissible but only if the crime, (1)
tion, was punishable by death or by imprisonment was punishable by death or imprisonment in excess of
for more than one year, the evidence: one year under the law under which the witness was
(A) must be admitted, subject to Rule 403, convicted, or (2) involved dishonesty or false statement
in a civil case or in a criminal case in which the regardless of the punishment unless (3), in either case,
witness is not a defendant; and the court determines that the probative value of the
(B) must be admitted in a criminal case in evidence of the crime is substantially outweighed by the
which the witness is a defendant, if the probative danger of unfair prejudice.
value of the evidence outweighs its prejudicial (b) Time Limit. Evidence of a conviction under
effect to that defendant; and this rule is not admissible if a period of more than 10
(2) for any crime regardless of the punishment, years has elapsed since the date of conviction or of the
the evidence must be admitted if the court can release of the witness from confinement, whichever is
readily determine that establishing the elements of the later date.
the crime required proving—or the witness’s admit- (c) Effect of Pardon, Annulment, or Certificate
ting—a dishonest act or false statement. of Rehabilitation. Evidence of a conviction is not
(b) Limit on Using the Evidence After 10 admissible under this rule if (1) the conviction has been
Years. This subdivision (b) applies if more than 10 the subject of a pardon, annulment, certificate of reha-
years have passed since the witness’s conviction or release bilitation, or other equivalent procedure, and (2) the
from confinement for it, whichever is later. Evidence of procedure under which the same was granted or issued
the conviction is admissible only if: required a substantial showing of rehabilitation or was
(1) its probative value, supported by specific based on innocence.
facts and circumstances, substantially outweighs its (d) Juvenile Adjudications. Evidence of juvenile
prejudicial effect; and adjudications is generally not admissible under this
(2) the proponent gives an adverse party reason- rule. The court may, however, allow evidence of a juve-
able written notice of the intent to use it so that the nile adjudication of a witness other than the accused if
party has a fair opportunity to contest its use. conviction of the offense would be admissible to attack
(c) Effect of a Pardon, Annulment, or Certificate the credibility of an adult and the court is satisfied that
of Rehabilitation. Evidence of a conviction is not admission in evidence is necessary for a fair determina-
admissible if: tion of the issue of guilt or innocence.
(1) the conviction has been the subject of a (e) Pendency of Appeal. The pendency of an appeal
pardon, annulment, certificate of rehabilitation, or therefrom does not render evidence of a conviction
other equivalent procedure based on a finding that inadmissible. Evidence of the pendency of an appeal is
the person has been rehabilitated, and the person has admissible.
not been convicted of a later crime punishable by
death or by imprisonment for more than one year; or
COMMENTARY
tinguishing between a mere witness and a witness who is the Treatment of Defendants in Criminal Cases
accused, and without regard for whether the prior conviction Most appellate and supreme court cases that address the
was for an offense involving dishonesty or false statement. As proper application of the principles contained in what is now
noted above, FRE 609(a) provides a standard different for a codified in IRE 609(a) involve the admissibility of prior con-
witness who is the defendant, and no standard for admitting victions of defendants for impeachment purposes in criminal
proof of a dishonest act or false statement. cases.
Related Civil Statute Illinois decisions require that, in a criminal case, evidence of
In a civil case, section 8-101 of the Code of Civil Procedure a prior conviction of the defendant for impeachment purposes
(735 ILCS 5/8-101) provides that the interest of a witness “or must be proved through the introduction of a certified copy of
conviction may be shown for the purpose of affecting the cred- the judgment of conviction, and not through cross-examination
ibility of such witness; and the fact of such conviction may be of the defendant. See People v. Naylor, 229 Ill. 2d 584, 594
proved like any fact not of record, either by the witness himself (2008); People v. Coleman, 158 Ill. 2d 317, 337 (1994); People
or herself (who shall be compelled to testify thereto) or by any v. Flynn, 8 Ill. 2d 116 (1956). Thus, it would be improper for
other witness cognizant of such conviction, as impeaching a prosecutor in an Illinois trial court to ask the defendant in a
testimony, or by any other competent evidence.” criminal case a question similar to that propounded by the fed-
The Section 115-20 Propensity Exception eral prosecutor of a former Illinois governor: “Mr. Blagojevich,
Note that IRE 609 (like FRE 609) allows proof of a convic- you are a convicted liar, correct?”
tion for a prior offense only for impeachment purposes, i.e., In People v. Bey, 42 Ill. 2d 129 (1969), however, the supreme
to challenge the credibility of a witness. Such evidence is not court approved the cross-examination of the defendant, where
permitted to prove propensity. See, for example, the Seventh he had given incomplete testimony on direct examination
Circuit’s decision in Viramontes v. City of Chicago, 840 F.3d concerning his convictions. See also People v. Nastasio, 30
423 (7th Cir. 2016), where, although holding that the error was Ill. 2d 51 (1963). On the other hand, in People v. Harris, 231
cured by a curative instruction, the court was critical of defense Ill. 2d 582 (2008), where the defendant’s testimony on direct
counsel’s argument that the plaintiff’s earlier felony conviction examination opened the door to admission of his prior juvenile
reflected “his unwillingness to conform his conduct to the law.” adjudication, the supreme court reiterated its preference for
Nevertheless, Illinois has a statute, section 115-20 of the proof by certified documents in response to the defendant’s
Code of Criminal Procedure of 1963 (725 ILCS 5/115-20; see contention on appeal that he should have been cross-examined
Appendix C), that permits proof of prior convictions in speci- about the matter to allow him the opportunity to explain the
fied criminal cases to prove the propensity of a defendant to apparent inconsistency in his testimony.
commit any of the types of offenses listed in the statute against Nevertheless, despite the general rule that the State is
the same victim. The statute, not to be confused with the required to offer proof by the record of conviction and not
provisions of IRE 609, allows evidence of a prior conviction by cross-examining the defendant about the fact that he was
for domestic battery, aggravated battery committed against a convicted, violation of the rule does not require reversal. In
family or household member, stalking, aggravated stalking, People v. Long, 2018 IL App (4th) 150919, the appellate court
or violation of an order of protection “in a later prosecution noted that in People v. Madison, 56 Ill. 2d 476, 488 (1974), the
for any of these types of offenses when the victim is the same supreme court held that “ the presentation of a prior conviction
person who was the victim of the previous offense that resulted through cross-examination does not require reversal ‘unless
in the conviction of the defendant.” the error has deprived [the] defendant of substantial justice or
influenced the determination of his guilt.’” Long, at ¶ 91. In
applying that principle in the case at bar, the appellate court
found no error in the State questioning the defendant about his Preserving Error Regarding Admissibility Rulings
having been convicted of three separate offenses, holding that Averett and Patrick are authority for the principle that, to
“[t]he State presented strong evidence of defendant’s guilt, and preserve appellate review concerning error in the court’s
the record fails to reflect he sustained unfair prejudice due to denial of the defendant’s motion in limine to exclude proof of
the manner in which his prior convictions were admitted into a prior conviction, the defendant must testify – even where,
evidence.” Id. at ¶92. as in Averett, the court erred in arbitrarily refusing to consider
Requirement of a Judgment of Conviction a motion in limine. See also, People v. Washington, 2012 IL
In order to impeach by a prior conviction under IRE 609 107993, ¶ 42, where the supreme court cited Averett in hold-
there must be a judgment of conviction. In People v. Salem, ing that the Patrick issue is not reviewable when the defendant
2016 IL App (3d) 120390, the State was permitted to impeach chooses not to testify.
the defendant with proof that he had pleaded guilty to a felony The principle that the defendant must testify to preserve
offense in a different county, but that he had not yet been appellate review of the denial of the defendant’s motion
sentenced. After reviewing the statutory definitions of “convic- to exclude proof of a prior conviction is consistent with the
tion” and “judgment” and considering decisions in other cases, United States Supreme Court decision in Luce v. United States,
the appellate court held that the admission of that evidence 469 U.S. 38 (1984). Also, in Ohler v. United States, 529 U.S.
was error. And, since the defendant had not objected to the 763 (2000), the Supreme Court held that, where the defendant’s
admission of the mere plea of guilty, the court further held that motion in limine to bar a prior conviction is denied, but the
the error was structural in nature and thus constituted plain defendant testifies to the conviction on direct examination, he
error. Salem also is noteworthy because evidence of the defen- waives his right to appeal the court’s motion in limine ruling.
dant’s 11 previous federal offenses, which were more than Rejection of “Mere Fact” Method of Proof
10 years old and which the State conceded were erroneously In People v. Atkinson, 186 Ill. 2d 450 (1999), and in People
introduced, were also admitted into evidence for impeachment v. Cox, 195 Ill. 2d 378 (2001), the supreme court rejected the
purposes. The court held this too was plain error. “mere fact” method of proving a prior conviction, i.e., that as
Addressing Motions In Limine part of its balancing test, the trial court should consider per-
In People v. Patrick, 233 Ill. 2d 62 (2009), the supreme court mitting admission merely of the fact of the conviction rather
held that a trial court’s arbitrary ruling (as a blanket policy) not than allowing a designation of the offense and sentence. The
to rule on a defendant’s pre-trial motion in limine concerning court reasoned that it is “the nature of the past conviction not
the admissibility of prior convictions constitutes an abuse of merely the fact of it, that aids the jury in assessing a witness’s
discretion. A Patrick violation (where a trial court, with sufficient credibility.” Atkinson, 186 Ill. 2d at 458. Also, the “mere fact”
information to make a ruling, delays ruling on a defendant’s method inevitably invites the jury to speculate about the prior
motion in limine to bar admission of a prior conviction) is not a offense.
structural error, and is therefore subject to harmless error anal- Note, however, that the “mere fact” rule is not violated by
ysis. People v. Mullins, 242 Ill. 2d 1 (2011); People v. Averett, not identifying a predicate felony offense where the impeach-
237 Ill. 2d 1 (2010); Patrick. The factors that are considered in ing offense is based on the commission of an offense by a
harmless error analysis are (1) the defendant’s need to testify; felon, such as the offense of possession of a weapon by a felon.
(2) the type of reference, if any, to the defendant’s conviction in People v. Catchings, 2018 IL App (3d) 160186, ¶¶49-51.
closing argument; (3) the strength of the evidence against the Admissibility of Conviction for Same Offense
defendant. Mullins. In Atkinson and in People v. Mullins, 242 Ill. 2d 1 (2011), the
supreme court held that, where the proper balancing test has
been applied by the trial court, the defendant’s prior convic-
tion for the same offense for which he is on trial is admissible ¶¶ 24-31. See also People v. Carr-McKnight, 2020 IL App (1st)
for impeachment purposes. For an appellate court decision 163245, ¶¶80-81 (affirming the admission of defendant’s prior
reaching the same conclusion and citing other appellate court misdemeanor theft conviction).
decisions, see People v. Raney, 2014 IL App (4th) 130551,
Author’s Commentary on Ill. R. Evid. 609(b)
The first part of IRE 609(b) is identical to FRE 609(b) before In Illinois, “the operative dates under Montgomery are
the latter’s amendment solely for stylistic purposes effective the date of the prior conviction or release from confinement,
December 1, 2011, except that the portion of the pre-amended whichever occurred later, and the date of trial.” The date on
and the now-current federal rule that permits admission of the which the subsequent offense occurred is not controlling.
prior conviction that violates the “10-year rule” has not been People v. Naylor, 229 Ill. 2d 584 (2008). Because the date
accepted in Illinois. Montgomery prohibits the admission of of the witness’s release from confinement is controlling, any
evidence of a prior conviction, with or without notice, where time spent on parole or mandatory supervised release is not
the conviction (or the release from incarceration, whichever is relevant. People v. Sanchez, 404 Ill. App. 3d (2010).
later) occurred more than 10 years prior.
Author’s Commentary on Ill. R. Evid. 609(c)
Although worded differently, IRE 609(c) is similar to a basis for allowing evidence of a prior conviction that was
FRE 609(c) before the latter’s amendment solely for stylistic otherwise annulled. (Note that Illinois generally uses terms
purposes effective December 1, 2011. The only difference is such as “clemency,” “pardon,” “commutation,” and “reprieve”
that the Illinois rule, in contrast to the federal rule, does not (see, e.g., 730 ILCS 5/3-3-13), rather than “annulment” and
expressly provide that a conviction for a subsequent felony is “certificate of rehabilitation,” which are used in other states.)
Author’s Commentary on Ill. R. Evid. 609(d)
IRE 609(d) is identical to the federal rule before the latter’s People v. Villa: Montgomery Applies; No Statutory Conflict
amendment solely for stylistic purposes effective December 1, In People v. Villa, 2011 IL 110777, a case in which it had
2011, except for the deletion of “in a criminal case” in what granted leave to appeal two days after adopting these rules, the
is now FRE 609(d)(1) because, under Illinois common law, the supreme court, in a 4-to-3 opinion, resolved a conflict in the
exception applies both to civil and criminal cases. holdings of two districts of the appellate court by concluding that
People v. Harris: Opening the Door for Admission the common law rule, as provided by the Montgomery decision
In People v. Harris, 231 Ill. 2d 582 (2008), the supreme (and by IRE 609(d)), presents the applicable evidentiary rule.
court held that juvenile adjudications are admissible for The court reached that conclusion by considering the history of
impeachment purposes against a testifying defendant when the the statute, with particular emphasis on the fact that the statute
defendant opens the door to such evidence. Because its hold- makes juvenile adjudications admissible against a testifying
ing was based on the defendant’s own misleading testimony criminal defendant “only for purposes of impeachment and
(he testified that “I don’t commit crimes”), the court declined pursuant to the rules of evidence for criminal trials.” The court
to consider whether section 5-150(1)(c) of the Juvenile Court concluded that the retention of that language in the statute rep-
Act of 1987 (705 ILCS 405/5-150(1)(c)), which seemed to be resented the General Assembly’s intention to allow ”the admis-
statutory authority for use of juvenile adjudications against sion of juvenile adjudications against a testifying defendant for
mere witnesses and had been interpreted as statutory authority impeachment only in accordance with Montgomery and its
for such use against a testifying criminal defendant, overrides progeny.” Villa, at ¶ 41. In People v. Rodriguez, 2012 IL App
the common law prohibition against such use. (The statute is (1st) 072758-B, the appellate court, with one judge dissenting,
provided in its entirety in this guide at Appendix G.) affirmed the defendant’s convictions for first degree murder and
other offenses, holding, after harmless error analysis, that the of this guide. The reason the Committee kept the issue an open
erroneous admission of the defendant’s juvenile adjudication question was that, when it presented the codified rules to the
was harmless beyond a reasonable doubt. In reaching that supreme court, it was aware of the possible conflict between
conclusion, the majority distinguished the facts and the use (or the statute and the Montgomery holding and, more important,
non-use) of the juvenile adjudication in the case at bar from of the conflict in the holdings of the appellate court brought
the facts, use, and importance of the juvenile adjudication in about by the Second District’s opinion in People v. Villa, 403 Ill.
Villa, which had necessitated the reversal of that defendant’s App. 3d 309 (2010) and the Fourth District’s opinions in People
convictions. v. Bond, 405 Ill. App. 3d 499 (2010) and People v. Coleman,
Deletion of the Committee Comment on IRE 609 399 Ill. App. 3d 1150 (2010). There is no longer an open ques-
When the evidence rules were first codified, the Committee tion. The supreme court’s decision in Villa firmly established the
provided a Comment to this rule, stating that the codification of evidentiary principles provided by IRE 609(d)—at least in the
the Montgomery holding was not intended to resolve the pos- absence of further legislative action. And for that reason, the
sible conflict between that holding and the statute discussed Committee Comment that originally accompanied IRE 609 has
above and addressed in Villa. See also the “Statute Validity” been deleted by the supreme court, effective January 6, 2015.
discussion in the Committee’s general commentary on page 2
Author’s Commentary on Ill. R. Evid. 609(e)
IRE 609(e) is identical to the federal rule before the latter’s
amendment solely for stylistic purposes effective December 1,
2011.
Rule 610. Religious Beliefs or Opinions Rule 610. Religious Beliefs or Opinions
Evidence of a witness’s religious beliefs or opinions Evidence of the beliefs or opinions of a witness on
is not admissible to attack or support the witness’s matters of religion is not admissible for the purpose
credibility. of showing that by reason of their nature the witness’
credibility is impaired or enhanced.
COMMENTARY
Rule 611. Mode and Order of Examining Witnesses Rule 611. Mode and Order of Interrogation and
and Presenting Evidence Presentation
(a) Control by the Court; Purposes. The court (a) Control by Court. The court shall exercise
should exercise reasonable control over the mode and reasonable control over the mode and order of inter-
order of examining witnesses and presenting evidence rogating witnesses and presenting evidence so as to
so as to: (1) make the interrogation and presentation effective
(1) make those procedures effective for deter- for the ascertainment of the truth, (2) avoid needless
mining the truth; consumption of time, and (3) protect witnesses from
(2) avoid wasting time; and harassment or undue embarrassment.
(3) protect witnesses from harassment or undue (b) Scope of Cross-Examination. Cross-examina-
embarrassment. tion should be limited to the subject matter of the direct
(b) Scope of Cross-Examination. Cross-examina- examination and matters affecting the credibility of the
tion should not go beyond the subject matter of the witness, which include matters within the knowledge
direct examination and matters affecting the witness’s of the witness that explain, qualify, discredit or destroy
credibility. The court may allow inquiry into additional the witness’s direct testimony. The court may, in the
matters as if on direct examination. exercise of discretion, permit inquiry into additional
(c) Leading Questions. Leading questions should matters as if on direct examination.
not be used on direct examination except as necessary (c) Leading Questions. Leading questions should
to develop the witness’s testimony. Ordinarily, the not be used on the direct examination of a witness except
court should allow leading questions: as may be necessary to develop the witness’ testimony.
(1) on cross-examination; and Ordinarily leading questions should be permitted on
(2) when a party calls a hostile witness, an adverse cross-examination. When a party calls a hostile or an
party, or a witness identified with an adverse party. unwilling witness or an adverse party or an agent of an
adverse party as defined by section 2–1102 of the Code
of Civil Procedure (735 ILCS 5/2–1102), interrogation
may be by leading questions.
COMMENTARY
the credibility of the witness,” and is based on the decision opinion it had “modified the general rule that had previously
in People v, Stevens, 2014 IL 116300, which is discussed just limited cross-examination to the subject matter inquired into
below. on direct examination.” Stevens, at ¶ 24. The court explained
The rule is consistent with the well-established principle that it had “modified the rule to the extent that ‘[i]t is proper
that cross-examination concerning a witness’s bias, prejudice, on cross-examination to develop all circumstances within the
interest, or motive in testifying is proper and is protected by knowledge of the witness which explain, qualify, discredit or
both the Federal and Illinois constitutions (U.S. Const., amends. destroy his direct testimony.’” Id. In this case, the court held,
VI, XIV; Ill. Const.1970, art. I, sec. 8). See People v. Gonzalez, the cross-examination had a proper purpose: to discredit the
104 Ill. 2d 332, 337 (1984). As noted by the U.S. Supreme defendant’s consent defense and test his credibility. The court
Court in Davis v. Alaska, 415 U.S. 308 (1974), “[t]he partiality therefore held that the State’s cross-examination of the defen-
of a witness is subject to exploration at trial and is always dant concerning the offense about which he had not testified
relevant as discrediting the witness and affecting the weight was proper.
of his testimony. *** [T]he exposure of a witness’ motivation The earlier case referred to and quoted by the supreme court
in testifying is a proper and important function of the constitu- in Stevens is People v. Williams, 66 Ill. 2d 478 (1977). The entire
tionally protected right of cross-examination.” Davis, 415 U.S. quote from the Williams opinion is:
at 315-17 (internal quotation marks omitted). “Although, as a general rule, cross-examination
The Stevens Clarification is limited to the subject matter inquired into on direct
The Illinois Supreme Court’s decision in People v. Stevens, examination, the general rule is modified to the extent
2014 IL 116300, provides the rationale for the supreme court’s that ‘It is proper on cross-examination to develop all cir-
addition of the clause described above. In Stevens, the defen- cumstances within the knowledge of the witness which
dant was cross-examined about another sexual offense that explain, qualify, discredit or destroy his direct testimony
had occurred years after the sexual offense for which he was although they may incidentally constitute new matter
on trial, the evidence of the subsequent offense having been which aids the cross-examiner’s case.’ (Gard, Illinois
admitted during the State’s case-in-chief under section 115- Evidence Manual R. 471 (1963).” Williams, 66 Ill. 2d at
7.3(b) of the Code of Criminal Procedure of 1963 (725 ILCS 486-87.
5/115-7.3(b); see Appendix A). During his testimony on direct The holdings of the supreme court in Stevens and Williams
examination, the defendant testified only about the offense on signaled that the subject-matter limitation on cross-examina-
trial, offering a consent defense, and said nothing about the tion is merely a general limitation — one that is subject to
subsequent offense. Nevertheless, the State was permitted to the exceptions spelled out in those cases. The addition of the
cross-examine him about the subsequent offense. Framed by explanatory clause in IRE 611(b) provides notice as to what is
the defendant’s contention that the State had exceeded the included in the phrase, “matters affecting the credibility of the
scope of his direct examination and that he had not waived witness.”
his fifth amendment right involving the subsequent offense, the Similar Seventh Circuit Case—Without Reliance on Rule 611(b)
issue before the supreme court concerned the propriety of the United States v. Boswell, 772 F.3d 469 (7th Cir. 2014), pres-
State’s cross-examination. ents a scenario similar to that in Stevens. In Boswell, during
In addressing that issue, the supreme court held that the cross-examination in a prosecution for the charge of felon
defendant’s fifth amendment right against self-incrimination in possession of a firearm where there was evidence that the
had not been violated because, by taking the stand and tes- defendant sold two firearms, the defendant denied the charge,
tifying in his own behalf, he opened himself up to legitimate testifying that he did not like guns. The government then was
cross-examination. The court noted, moreover, that in an earlier permitted to cross-examine him about the tattoo of a firearm
on his neck. Without referring to Rule 611(b), the Seventh witness as a blanket policy, especially when new matter is
Circuit approved the cross-examination based on relevancy presented on redirect, is improper. In Garner, the trial court had
under Rule 401, holding additionally that there was no unfair ruled that there was no right to recross and, though the defen-
prejudice under Rule 403. dant made no offer of proof as to what was lost as a result of
Improper to Deny Recross Examination as a Matter of Course the trial court’s ruling and failed to raise the issue in his posttrial
In People v. Garner, 2018 IL App (5th) 150236, the appellate motion , the appellate court applied plain error in reversing the
court held that the denial of a defendant’s right to recross a conviction and remanding for retrial.
Author’s Commentary on Ill. R. Evid. 611(c)
IRE 611(c) is almost identical to the federal rule before the words or thought of such answer. Leading questions,
the latter’s amendment solely for stylistic purposes effective to be incompetent, must refer to material matters, and
December 1, 2011, except for the deletion of the phrase “a occur where no necessity for them appears. Whether
witness identified with an adverse party,” which is now in FRE or not such necessity exists is a matter resting largely
611(c)(2). The inclusion of that phrase would have represented in the discretion of the trial court, an abuse of which
an expansion of Illinois law, which is capsulized in section discretion will amount to prejudicial error. Questions
2-1102 of the Code of Civil Procedure (735 ILCS 5/2-1102), merely directing the attention of the witness to the sub-
entitled “Examination of adverse party or agent.” A “witness ject-matter of the inquiry are not suggestive or leading in
identified with an adverse party” is broader than the concept any proper sense.”
of “party” or the “agent of a party,” as defined in the Illinois Although the rule does not address the situation where an
statute. Acceptance of that phrase also would have altered the adverse party, as defined by section 1102 of the Code of Civil
provisions of Supreme Court Rule 238(b), which allows ques- Procedure, is “cross-examined” by that party’s attorney, Illinois
tions as if under cross-examination of a “hostile or unwilling” common law requires questions that are non-leading. See, for
witness, without any reference to “a witness identified with an example Estate of Griffin v. Subram, 238 Ill. App. 3d 712 (1992)
adverse party.” Section 2-1102 of the Code of Civil Procedure (holding that leading questions by the party’s own attorney
and Rule 238 are provided in the appendix to this guide at during cross-examination of the party as an adverse party wit-
Appendix H. ness are improper, as are questions on new matters not brought
Regarding leading questions, see People v. Schladweiler, out by the initial examination of the adverse party). Those
315 Ill. 553, 556 (1925), where the supreme court stated: restrictions, however, do not apply where the court orders or
“The test of a leading question is whether it suggests the parties agree that an adverse party will be examined only
the answer thereto by putting into the mind of the witness once and will not be recalled.
Rule 612. Writing Used to Refresh a Witness’s Rule 612. Writing Used To Refresh Memory
Memory If a witness uses a writing to refresh memory for the
(a) Scope. This rule gives an adverse party certain purpose of testifying, either—
options when a witness uses a writing to refresh mem- (1) while testifying, or
ory: (2) before testifying,
(1) while testifying; or an adverse party is entitled to have the writing pro-
(2) before testifying, if the court decides that duced at the hearing, to inspect it, to cross-examine the
justice requires the party to have those options. witness thereon, and to introduce in evidence for the
(b) Adverse Party’s Options; Deleting Unrelated purpose of impeachment those portions which relate
Matter. Unless 18 U.S.C. § 3500 provides otherwise to the testimony of the witness. If it is claimed that the
in a criminal case, an adverse party is entitled to have writing contains matters not related to the subject mat-
the writing produced at the hearing, to inspect it, to ter of the testimony the court shall examine the writing
cross-examine the witness about it, and to introduce in in camera, excise any portions not so related, and order
evidence any portion that relates to the witness’s testi- delivery of the remainder to the party entitled thereto.
mony. If the producing party claims that the writing Any portion withheld over objections shall be preserved
includes unrelated matter, the court must examine the and made available to the appellate court in the event
writing in camera, delete any unrelated portion, and of an appeal. If a writing is not produced or delivered
order that the rest be delivered to the adverse party. pursuant to order under this rule, the court shall make
Any portion deleted over objection must be preserved any order justice requires, except that in criminal cases
for the record. when the prosecution elects not to comply, the order
(c) Failure to Produce or Deliver the Writing. If a shall be one striking the testimony or, if the court in
writing is not produced or is not delivered as ordered, its discretion determines that the interests of justice so
the court may issue any appropriate order. But if the require, declaring a mistrial.
prosecution does not comply in a criminal case, the
court must strike the witness’s testimony or—if justice
so requires—declare a mistrial.
COMMENTARY
rule); rather, it addresses the options of an adverse party when a witness uses a writing to refresh memory.
Rule 613. Witness’s Prior Statement Rule 613. Prior Statements of Witnesses
(a) Showing or Disclosing the Statement During (a) Examining Witness Concerning Prior State-
Examination. When examining a witness about the ment. In examining a witness concerning a prior state-
witness’s prior statement, a party need not show it or ment made by the witness, whether written or not, the
disclose its contents to the witness. But the party must, statement need not be shown nor its contents disclosed
on request, show it or disclose its contents to an adverse to the witness at that time, but on request the same
party’s attorney. shall be shown or disclosed to opposing counsel.
(b) Extrinsic Evidence of a Prior Inconsistent (b) Extrinsic Evidence of Prior Inconsistent State-
Statement. Extrinsic evidence of a witness’s prior ment of Witness. Extrinsic evidence of a prior incon-
inconsistent statement is admissible only if the witness sistent statement by a witness is not admissible unless
is given an opportunity to explain or deny the state- the witness is first afforded an opportunity to explain
ment and an adverse party is given an opportunity to or deny the same and the opposing party is afforded
examine the witness about it, or if justice so requires. an opportunity to interrogate the witness thereon, or
This subdivision (b) does not apply to an opposing the interests of justice otherwise require. This provision
party’s statement under Rule 801(d)(2). does not apply to statements of a party-opponent as
defined in Rule 801(d)(2).
(c) Evidence of Prior Consistent Statement of
Witness. Except for a hearsay statement otherwise
admissible under evidence rules, a prior statement that
is consistent with the declarant-witness’s testimony is
admissible, for rehabilitation purposes only and not
substantively as a hearsay exception or exclusion, when
the declarant testifies at the trial or hearing and is avail-
able to the opposing party for examination concerning
the statement, and the statement is offered to rebut an
express or implied charge that:
(i) the witness acted from an improper influence
or motive to testify falsely, if that influence or motive
did not exist when the statement was made; or
(ii) the witness’s testimony was recently fabri-
cated, if the statement was made before the alleged
fabrication occurred.
sion of the same prior consistent statements under the same “[e]ven in cases where prior consistent statements are properly
circumstances as the federal rule, but solely for rehabilitative admitted, such evidence must be accompanied by a limiting
purposes, and without providing those statements substantive instruction informing the jury that the evidence should not be
weight—that is, without admitting prior consistent statements considered for its truth, but only to rebut a charge of recent fab-
as a hearsay exclusion or as an exception to the hearsay rule. rication.” Randolph, at ¶ 20. The Randolph court also advised
In short, IRE 613(c) provides Illinois’ counterpart to FRE that “it is improper for the State to refer to the prior consistent
801(d)(1)(B)(i) for the admission of prior consistent statements, statements as substantive evidence in closing arguments.” Id.
separate and apart from Rule 801(d), which provides exclusions In ruling on the substantive issue in Randolph, the appellate
from the hearsay rule, and Rules 803 and 804, which provide court held that the trial court erred in allowing admission—as
exceptions to the hearsay rule. prior consistent statements—information in a police report that
Effective September 17, 2019, the supreme court amended was consistent with a police officer’s trial testimony, where the
the rule to add the initial phrase, “Except for a hearsay state- defendant had used the police report only for the purpose of
ment otherwise admissible under evidence rules.” That was impeachment by omission.
done because of an appellate court decision—since withdrawn People v. Ruback, 2013 IL App (3d) 110256, is an inter-
—that had held that the pre-amended rule did not permit an esting decision that predates the January 6, 2015 adoption
excited utterance (which was consistent with the witness’s of IRE 613(c). There, the three judges, who wrote separately,
testimony) to be admitted. In doing so, the court abrogated the expressed different views as to whether charges of improper
holding in People v. Watt, 2013 IL App (2d) 120183, which had motive or improper influence and recent fabrication should be
held that a prior consistent statement could be admitted as an treated separately, and whether the completeness doctrine (see
excited utterance. It also would have abrogated a statue such as IRE 106) justified or did not justify the trial court’s ruling barring
the one addressed in People v, Applewhite, discussed infra. The the contested statements. The adoption of IRE 613(c) should
supreme court’s amendment is designed to make clear that the settle questions about circumstances that justify the admission
rule does not deny admissibility to consistent statements that of prior consistent statements, while making clear that such
are otherwise admissible. prior consistent statements do not carry substantive weight.
Note that generally a prior consistent statement is admitted In People v. Applewhite, 2016 IL App (4th) 140588, shortly
after an attempt during questioning at trial to create an express after the offense, the 11-year-old victim informed her mother
or implied charge that “the witness acted from an improper and a nurse and two police officers of the sex act the defendant
influence or motive to testify falsely” or that the “witness’s committed on her. Her detailed description of the act, as well as
testimony was recently fabricated.” But there are appellate two other previous acts involving the defendant, were testified
court decisions that allow witness rebuttal during direct exam- to by her and by those who had interviewed her, pursuant to
ination where a party had suggested in opening statement that section 115-10 of the Code of Criminal Procedure of 1963 (725
witnesses would fabricate their testimony or have a motive for ILCS 5/115-10; see Appendix U), which allows, as exceptions
testifying falsely. See, for example, People v. Doering, 2021 to the hearsay rule, statements made by a person under age 13
IL App (1st) 190420; People v. Ursery, 364 Ill. App. 3d 680 who is the victim of certain physical and sexual offenses. Also,
(2006); and People v. Nicholls, 236 Ill. App. 3d 275 (1992). a videotaped police interview in which she described the sex
Regarding evidence admitted under IRE 613(c), judges and act and the two previous similar acts was played for the jury.
criminal law practitioners would do well to heed the advice of In approving the admission of this evidence, the appellate
the appellate court regarding limiting instructions. In People v. court rejected the defendant’s contention that section 115-10,
Randolph, 2014 IL App (1st) 113624, the court cited People in allowing the admission of prior consistent statements of
v. Lambert, 288 Ill. App. 3d 450, 461 (1997), in advising that witnesses, conflicts with IRE 613(c) which denies substantive
admission of such statements. The court held that section 115- exception applied to the admission of the witness’s statements
10 specifically provides for a hearsay exception and is thus an and that, although it did not refer to IRE 613(c), by implication
exception to Rule 613(c). no exception applied under that rule as well.
In People v. Fillyaw, 2018 IL App (2d) 150709, the trial court In People v. Tatum, 2019 IL App (1st) 162403, ¶¶ 99-106,
allowed the admission in evidence of a recording of a detective on appeal from a murder conviction, the defendant contended
and a witness concerning the circumstances of the witness’s that the State improperly elicited prior consistent statements
out-of-court identifications of the two defendants in the case. made by two witnesses to police, prosecutors, and the grand
The recording was made just after the beginning of a retrial of jury to bolster the credibility of their trial testimony. Providing
the two defendants. The primary purpose of the recording was the entirety of the five alleged consistent statements of the
to establish that the witness had identified the two defendants witnesses (see id. at ¶100), the appellate court pointed out that
without police influence. The trial court admitted the recording the complained-of statements showed that the witnesses had
as “substantive evidence to perfect impeachment” based on indeed testified that they had talked to the police, prosecutors,
section 115-10.1 of the Code of Criminal Procedure. Fillyaw, at and the grand jury, informing them as to what they knew about
¶ 70. Reasoning that the statements were clearly prior consis- the case, but without informing the jury of the content of their
tent statements that could not be admissible substantively, the statements. The court thus held that there was no impropriety
appellate court pointed out the exception that such statements in the witnesses’ providing unspecified information about the
are “admissible to rebut a charge that the witness is motivated case before testifying at trial and that, “[i]f the content of the
to testify falsely or rebut a charge of recent fabrication” and that witnesses’ prior statements was not introduced, there is no
“[t]he party seeking to introduce the prior consistent statement sense in which their statements were introduced at all.” Id. at
predates the alleged fabrication or predates the motive to testify ¶ 103. Because the content of their prior statements were not
falsely.” Id. at ¶71. Those conditions were not satisfied. Noting disclosed, the witnesses’ testimony was not bolstered by prior
that a prior consistent statement is not admissible whenever consistent statements, and the admitted statements did not
there is a contradiction of a statement or merely to corroborate constitute error.
another’s testimony, the appellate court held that no hearsay
Rule 614. Court’s Calling or Examining a Witness Rule 614. Calling and Interrogation of Witnesses
(a) Calling. The court may call a witness on its by Court
own or at a party’s request. Each party is entitled to (a) Calling by Court. The court may, on its own
cross-examine the witness. motion or at the suggestion of a party, call witnesses,
(b) Examining. The court may examine a witness and all parties are entitled to cross-examine witnesses
regardless of who calls the witness. thus called.
(c) Objections. A party may object to the court’s (b) Interrogation by Court. The court may inter-
calling or examining a witness either at that time or at rogate witnesses, whether called by itself or by a party.
the next opportunity when the jury is not present. (c) Objections. Objections to the calling of witnesses
by the court or to interrogation by it may be made at
the time or at the next available opportunity when the
jury is not present.
COMMENTARY
COMMENTARY
near-identical case of Presley v. Georgia, 558 U.S. 209 (2010), In People v. Radford, 2020 IL 123975, the appeal from
where the defendant’s uncle was excluded from the courtroom the appellate court case referred to above, the defendant was
for the same reasons, the appellate court noted that, in People charged with the murder of his two-year old daughter. Because
v. Thompson, 238 Ill. 2d 598 (2010), the Illinois Supreme of the limitations on the courtroom size based on the number
Court had included the denial of a public trial as structural of prospective jurors required, the trial court ordered a partial
error requiring automatic reversal without the need to show closure of the courtroom during jury selection, limiting for
prejudice. And noting further that, as in Presley, the trial court public admission two persons chosen by the defendant and
could have taken steps to accommodate the presence of the two persons from the victim’s family. Neither side objected to
step-grandmother (which included “calling the potential jurors the trial court’s order. Considering its plain error review based
into the room in smaller groups”), the appellate court reversed on the defendant’s failure to contemporaneously object to the
the defendant’s conviction for first degree murder, which had partial closure of the courtroom, the problems associated with
resulted in a 100-year prison sentence, and remanded the case the courtroom size, and the care of the trial court in fashioning
for a new trial. an appropriate remedy, the supreme court held that the partial
In People v. Smith, 2020 IL App (3d) 160454, the trial court closure of the courtroom did not constitute clear or obvious
closed the courtroom during jury voir dire, thus excluding the error by depriving the defendant his sixth amendment right to a
defendant’s mother from the courtroom during jury selection. public trial. Radford, at ¶¶22-42.
The reason for the closure was that the courtroom could barely Section 115-11: Statutory Basis for Courtroom Exclusion
accommodate the prospective jurors. Although there was no It should be noted that the only statutory basis in Illinois for
contemporaneous objection and the defendant did not raise excluding persons from the courtroom is in section 115-11 of
the issue in a posttrial motion, the majority of the appellate the Code of Criminal Procedure of 1963 (725 ILCS 5/115-11).
court panel applied the plain error rule in reversing the defen- Where a prosecution is for the listed sex offenses in that statute
dant’s convictions. The dissenting justice, relying on the similar and “where the alleged victim of the offense is a minor under
appellate court case of People v. Radford, 2018 IL App (3d) 18 years of age,” the statute allows the court to “exclude from
140404, cited that case and Weaver v. Massachusetts, 137 S.Ct. the proceedings while the victim is testifying, all persons, who,
1899 (2017), in concluding that the trial court had satisfactorily in the opinion of the court, do not have a direct interest in the
explained the reason for the closure. (The supreme court deci- case, except for the media.”
sion in Radford is discussed just below.) For a definitive application of the statute, see People v.
In Weaver, the defendant’s mother and his minister had been Falaster, 173 Ill. 2d 220, 225-28 (1996) (holding that “the more
excluded from the courtroom during jury selection, without stringent limitations established by the United States Supreme
objection by the defendant. Later, the defendant sought a new Court for the closure of judicial proceedings to the press and
trial based on ineffective assistance of counsel for counsel’s not public” did not apply (id. at 226-27), that section 115-11 is
having objected to the closure. The Supreme Court held that in constitutional, and that the trial court did not err in excluding
this instance the defendant needed to demonstrate prejudice from the courtroom three persons who were not members of the
to obtain a new trial, but he had failed to offer evidence or defendant’s immediate family (two nephews of the defendant
legal argument that the outcome of his case likely would have and the grandfather of one of the nephews), and because the
differed had the courtroom not been fully closed to the public. trial court did not close the trial but merely removed spectators
Weaver and the Illinois Supreme Court decision in Radford during the testimony of the 14-year-old victim and did not
define the limitations on the sixth amendment right to a public exclude members of the press, the trial court thus complied
trial. with the statute’s requirements related to the testimony of that
14-year-old girl, who was sexually abused by her father begin- its holdings, in reversing the decision of the appellate court,
ning when she was eight or nine years old). the supreme court held that its inquiry under the plain error
See also People v. Martinez, 2021 IL App (1st) 172097, doctrine had ended.
¶¶ 47-58 (applying Falaster in holding that, although the trial Closed Circuit Television Proceedings
court did not identify the identity of persons excluded from Although it is not directly related to this rule—but with rele-
the courtroom, the defendant did not allege that the excluded vance related to the right to confrontation in a criminal case—it
persons had a direct interest in the case, thus distinguishing the should be noted that section 106B-5 of the Code of Criminal
holding in the appellate court decision in People v. Schoonover, Procedure of 1963 (725 ILCS 5/106B-5) allows testimony
2019 IL App (4th) 160882). “taken outside the courtroom and shown by means of a closed
In its review of the appellate court decision referred to above, circuit television” for “[t]estimony by a victim who is a child
in People v. Schoonover, 2021 IL 124832, the supreme court or a person with a moderate, severe, or profound intellectual
reversed the appellate court’s holding. The issue before the disability or a person affected by a developmental disability”
court, as framed by the appellate court, was whether the trial victimized by listed sexual offenses or aggravated battery or
court had violated section 115-11 by not making an express aggravated domestic battery. This provision was held to satisfy
determination as to whether each spectator excluded from the confrontation clause requirements in both Maryland v. Craig,
courtroom had a direct interest in the case during the testimony 497 U.S. 836, 851-52 (1990) and People v. Cuadrado, 214 Ill.
of the under-13-years-of-age girl who was a victim of a number 2d 79, 89 (2005).
of counts of predatory criminal sexual assault of a child. In its In People v. Martinez, 2021 IL App (1st) 172097, ¶¶ 38-46
de novo review of whether the defendant’s constitutional right (cited supra for a different reason), conceding that the statute’s
to a public trial under the sixth amendment had been violated, proper procedure was not followed because, in this bench trial,
the supreme first noted that because the defendant had forfeited the victim testified in the courtroom, while the defendant was
the issue, it needed to determine whether plain error could be placed in a separate room where he viewed the victim’s closed
applied. In reversing the convictions, the appellate court had circuit testimony, the appellate court held that the defendant
held that second-stage plain error had occurred. Citing and was “unable to show that his absence from the courtroom
adhering to Falaster, the supreme court pointed out that, as in resulted in an unfair proceeding or caused him to be denied an
Falaster, the trial court had temporarily removed spectators and underlying substantial constitutional right.” Id. at ¶45).
did not close the trial, the persons excluded were not imme-
Decisions Related to a Trial Judge’s Review of Evidence, Outside
diate family members of the defendant and thus did not have the Presence of the Defendant, in a Criminal Case
a direct interest in the outcome of the case, and the court did Recent appellate court decisions related not to the closure
not impose any restrictions on the media, who were allowed of the courtroom (where typically the sixth amendment right to
continued access to the proceedings. Schoonover, at ¶34. The a public trial applies) are noteworthy. For example, in People
supreme court noted that the trial court had inquired about the v. Lucas, 2019 IL App (1st) 160501, a majority of a panel of the
identity of persons in the courtroom and received no response appellate court held reversible error occurred where, in a bench
from either side. Id. at ¶ 38. Thus, there was no basis for con- trial that included charges for resisting arrest and DUI, the trial
cluding that close family members had been excluded from the court viewed a video recording of the defendant’s traffic stop in
courtroom. In construing section 115-11, the court held that, chambers in the presence of the prosecutor and defense coun-
contrary to the appellate court’s holding, “nothing in the statute sel, but outside the presence of the defendant. The majority
requires an express finding to be made” (id. at ¶ 40), and thus noted that although she understood that the trial court would
the trial court did not violate section 115-11. Citing relevant view the video in the manner described, the defendant was
United States Supreme Court decisions not inconsistent with not informed that she had a right to be present, that she never
waived that right, and that as a result she “was not afforded the Richardson, 2021 IL App (1st) 190821, ¶¶ 45-62. In that case,
opportunity to confront the evidence against her and aid in her where, under plain error review after a conviction and sentence
defense.” Id. at ¶ 15. Over the dissent, the majority held that for two counts of aggravated battery, the defendant contended
her due process right to be present for a critical stage of the that, though his attorney had waived his presence, he did not
proceedings resulted in second prong plain error. knowingly and voluntarily waive his right to be present when
Later, in People v. Groebe, 2019 IL App (1st) 180503, the trial court viewed videotaped evidence in camera during a
after a police officer testified in a bench trial concerning the pretrial section 115-10 (725 ILCS 5/115-10) hearing regarding
underlying facts related to the charge of aggravated DUI that the admissibility of a six-year-old boy’s outcry statements, the
“he had reviewed the video before his testimony and that the appellate court held that the defendant’s claim did not involve
video represented a true and accurate recording of the traffic a critical stage of his trial, where his attorney had waived his
stop and defendant’s performance of the field sobriety tests” presence and, during the trial, the defendant heard the evidence
(id. at ¶ 37), during a break in the trial the trial court viewed considered by the trial court during its pretrial review.
the video recording of the traffic stop and field sobriety tests in
Decision on the Failure of the Trial Court to Poll a Single Juror
chambers. Relying in part on Lucas, the defendant contended
Another decision not directly involved in this or any other
that her right to a public trial had been violated. The appellate
rule, but one deserving of attention is People v. Jackson, 2021 IL
court disagreed. Reasoning that photographs frequently are not
App (1st) 180672, PLA allowed on September 29, 2021, Docket
presented in open court and that the police officer had laid a
No. 127256. (For another unrelated but interesting discussion
sufficient foundation for the admission of the video, and noting
related to responses of jurors during polling by the trial court,
that—unlike in this case—in Lucas, the basis of the court’s
see the discussion supra under the heading entitled Decisions
decision was “the impact on the defendant’s ability to aid in
Related to the Polling of Jurors in the Author’s Commentary on
her own defense and to decide whether to testify” (id. at ¶49),
Fed. R. Evid. 606(b).)
the appellate court held that the trial court had not denied the
In Jackson, the defendant was found guilty by a jury of first
defendant her right to a public trial.
degree murder of one victim and attempted armed robbery of
In a case cited for different reasons a couple of times supra,
another victim. After the jury returned its signed verdict forms,
in People v. Martinez, 2021 IL App (1st) 172097, ¶¶ 59-69, a
defense counsel asked the trial court to poll the jury. Eleven
bench trial involving sexual abuses of a child, the trial court
jurors were polled and answered that this was and is their
announced that it would review the victim sensitive report
verdict. The court then dismissed the jury without polling the
(VSI) taken by a licensed clinical social worker, a report already
twelfth juror. This failure was not preserved for appeal by the
placed in evidence through the testimony of the social worker,
defendant through objection and a posttrial motion.
and already reviewed by the defendant and his counsel. In
Reviewing the issue under the plain error doctrine, a major-
rejecting the defendant’s contention on appeal that, by review-
ity of the appellate panel reversed the convictions, holding that
ing the VSI out of the courtroom, the trial court had violated
“leaving out of the poll of the jury even one juror calls into
the defendant’s right to a public trial or his right to be present
question the integrity of the judicial process and, so, constitutes
for all critical stages of his trial, the appellate court adopted the
second-prong plain error.” Id. at ¶ 3. In making its determi-
rationale of Groebe and, as that case had done, distinguished
nation, the majority disagreed with the holding in People v.
the holding in Lucas.
McGhee, 2012 IL App (1st) 093404, where the appellate court
For a recent appellate court decision fully analyzing the
denied relief in the defendant’s postconviction proceeding
decisions provided above and other decisions related to a trial
which was based on ineffective assistance of defense counsel
judge’s review of evidence outside the defendant’s presence
for failing to object after counsel had asked for polling of the
and without the defendant’s explicit approval, see People v.
jury and the trial court did not do so. The majority also found
People v. Sharp, 2015 IL App (1st) 130438, which involved an As noted, the supreme court has allowed leave to appeal in
incomplete poll, unhelpful based on its reliance on McGhee. Jackson, so it will have the final word on whether second-prong
The dissenting justice relied on McGhee and Sharp, and con- plain error occurred in that case.
tended that the trial court’s error did not rise to the level of
second-prong error,
THE ILLINOIS AND FEDERAL RULES OF EVIDENCE
ARTICLE VII. OPINIONS AND EXPERT WITNESSES
Rule 701. Opinion Testimony by Lay Witnesses Rule 701. Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony If the witness is not testifying as an expert, the wit-
in the form of an opinion is limited to one that is: ness’ testimony in the form of opinions or inferences
(a) rationally based on the witness’s perception; is limited to those opinions or inferences which are (a)
(b) helpful to clearly understanding the witness’s rationally based on the perception of the witness, and
testimony or to determining a fact in issue; and (b) helpful to a clear understanding of the witness’ tes-
(c) not based on scientific, technical, or other spe- timony or the determination of a fact in issue, and (c)
cialized knowledge within the scope of Rule 702. not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
COMMENTARY
as the person depicted in the video or in still images of the testimony is helpful where there is some basis for
video. Defense objections to this evidence were overruled. concluding the witness is more likely to correctly
On appeal from the defendant’s conviction focused on the identify the defendant from the surveillance
admissibility of the identification evidence, the appellate court recording than the jury. A showing of sustained
relied on the two-part test furnished by the earlier decision in contact, intimate familiarity, or special knowledge
People v. Starks, 119 Ill. App. 3d 21 (1983): (1) that the witness of the defendant is not required. Rather, the witness
must have been familiar with the defendant before the offense, must only have had contact with the defendant,
and (2) that the testimony must resolve the issue of identifica- that the jury would not possess, to achieve a level
tion without invading the province of the trier of fact, giving as of familiarity that renders the opinion helpful.
examples of non-invasion: where a defendant’s appearance has “We adopt a totality of the circumstances approach
changed since the time of the recording or where the recording and agree with the above authorities that the fol-
is unclear or a limited depiction. People v. Thompson, 2014 IL lowing factors should be considered by the circuit
App (5th) 120079, ¶ 29. The appellate court held that Starks’ court in determining whether there is some basis for
first requirement had been satisfied, but it held that none of the concluding the witness is more likely to correctly
witnesses had a better perspective than the jury to interpret the identify the defendant: the witness’s general famil-
surveillance recording and none had alluded to a change in iarity with the defendant; the witnesses’ familiarity
appearance nor was there any evidence of such a change in the with the defendant at the time the recording was
record. People v. Thompson, 2014 IL App (5th) 120079, ¶ 33. made or where the witness observed the defendant
The appellate court thus concluded that neither the witnesses dressed in a manner similar to the individual
who identified the defendant from a photo or from the video depicted in the recording; whether the defendant
had any better ability to identify the defendant than did the was disguised in the recording or changed his/her
jury. The appellate court therefore held that the lay opinion appearance between the time of the recording and
identification testimony had been improperly admitted for it trial; and the clarity of the recording and extent
had invaded the province of the jury. to which the individual is depicted. However, the
In its review of the appellate court decision, the supreme absence of any particular factor does not render
court first observed that IRE 701 is modeled after the federal the testimony inadmissible.
rule, and therefore the court “may look to federal law, as well as “Accordingly, we decline to adhere to the rules
state decisions interpreting similar rules for guidance.” People for admission of lay identification testimony set
v. Thompson, 2016 IL 118667, ¶40. Accordingly, the supreme forth in Starks, which the appellate court relied
court engaged in a thorough analysis of federal and out-of-state on. The two-part test of Starks is at odds with the
decisions that had addressed the factors relevant to the type great weight of authority. Specifically, as stated
of identification evidence presented in this case, drawing the above, a witness need not have familiarity with the
following conclusions: defendant before or at the time of the recording
“Based on the above principles, we now hold to testify. Moreover, we reject Starks to the extent
that opinion identification testimony is admissible it limits identification testimony solely to those
under Rule of Evidence 701 if (a) the testimony is instances where either the defendant’s appearance
rationally based on the perception of the witness has changed between the time of the recording
and (b) the testimony is helpful to a clear under- and trial or where the recording lacks clarity to
standing of the witness’s testimony or a determi- render such testimony admissible.
nation of a fact in issue. Lay opinion identification
“We also agree with the majority view that the as any bias or prejudice. Moreover, it will allow the
extent of a witness’s opportunity to observe the circuit court to render a more informed decision as
defendant goes to the weight of the testimony, not to whether the probative value of the testimony is
its admissibility. Moreover, review of the circuit substantially outweighed by the danger of unfair
court’s decision to admit lay opinion identification prejudice. Although a witness may identify himself
testimony is reviewed for an abuse of discretion. as a law enforcement officer, his testimony involv-
“Thus, we hold that lay identification testimony ing his acquaintance with the defendant should
is admissible under the foregoing principles, with consist only of how long he knew the defendant
the proviso, however, ‘it may be excluded if its and how frequently he saw him or her. Moreover,
probative value is substantially outweighed by to lessen any concerns regarding invading the
the danger of unfair prejudice.’ Illinois Rule of province of the jury or usurping its function, the
Evidence 403 (eff. Jan. 1, 2011). If such testimony circuit court should properly instruct the jury,
is admitted under the above standards, it would before the testimony and in the final charge to the
not invade the province of the jury because the jury, that it need not give any weight at all to such
jury is free to reject or disregard such testimony testimony and also that the jury is not to draw any
and reach its own conclusion regarding who is adverse inference from the fact the witness is a
depicted in the surveillance recording.” People v. law enforcement officer if that fact is disclosed.”
Thompson, 2016 IL 118667, ¶¶50-54. People v. Thompson, 2016 IL 118667, ¶59.
After spelling out the foregoing principles that relate to lay After furnishing the guiding principles for admission of
witness identification evidence generally, the supreme court lay identification evidence—both for lay persons and for
then addressed separate issues raised by the appellate court law enforcement officers—the supreme court ruled as to the
decision: the admissibility of the identification testimony of admissibility of the evidence of the four witnesses who had
law enforcement officers, and under what circumstances provided identification testimony in the case at bar. It held that
law enforcement officers may provide such testimony. The the testimony of a lay witness met the standards it had supplied,
relevance of these issues is based on concern about possible that two of the law enforcement officers had met the appli-
prejudice to defendants due to the difficulty of “complete and cable standards but their testimony was erroneously allowed
uninhibited cross-examination regarding the witness’s famil- because the trial court had not engaged in the precautionary
iarity” with the defendant, which “could reveal information procedures required for law enforcement witnesses, and that
about the defendant’s criminal past and unfairly cause the jury there had been an inadequate foundation for the admission of
to focus on that.” People v. Thompson, 2016 IL 118667, ¶ 55. the testimony of the third law enforcement officer. Despite the
On this issue, too, the supreme court examined the decisions erroneous admission of the testimony of the law enforcement
of numerous federal courts of appeal, resulting in the following officers, the supreme court found harmless error based on
principles: the strength of the State’s case, which included incriminating
“We hold, therefore, that when the State seeks to admissions by the defendant. The defendant’s conviction was
introduce lay opinion identification testimony from affirmed.
a law enforcement officer, the circuit court should Application of Thompson
afford the defendant an opportunity to examine People v. Mister, 2016 IL App (4th) 130180-B, is an opinion
the officer outside the presence of the jury. This issued by the appellate court after the supreme court issued a
will provide the defendant with an opportunity to supervisory order directing the court to reconsider its earlier
explore the level of the witness’s familiarity as well decision in light of the Thompson decision. In that case, a
surveillance shift supervisor of a Joliet gambling casino testified counsel could determine the witness’s level of familiarity with
about numerous surveillance videos, in the casino and in a the defendant and any other bias or prejudice.
parking lot, that depicted the activities of the defendant and Silent Witness Theory of Admissibility
another related to an armed robbery of a victim who had won Though not directly related to lay witness testimony, in
a sizable amount of money in the casino. In its earlier decision, considering the admission of photos and videos generally, it
the court had declined to follow the appellate court’s decision is important to be aware of the “silent witness” theory, under
in Thompson. After its own review following remand, the which “a witness need not testify to the accuracy of the
appellate court concluded that its previous legal findings were image depicted in the photographic or videotape evidence
consistent with those of the supreme court in Thompson and, if the accuracy of the process that produced the evidence is
with the supreme court’s additional guidance, it determined established with an adequate foundation. In such a case, the
that, although he had not seen the actual events depicted in the evidence is received as a so-called silent witness or as a witness
videos in real time, the surveillance shift supervisor’s testimony which speaks for itself.” People v. Taylor, 2011 IL 110067, ¶32
about what he saw based on his repeated viewings of the (citations and internal quotation marks omitted). For a discus-
videos was rationally based on his perception of them and was sion of Taylor, where the issues were unrelated to lay opinion
helpful to the trier of fact. His testimony was therefore properly testimony under IRE 701, see the Author’s Commentary on Ill.
admitted under IRE 701. R. Evid. 104(a).
In People v. Gharrett, 2016 IL App (4th) 140315, the appel- Testimony About Ultimate Issue
late court relied on the principles in Thompson, applying them IRE 704 provides the rule that allows the admission of lay
not for the identification of a person, but for the identification opinion evidence regardless of whether that opinion embraces
of a partially obstructed object in a person’s hand. In that case, an ultimate issue to be decided by the jury. In People v.
a prosecution for burglary, a witness testified that a depiction Richardson, 2013 IL App (2d) 120119, the appellate court cited
in an office video admitted in evidence “was consistent” with IRE 701 in holding that a police officer was properly allowed
the defendant’s holding a wad of money that the witness had to provide lay opinion evidence that the defendant wore a vest
previously placed in a drawer in the office. The appellate court that was “body armor” (an element of the charged offense)
upheld the admission of that testimony as lay witness opinion under his clothing, based upon his personal experience as a
evidence that was rationally based on the perception of the police officer. Responding to the defendant’s contention that
witness and helpful to the jury’s determination of a fact in issue. the officer improperly provided an opinion on an ultimate
In People v. Stitts, 2020 IL App (1st) 171723, without an issue in the case, the court cited IRE 704 that “[t]estimony in
indication whether the trial occurred before or after the the form of an opinion or inference otherwise admissible is
Thompson decision, the appellate court found that the not objectionable because it embraces an ultimate issue to be
trial court had failed to follow the procedures mandated by decided by the trier of fact.” Id. at ¶19.
Thompson. Although the defendant had forfeited the issue, Distinctiveness and Similarities in Handwriting
the appellate court applied plain error analysis, held that the In People v. Jaynes, 2014 IL App (5th) 120048, ¶¶ 50-53,
evidence was closely balanced, and considered the issue. the appellate court held that the trial court did not abuse its
In this case involving a shooting, where part of the evidence discretion in overruling the defendant’s objection to allowing
included a detective testifying that his review of surveillance a detective to testify as to his opinion regarding distinctiveness
tape showed the defendant holding a gun and fleeing from the and similarities in handwriting when he possessed no hand-
scene of the offense with others, the court held that the trial writing-comparison qualifications, and in allowing, under IRE
court failed to afford the defendant an opportunity to examine 701, the admission of the detective’s testimony that certain
the officer outside the presence of the jury, so that defendant’s letter “E”s on labels on compact discs looked similar. The court
noted that the detective did not offer any conclusions about “thinks you did this.” Pointing out that neither the detective
whether the “E”s were written by the defendant, and that his nor the sister in this case testified that they believed the defen-
opinion satisfied the requirements of IRE 701. dant was guilty, and that no evidence was admitted about the
Lay Opinion Evidence on the Credibility of a Witness Is Improper sister’s present opinion of the defendant’s guilt or innocence,
As indicated infra, expert opinion testimony about the cred- the supreme court rejected the defendant’s contention that the
ibility of a witness is not permitted in Illinois. Also prohibited is admitted testimony constituted improper opinion evidence.
lay opinion evidence on the credibility of a person outside the Rather, the court concluded “that the evidence was relevant
context of a trial or other court proceeding. People v. O’Donnell, in that it provided some context for why the investigation was
2015 IL App (4th) 130358, is illustrative. In that case, a police focusing on defendant.” As for the defendant’s contention that
officer testified that the defendant, who was on trial for the the testimony constituted inadmissible hearsay, the court stated:
offense of driving under the influence, showed deception about “In this case, the State did not seek to admit [the
not being the driver of his abandoned wrecked car when the sister’s] statements to prove that defendant was
officer interrogated him at the police station, because “[h]e guilty or even to prove that [the sister] thought
looked away, and he looked down” when she asked him if he defendant was guilty. Instead, [the detective’s]
was the driver of the car. Citing its earlier decision in People testimony provided context for his investigation
v. Henderson, 394 Ill. App. 3d 747 (2009), which had referred and for testimony pertaining to defendant’s state
to similar evidence as “human lie detector” testimony, the of mind based on defendant’s response to [the
appellate court quoted a sentence from that opinion in holding detective’s] questioning.”
that the testimony was improper: “Using such a witness as a Decisions applying Hanson include People v. Degorski,
‘human lie detector’ goes against the fundamental rule that 2013 IL App (1st) 100580, where the witness (then an assistant
one witness should not be allowed to express his opinion as state’s attorney and at the time of trial a judge) testified in a
to another witness’s credibility.” O’Donnell, 2015 IL App (4th) non-responsive way that “his statement to me was reliable,”
130358, ¶32, quoting Henderson, 394 Ill. App. 3d at 753-54. in response to a cross-examination question about a statement
The takeaway: It is proper for a witness to testify that a that the witness took from the defendant; People v. Martin,
person “looked away, and he looked down;” but it is not proper 2017 IL App (4th) 150021, where, having responded to a car in
for the witness to state an opinion that the person lied or was a ditch off the interstate and having been told by the defendant
being deceptive. that his wife had been driving and that she had hailed a car to
seek help, a State trooper testified that at that time he believed
Previous Opinions on Credibility by Non-Expert Witnesses Do
Not Constitute Improper Lay Opinions that the defendant had been driving and that the defendant’s
Although a witness is not permitted to provide opinion story did not make sense to him; and People v. Whitfield, 2018
testimony concerning another witness’s credibility, a number Ill App (4th) 150948, ¶¶58-59, where questions and statements
of Illinois decisions hold that testimony about past lay opin- made by police officers to the defendant during a videotaped
ions concerning a criminal defendant’s credibility or guilt—in interview did not constitute improper lay witness opinions on
contrast to testimony concerning present opinions—does not the defendant’s credibility, were helpful to the jury by placing
constitute improper opinion evidence. People v. Hanson, 238 the defendant’s statements in context and were not testimony,
Ill. 2d 74 (2010), presents a prime example of that principle. and did not provide any present opinion from the investigating
In that case, the State was allowed to admit evidence that the officers.
defendant’s sister told a detective that she believed the defen- Both Degorski and Martin distinguished the contrary hold-
dant had committed the murder of the four victims in the case, ing in People v. Crump, 319 Ill. App. 3d 538 (2001), where
and that the detective informed the defendant that his sister in response to the State’s question, “did you have reason to
believe that the defendant in this case committed this offense?” personal knowledge requirement. In contrast,
a police officer responded, “Yes, I did.” The primary distinction testimony moves from lay to expert if an officer
made by the two cases was that Crump predated Hanson, and is asked to bring her law enforcement experience
was inconsistent with its holding. to bear on her personal observations and make
People v. Suggs, 2021 IL App (2d) 190420, is consistent with connections for the jury based on that specialized
the holdings in Crump and Degorksi, in holding that a police knowledge. [Citation.] This differentiation arises
officer’s testimony about his opinion at the time of the alleged frequently in cases in which officers testify as to
offense was proper, but it reached a different decision based on the meaning of code words used in drug transac-
the officer’s further testimony that may have communicated his tions.” Jones, 739 F.3d at 369.
present opinion about the guilt of the defendant. In that domes- In Jones, the issue before the court was whether a police
tic battery prosecution, defendant’s mother, who had called officer’s testimony about a dye pack that had exploded after
911, told police that defendant (her daughter) had stopped her a bank robbery was lay opinion evidence or expert opinion
from falling by grabbing her wrist, thereby causing fingernail testimony. If the latter, the testimony may have been incompe-
punctures in three places on her daughter’s wrist. She provided tent because the witness had not been properly qualified and
the same testimony at her daughter’s jury trial. A police officer, because the government had failed to make proper disclosure.
who responded to the 911 call, testified in response to the Applying the principles in the quote above, the court con-
State’s question that, after speaking with defendant’s mother, he cluded that the officer’s testimony about the aftermath of an
had the opinion that a crime had occurred. Then, in response to exploding dye pack—something he had witnessed on three to
the State’s next question, “And what crime was that?” the officer five occasions—clearly constituted lay opinion evidence. On
testified, “Domestic battery.” In its plain error review, after dis- the other hand, the officer’s testimony—“that the dye packs
cussing Crump and Degorski, the appellate court reasoned that were all manufactured by one company, that they contained
the officer’s first response was properly in the past tense, when a timer which could be set to detonate the dye pack within 10
the officer formed the opinion at the scene; but the response to 30 seconds of exiting the bank, that the dye packs instantly
to the second question, the court reasoned, meant that “the burned at 400 degrees, and that timers were set based upon
jury almost certainly would have understood that language as a the environment of the bank so as to ensure they would go
reference to an opinion [the officer] held when he testified.” Id. off shortly after the exit from the bank so as to maximize the
at ¶ 18. Based on its conclusion that the evidence was close, possibility for witnesses outside the bank”—“was based on
the court reversed defendant’s conviction and remanded the technical, specialized knowledge obtained in the course of his
case to the circuit court for a new trial. position, and was not based on personal observations acces-
Distinguishing Lay Opinion Evidence from Expert Opinion Evidence sible to ordinary persons,” and therefore fell within Rule 702.
The distinction between lay and expert opinion evidence Jones, 739 F.3d at 369.
is sometimes difficult to determine—especially in relation to United States v. Malagon, 964 F.3d 657 (7th Cir. 2020), also
police officer testimony. In United States v. Jones, 739 F.3d illustrates the difference between expert opinion testimony and
364 (7th Cir. 2014), the Seventh Circuit pointed out that it had lay opinion testimony. In that case, the Seventh Circuit relied
discussed the distinction in numerous opinions and provided on the training and experience of a DEA Task Force Officer to
the following general principles: provide expert testimony concerning drug trafficking practices
“Lay testimony is based upon one’s own observa- and the use of drug codes. The Seventh Circuit rejected the
tions, with the classic example being testimony defendant’s contention that, though that expert witness never
as to one’s sensory observations. *** [T]he Rule referred to his “training and experience” to decode narcotics
701 standard is essentially an importation of the code words, an examination of the transcript of the officer’s tes-
timony showed that he had indeed relied on such experience. the dual-role testimony, the convictions were affirmed on plain
As for another DEA officer’s evidence, admitted as lay opinion error review.
testimony, the Seventh Circuit reasoned that the officer: For Illinois procedures, even more highly recommended for
“testified as to the meaning of the words used in a reading is the decision of the Illinois Appellate Court in People
conversation between himself and [the defendant]. v. Loggins, 2019 IL App (1st) 160482, ¶¶ 76-106. There, to
As a party to the conversation, his testimony as to address the issue of whether the defendant possessed cocaine
the meaning of the words used by the parties in the with the intent to deliver, a police officer testified to opinions
conversation falls within Rule 701 as lay testimony about items found in the defendant’s house where cocaine was
in that it is rationally based on his perception as a located: several hundred small plastic bags, two blenders, and
witness and helpful to understanding his testimony a bottle of inositol (a dietary supplement used to cut cocaine).
and determining a fact in issue. Nothing in his On appeal, the defendant contended that the officer’s testimony
testimony indicates that his testimony is based on about the paraphernalia obtained from his house—offered as
specialized knowledge, as opposed to his under- lay opinions—constituted expert opinion testimony and thus
standing of the conversation as a participant in it.” was improperly admitted, because the State failed to lay a
Malagon, 964 F.3d at 662. proper foundation for such testimony. Noting that IRE 701 is
Dual-Role Testimony substantively identical to its federal counterpart, the appellate
The Seventh Circuit’s decision in United States v. Jett, 908 court relied on numerous Seventh Circuit opinions in agreeing
F.3d 252 (7th Cir. 2018) addresses in depth the problems with the defendant’s contention. The standards applied by the
associated with “dual-role testimony” (a witness testifying appellate court for distinguishing lay opinion evidence from
from personal contemporaneous or past observations and expert opinion evidence may be summarized as follows:
also providing expert opinions), in the context of an FBI “To count as lay opinions, they must be based on
agent’s testimony interpreting certain words in text messages the officer’s personal observations of the underly-
between defendants. As in Jones, the testimony of the agent ing events, and they cannot require the officer to
did not distinguish between lay or expert opinion evidence. draw on any specialized knowledge or expertise.
Acknowledging inconsistencies in prior Seventh Circuit They must be opinions that anyone in the same
decisions, the court provided precautions to be taken by position, not just a trained officer, would have
district court judges in admitting such evidence, as well as a been qualified to offer. *** If the opinion rests in
recommended jury instruction. Jett, affirmed based on plain any way on the officer’s specialized knowledge,
error review, is recommended reading when such dual-role it is expert testimony, and it must meet the foun-
testimony is involved. dational requirements of Rule 702.” Loggins, at
A subsequent dual-role-testimony case, United States v. ¶¶ 88, 89 (interior quotation marks and citations
Thomas, 970 F.3d 809 (7th Cir. 2020), heavily relies on Jett, omitted).
and is likewise recommended reading. In that case, an FBI spe- In applying those standards, the appellate court held that
cial agent testified concerning his knowledge of the recovery the officer’s opinions about plastic bags, blenders, and inositol
of two firearms and a bag of methamphetamine from the glove as evidence of the defendant’s intent to deliver cocaine were
compartment of the defendant’s car and he also offered his based, not on what the officer observed in the defendant’s
opinions about the significance of the presence of the firearms house (which would have satisfied Rule 701’s requirement that
related to drug dealing. As in Jett, despite the district court’s the opinions were “rationally based on the perception of the
erroneous failure to follow the correct procedures for admitting witness”), but rather were based on the officer’s specialized
knowledge or experience as governed by Rule 702. The court
emphasized that it is commonplace for law-enforcement offi- court reasoned that the paramedic “was qualified based on his
cers to testify as dual-capacity witnesses, but: training and experience to offer testimony about signs that a
“there is no such thing as dual capacity testimony. person is dead, and he testified he was trained that rigor mortis
Any given piece of testimony is either lay or expert is one of these signs.” Id. at ¶ 183. The court further reasoned
testimony; it cannot be both. Rule 701 says this that “[e]ven if improperly admitted, the testimony was not
plainly: Lay opinions and inferences are ‘limited prejudicial,” because the paramedic “did not testify what ‘rigor
to’ those which are ‘not based on scientific, mortis’ meant at all, much less in a technical, medical sense.
technical, or other specialized knowledge within He further did not say how it occurred or whether it meant a
the scope of Rule 702.’ [Citing IRE 701(c)]. If an person had been dead for any particular amount of time. In
opinion falls within the scope of Rule 702, it is ‘by fact, [the paramedic] disclaimed any knowledge about these
definition outside of Rule 701.’” Id. at ¶ 103 (all latter subjects.” Id. at ¶184.
emphases added by the court).
Expert Opinion Evidence Unnecessary in Determining Whether
Despite its holding that the officer’s opinions on the para- Motorist Was Under the Influence of Drugs
phernalia were improperly admitted, the appellate court held In the supreme court decision in People v. Gocmen, 2018
that the error was harmless, because the defendant failed to IL 122388, involving the statutory rescission of the defendant’s
object and, if he had, the officer would have been qualified as suspension of his driver’s license for refusing to submit to chem-
an expert. Id. at ¶¶108-114. ical testing, the primary issue was whether an inexperienced
In People v. Price, 2021 IL App (4th) 190043, a prosecution police officer had reasonable grounds to arrest the defendant.
for first degree murder, a paramedic with 20 years experience Reversing the judgments of the circuit and appellate courts,
testified that the victim’s body had obvious rigor mortis. Over which had held that expert opinion evidence was necessary
the defendant’s objections that rigor mortis is a specialized in determining whether a motorist was under the influence of
term that required expert testimony and that the State had drugs, the supreme court held that there was no requirement
not provided the foundation for such testimony, the trial court that a police officer “could not opine as to whether a motorist
admitted the testimony. was under the influence of drugs without being qualified as an
On appeal, the appellate court affirmed the admission of expert witness.” Gocmen, at ¶ 38. The court made its holding
the term. The court reasoned that the term could have been explicit:
considered a lay opinion, reasoning that the paramedic had “Expert testimony is not required in every case for
not explained what he meant by the term, and a “lay person’s an officer to testify to his opinion that a motorist
understanding of the term rigor mortis is a stiffness of a body was under the influence of drugs based on his
that sets in after the person has died, and others testified that inference from the totality of the circumstances.
[the victim’s] body was cold and stiff.” Id. at ¶179. But because When, as here, the totality of circumstances at the
“the State offered [the paramedic’s] training and experience time of the arrest is sufficient to lead a reasonably
as foundation for his observation that the body had rigor cautious person to believe that an individual was
mortis instead of simply rephrasing the question to have [the driving under the influence of drugs, probable
paramedic] describe the body’s condition” (id. at ¶ 181), the cause exists.” Id. at ¶62.
COMMENTARY
Daubert v. Merrell Dow Pharmaceuticals, Inc. of the plaintiff, who had not testified about the instability of the
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. ladder. In sum, although the judge found the expert’s testimony
579 (1993), the United States Supreme Court held that the reliable, he struck it as irrelevant under Daubert because he
general acceptance test of Frye v. United States, 293 F. 1013 found the expert’s version and the plaintiff’s version to be irrec-
(D.C. Cir. 1923) was superseded by the adoption of FRE 702, oncilable. Reasoning that the jury could have found that the
which at the time was a single sentence identical to the first expert’s theory was credible and that the plaintiff’s testimony
sentence of current IRE 702. Interpreting the rule as providing merely reflected his memory of the event as it was happening,
a “screening” or “gate-keeping” role for the trial court, the the Seventh Circuit reversed the judgment for the defendants
Court held that, “under the Rules the trial judge must ensure and remanded for further proceedings, holding:
that any and all scientific testimony or evidence admitted is “It is not the trial judge’s job to determine whether
not only relevant, but reliable.” The trial court must therefore the expert’s opinion is correct. Instead, under the
make “a preliminary assessment of whether the reasoning or relevancy prong, the judge is limited to deter-
methodology underlying the testimony is scientifically valid mining whether expert testimony is pertinent to
and of whether that reasoning or methodology properly can be an issue in the case. Here, the judge improperly
applied to the facts in issue.” expanded his role beyond gatekeeper to trier
The considerations that bear on the trial court’s inquiry in of fact.” Stuhlmacher, 774 F.3d at 409 (internal
determining “whether a theory or technique is scientific knowl- citations omitted).
edge that will assist the trier of fact will be [1] whether it can In Burton v, E.I. Du Pont De Nomours, and Company, Inc.
be (and has been) tested” (i.e., whether the methodology has 994 F. 3d 791 (7th Cir. 2021), the Seventh Circuit explained the
been tested or is testable); (2) “whether the theory or technique role of the trial judge gatekeeper in this fashion:
[i.e., methodology] has been subjected to peer review and “Although Rule 702 ‘places the judge in the role of
publication;” (3) whether the methodology has a “known or gatekeeper for expert testimony, the key to the gate
potential rate of error, *** and the existence and maintenance is not the ultimate correctness of the expert’s con-
of standards controlling the technique’s operation;” and (4) clusions,’ but rather ‘the soundness and care with
whether the methodology has general acceptance within the which the expert arrived at her opinion’ Schultz [v.
relevant scientific community (i.e., the Frye test). The Supreme Azko Nobel Paints, LLC,] 721 F. 3d [426 (7th Cir.
Court stressed that the inquiry is a flexible one, and that the 426 (2014)] at 431. ‘So long as the principles and
focus “must be solely on principles and methodology, not on methodology reflect reliable scientific practice,
the conclusions they generate.” ‘“[v]igorous cross-examination, presentation of
Note that Daubert does not exclude expert testimony that contrary evidence, and careful instruction on the
may be deemed to be “incorrect” merely because it may not burden of proof are the traditional and appropriate
be reconcilable with other testimony. This is illustrated by the means of accepting shaky but admissible evi-
decision of the Seventh Circuit Court of Appeals in Stuhlmacher dence.’” Citing Daubert, 509 U.S. at 596. Burton,
v. Home Depot U.S.A., Inc., 774 F.3d 405 (7th Cir. 2014). 994 F. 3d at 826.
There, the magistrate judge struck the testimony of an accident In United States v. Tingle, 880 F.3d 350 (7th Cir. 2018),
reconstruction expert about a defect in the ladder from which the circuit court criticized the district court’s practice of not
the plaintiff fell, a defect that caused instability in the ladder. identifying expert witnesses:
The judge initially had found the expert’s testimony admissible, “The Federal Rules of Evidence and Supreme Court
but struck his testimony based on the conclusion that the precedent make clear that courts must examine
expert’s testimony could not be reconciled with the testimony the qualifications of expert witnesses and consider
whether the expert’s testimony will be helpful and reliability applies not only to “scientific” testimony but to
to the jury. The district court cannot use such all expert testimony—that involving technical and other spe-
procedures [the practice of not identifying expert cialized knowledge as well. Pointing out Daubert’s description
witnesses] to avoid its gatekeeper responsibility.” of the Rule 702 inquiry as a “flexible one” that allows consid-
Tingle, 880 F.3d at 854. eration of other specific factors as well as non-application of
General Electric Co. v. Joiner some of those provided in Daubert, the Court stressed that the
In General Electric Co. v. Joiner, 522 U.S. 136 (1997), the factors mentioned in Daubert do not constitute a “definitive
Supreme Court held that abuse of discretion, which is the stan- checklist or test,” and that the gate-keeping inquiry must be tied
dard ordinarily used to review evidentiary rulings, also is the to the facts of a particular case.
proper standard for review of a trial court’s admission or exclu- Seventh Circuit Summary of Daubert Principles
sion of expert scientific evidence. Applying standards provided In Krik v. Exxon Mobile Corp., 870 F.3d 669 (7th Cir. 2017),
by Daubert, the Court approved the trial court’s exclusion of a decision citing other circuit opinions and one that negated
the experts’ opinions in this case because studies cited by the causation theories that posit that any exposure to asbestos
experts about experiments on infant mice were dissimilar to fibers whatsoever, regardless of the amount of fibers or length
what allegedly occurred to the adult human plaintiff, and the of exposure constitutes an underlying cause of injury to the
epidemiological studies relied upon by the experts did not con- exposed individual, the Seventh Circuit provided the following
stitute a sufficient basis for their conclusions. In rejecting the summarization of Daubert principles:
argument that the trial court had erred by failing to adhere to “The Supreme Court has interpreted Rule 702
language in Daubert that the “focus, of course, must be solely with a flexible standard that boils down to two
on principles and methodology, not on the conclusions that over-arching requirements for expert witness testi-
they generate,” the Court stated: mony. The expert testimony must be ‘ground[ed] in
“But conclusions and methodology are not the methods and procedures of science’ and must
entirely distinct from one another. Trained experts ‘assist the trier of fact to understand or determine a
commonly extrapolate from existing data. But fact in issue.’ Daubert, 509 U.S. at 590–91. Daubert
nothing in either Daubert or the Federal Rules of requires the district court to act as an evidentiary
Evidence requires a district court to admit opinion gatekeeper, ensuring that an expert’s testimony
evidence which is connected to existing data only rests on a reliable foundation and is relevant to the
by the ipse dixit of the expert. A court may con- task at hand. Id. at 589. To do this a trial judge must
clude that there is simply too great an analytical make a preliminary assessment that the testimony’s
gap between the data and the opinion proffered.” underlying reasoning or methodology is scientifi-
General Electric Co. v. Joiner, 522 U.S. at 146. cally valid and properly applied to the facts at
In other words, while Daubert stressed the importance of issue. Id. at 592–93. The district court holds broad
methodology, Joiner holds that the expert’s conclusion also discretion in its gatekeeper function of determining
must correlate with supportive data. The expert’s mere state- the relevance and reliability of the expert opinion
ments (his ipse dixit) alone are insufficient. testimony. Kumho Tire Co. v. Carmichael, 526 U.S.
Kumho Tire Co. v. Carmichael 137, 141 (1999). Our circuit has given courts the
In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the following guidance to determine the reliability of a
Court held that, although Daubert referred only to scientific qualified expert’s testimony under Daubert, stating
testimony because that was the expertise at issue in that case, that they are to consider, among other things: “(1)
the trial court’s gate-keeping responsibility regarding relevance whether the proffered theory can be and has been
tested; (2) whether the theory has been subjected Packard Company, 877 F.3d 771 (7th Cir. 2017), an appeal
to peer review; (3) whether the theory has been from a products liability suit involving a death caused by fire,
evaluated in light of potential rates of error; and which allegedly was caused by a defective lithium battery
(4) whether the theory has been accepted in the cell in a laptop computer, where the Seventh Circuit affirmed
relevant scientific community.” Baugh v. Cuprum the district court’s grant of summary judgment in favor of the
S.A. de C.V., 845 F.3d 838, 844 (7th Cir. 2017); defendants based on the unreliability of the opinions of two
see also Smith v. Ford Motor Co., 215 F.3d 713, plaintiff experts.
719 (7th Cir. 2000). Despite the list, we have Another application of Daubert is found in Varlen
repeatedly emphasized that “no single factor is Corporation v. Liberty Mutual Ins. Co., 924 F.3d 456 (7th Cir.
either required in the analysis or dispositive as 2019). In that case, to be indemnified by its insurer for ground-
to its outcome.” Smith, 215 F.3d at 719; see also water contamination, plaintiff needed to prove that chemical
Kumho Tire Co., 526 U.S. at 151–52. The district leaks or discharges that caused the contamination on two of its
court may apply these factors flexibly as the case sites were “sudden and accidental.” Determining that plaintiff’s
requires. United States v. Brumley, 217 F.3d 905, expert testimony was not based on reliable methods or princi-
911 (2000). Indeed Daubert itself contemplated ples, the district court held that plaintiff did not meet Daubert
a flexible standard with broad discretion given to requirements in establishing sudden and accidental discharges
district court judges. Daubert, 509 U.S. at 593.” and struck his testimony, granting summary judgment to the
Krik v. Exxon Mobile Corp., 870 F.3d at 674. insurer, which the Seventh Circuit affirmed.
The Krik court also provided the following guidance regard- Smith v. Illinois Department of Transportation, 936 F.3d 554
ing the standard of review: (7th Cir. 2019), was a Title VII action based on allegations of a
“Whether the district court applied the Daubert hostile work environment and a wrongful firing in retaliation
framework properly is a question we review de for plaintiff’s complaints about racial discrimination. In grant-
novo but we review the decision to exclude or ing summary judgment for the defendant, the district court
admit the expert witness testimony for an abuse declined to consider the deposition testimony of plaintiff’s
of discretion only. C.W. ex rel. Wood v. Textron, expert witness, an expert in industrial relations, based on the
Inc., 807 F.3d 827, 835 (7th Cir. 2015). The party fact that her opinions were not based on “sufficient facts or
seeking to introduce the expert witness testimony data.” Affirming the district court’s rejection of the expert’s
bears the burden of demonstrating that the expert testimony, the Seventh Circuit noted that the expert did not
witness testimony satisfies the standard by a interview plaintiff or his supervisors and she did not review
preponderance of the evidence. Lewis v. CITGO any sworn deposition testimony. She appeared to rely only
Petroleum Corp., 561 F.3d 698, 705 (7th Cir. on what appeared to be “plaintiff-curated records.” As for the
2009).” Krik v. Exxon Mobile Corp., 870 F.3d at retaliation claim, the court noted that the expert asserted that
673. Note, however, that where the district court plaintiff’s evaluations became more negative after he filed his
fails to perform a Daubert analysis, the admissi- complaints, but “she admitted that she had no information
bility of the expert testimony must be reviewed about whether any of these supervisors even knew about
de novo. Kirk v. Clark Equip. Co.. 991 F.3d 865, [plaintiff’s] complaints at the time that they submitted negative
872-73 (7th Cir. 2021) (collecting cases). evaluations.” Smith, at 559 (emphasis by the court). Quoting
United States v. Mamah, 332 F.3d 475, 475 (7th Cir. 2003), the
Examples of 7th Circuit’s Application of Daubert
court stated “[i]t is critical under Rule 702 that there be a link
For a decision that provides helpful guidance in applying
FRE 702 and Daubert standards, see Gopalratnam v. Hewlett-
between the facts or data the expert has worked with and the Need for Expert Opinion to Help the Trier of Fact
conclusion the expert’s testimony is intended to support.” Id. United States v. Dewitt, 943 F.3d 1092 (7th Cir. 2019), a
In United States v. Truitt, 938 F.3d 885 (7th Cir. 2019), a jury prosecution relating to the production, distribution, and pos-
convicted the defendant of false claims against the U.S. and session of child pornography, illustrates Rule 702’s requirement
theft of government of funds, by falsely claiming entitlement to that the expert opinion “help the trier of fact to understand
and receiving a refund of $300,000 from the IRS. Her defense the evidence or to determine a fact in issue.” In that case the
was based on her claim that she lacked the requisite mens rea defendant contended that the law required the government to
for the crimes because she was a member of a “charismatic present expert testimony about the subjects’ ages before images
group,” which had a strong influence on her “to comply with could be received into evidence. Conceding that in some diffi-
the group’s behavioral norms, and assigning charismatic and cult cases expert testimony may be necessary and that the issue
sometimes divine powers to the group and its leadership.” should be determined on a case by case basis, the Seventh
Truitt, at 888. To support her defense, she intended to offer Circuit held that there is no requirement for expert testimony
the testimony of a forensic psychologist, but the district court and “[j]urors are capable of drawing on their own perceptions
granted the government’s motion in limine based on Daubert to determine a subject’s age because these types of assessments
requirements. The sole argument on appeal was the challenge are ‘regularly made in everyday life.’” Id. at 1096.
to the exclusion of the psychologist’s testimony. The Seventh United States v. Wehrle, 985 F.3d 549 (7th Cir. 2021), cited
Circuit affirmed. It first held that the district court correctly ruled Dewitt in holding that a police officer’s testimony that seized
that the psychologist, who was qualified in other areas, was not devices contained child pornography “was properly admitted
qualified to answer the specific questions presented because he as fact testimony because it was an ordinary and accepted way
lacked experience with charismatic groups and was not qual- to describe what she had observed.” Wehrle, at 555. But the
ified to answer specific questions about the religious themes case is noteworthy for a different issue due to the contrasting
in play in the case. The court also held that the psychologist’s views of the majority and the concurring judge. The majority
methodology was inadequate and thus not scientifically reli- held that the trial judge erred in failing to qualify the police
able. It pointed out that, though he interviewed the defendant, officer as an expert witness when she provided testimony in
he did not interview other members of the group to evaluate describing the methods she used in extracting data about child
whether there was a “shared belief system,” a “high level of pornography from the defendant’s digital devices. The majority
social cohesiveness,” and a “strong influence to comply with reasoned that the officer testified to technical concepts beyond
the group’s behavioral norms.” Id. at 890. ordinary knowledge, but it held that the admission of the evi-
In Owens v. Auxilium Pharmaceuticals, Inc. 895 F.3d 971 dence constituted harmless error because of the overwhelming
(7th Cir. 2018), the Seventh Circuit affirmed the district court’s evidence of the defendant’s guilt. Citing decisions from other
exclusion of a doctor’s expert testimony because the testimony circuits that concluded “that testimony regarding the mere
did not fit the facts of the case, and thus was not likely to “assist extraction of data from a cell phone does not require expert
the trier of fact to understand the evidence or to determine a certification under Rule 702” (Wehrle, at 558), the concurring
fact in issue.” Id. at 973. In this case, the expert opinion did not judge reasoned that, “[a]lthough members of the general public
note that plaintiff improperly used his prescribed medication, may not be familiar with the particular programs she used to
which he alleged caused his deep vein thrombosis, so the do so, the average person would be familiar with the concepts
witness’s opinion was irrelevant, resulting in the district court of extracting data from a device and preserving the data on the
properly exercising its gatekeeping responsibility in excluding origin device.” Id.
the evidence.
of the application of that principle, see People v. Wilson, 2017 used “to take the further step of suggesting the inference which
IL App (1st)143183, ¶¶ 45-47, where the appellate court held should be drawn from applying the specialized knowledge to
that, because historical cell site analysis (HCSA—reading coor- the facts.” And, although the trier of fact may draw inferences
dinates of cell sites from phone records and plotting them on on its own from the evidence provided by an expert witness,
a map) does not qualify as scientific evidence, the defendant’s during closing arguments counsel is allowed to draw inferences
contention that his attorney provided ineffective assistance in from the evidence to assist the trier in drawing an appropriate
failing to request a Frye hearing lacked validity. For another inference.
example, see People v. Coleman, 2014 IL App (5th) 110274, General Principles for Expert Testimony
where the defendant challenged the trial court’s ruling allowing General principles that apply to testimony of experts in
an expert linguist to testify on the issue of authorship attribution Illinois are provided succinctly by Thompson v. Gordon, 221
(comparison of handwriting), contending that the trial court Ill. 2d 414 (2006), which predates the codification of Illinois
erred in admitting the evidence after a Frye hearing, held “in evidence rules:
the interest of safety.” The appellate court rejected the defen- “With regard to expert testimony, it is well settled
dant’s argument based on its finding that the subject matter of that the decision whether to admit expert testi-
the expert’s testimony did not involve scientific methodology mony is within the sound discretion of the trial
or principle, but was based on the expert’s observation and court. Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003).
experience, and thus was not subject to Frye; and that, in any A person will be allowed to testify as an expert
event, the expert’s testimony presented nothing new or novel. if his experience and qualifications afford him
Coleman, at ¶¶111-120. knowledge that is not common to laypersons,
and where his testimony will aid the trier of fact
Meaning of “or otherwise” in the Phrase “in the form of an
opinion or otherwise” in reaching its conclusions.’ People v. Miller, 173
Most expert testimony is provided by opinion. But what is Ill. 2d 167,186 (1996). ‘There is no predetermined
intended by “or otherwise” in the phrase “in the form of an formula for how an expert acquires specialized
opinion or otherwise” is not readily ascertainable. The 1972 knowledge or experience and the expert can gain
note of the Federal Advisory Committee on Rule 702, equally such through practical experience, scientific study,
applicable to the Illinois codification, supplies the explanation: education, training or research.’ Miller, 173 Ill. 2d
“Most of the literature assumes that experts testify at 186. Thus, ‘[f]ormal academic training or spe-
only in the form of opinions. The assumption cific degrees are not required to qualify a person
is logically unfounded. The rule accordingly as an expert; practical experience in a field may
recognizes that an expert on the stand may give serve just as well to qualify him.’ Lee v. Chicago
a dissertation or exposition of scientific or other Transit Authority, 152 Ill. 2d 432, 459 (1992). An
principles relevant to the case, leaving the trier of expert need only have knowledge and experience
fact to apply them to the facts.***[I]t seems wise beyond that of an average citizen. Miller, 173 Ill.
to recognize that opinions are not indispensable 2d at 186. Expert testimony, then, is admissible
and to recognize the use of expert testimony in ‘if the proffered expert is qualified by knowledge,
non-opinion form when counsel believes the trier skill, experience, training, or education, and the
can itself draw the requisite inference.” testimony will assist the trier of fact in under-
The note goes on to explain that, in addition to allowing the standing the evidence.’ Snelson, 204 Ill. 2d at 24.”
trier of fact to draw its own inference from evidence provided Thompson v. Gordon, 221 Ill. 2d at 428.
by an expert witness, the use of expert opinions may still be
The supreme court’s recent decision in People v. King, 2020 Dual Standard of Review
IL 123926, provides similar as well as additional general prin- In In re Commitment of Simons, 213 Ill. 2d 523 (2004), the
ciples applicable to expert testimony: supreme court altered its standard of review concerning expert
“‘In Illinois, generally, an individual will be per- scientific testimony by adopting a dual standard. It did so in
mitted to testify as an expert if his experience and order to allow a broader review of the validity of a trial court’s
qualifications afford him knowledge which is not Frye analysis:
common to lay persons and where such testimony “Accordingly, we hereby adopt a dual standard of
will aid the trier of fact in reaching its conclusion.’ review with respect to the trial court’s admission
People v. Enis, 139 Ill. 2d 264, 288 (1990). In of expert scientific testimony. The decision as to
addressing the admission of expert testimony, the whether an expert scientific witness is qualified to
trial court should balance the probative value of testify in a subject area, and whether the proffered
the evidence against its prejudicial effect to deter- testimony is relevant in a particular case, remains
mine the reliability of the testimony. Id. at 290. In in the sound discretion of the trial court. The trial
addition, in the exercise of its discretion, the trial court’s Frye analysis, however, is now subject to de
court should carefully consider the necessity and novo review. In conducting such de novo review,
relevance of the expert testimony in light of the the reviewing court may consider not only the trial
particular facts of the case before admitting that court record but also, where appropriate, sources
testimony for the jury’s consideration. Id. This court outside the record, including legal and scientific
has held that expert testimony is necessary only articles, as well as court opinions from other
when ‘the subject is both particularly within the jurisdictions.”
witness’ experience and qualifications and beyond Thus, under Simons, abuse of discretion remains the
that of the average juror’s, and when it will aid the standard of review regarding the qualifications of the expert
jury in reaching its conclusion.’ People v. Cloutier, witness and the relevance of the expert’s testimony, but the
156 Ill. 2d 483, 501 (1993). Expert testimony standard of review for expert scientific testimony concerning
addressing matters of common knowledge is not whether a novel methodology has gained general acceptance
admissible ‘unless the subject is difficult to under- under the Frye analysis is now de novo which, as the above
stand and explain.’ People v. Becker, 239 Ill. 2d quote indicates, includes considering relevant sources outside
215, 235 (2010). When determining the reliability the record. This holding reversed the portion of Donaldson
of an expert witness, a trial court is given broad and People v. Miller, 173 Ill. 2d 167, which (consistent with
discretion. Enis, 139 Ill. 2d at 290. Therefore, we the general standard for review of rulings on the admissibility
review the trial court’s decision to admit evidence, of evidence), had held that the Frye determination by the trial
including expert witness testimony, for an abuse of court was subject to the abuse of discretion standard. Simons’
that discretion. Becker, 230 Ill. 2d at 234. An abuse adoption of the de novo standard of review was consistent with
of discretion occurs only where the trial court’s views expressed by Justice McMorrow in special concurrence
decision is ‘arbitrary, fanciful, or unreasonable to in both Miller and Donaldson.
the degree that no reasonable person would agree Diagnosis Is Subject to Frye Hearing
with it.’ People v. Rivera, 2013 IL 112467, ¶ 37.” In a supreme court case relevant to the Frye test, In re the
King, at ¶35. Detention of New, 2014 IL 116306, a jury found that the
respondent New was a sexually violent person under the
Sexually Violent Persons Commitment Act. During the trial,
the State and New disputed the validity of a diagnosed mental and in In re the Detention of Hayes, 2014 IL App (1st) 120364,
disorder. The State’s two experts testified that New’s diagnosed the appellate court also had addressed whether the diagnosis
mental disorder was proper (one diagnosed paraphilia not of paraphilia, not otherwise specified, nonconsent (PNOS
otherwise specified, sexually attracted to adolescent males or nonconsent) was subject to the Frye test. As in New, in both
alternatively sexually attracted to early pubescent males, rang- of those cases and consistent with the supreme court’s later
ing from age 11 to 14 years old; the other diagnosed paraphilia decision in New, the appellate court held that the Frye test
not otherwise specified, sexually attracted to adolescent males, applied even to a diagnosis. In both cases, however, the court
non-exclusive type; both referred to as “hebephilia”); while held that a Frye hearing was unnecessary because the diagnosis
New’s expert contended that paraphilia not otherwise speci- in question had already been well established.
fied, sexually attracted to adolescent males is not a generally “Shaken Baby Syndrome” Is Not a Methodology
accepted diagnosis. The issue before the supreme court was In People v. Cook, 2014 IL App (1st) 113079, the defendant
whether a Frye hearing was required to determine the admissi- contended that the trial court had committed reversible error in
bility of the diagnosis of the State’s expert witnesses. In response failing to hold a Frye hearing on the admissibility of evidence
to the State’s contention that Frye does not apply to a diagnosis of Shaken Baby Syndrome. The appellate court noted that the
because a diagnosis does not constitute a scientific principle expert opinion in the case at bar was not based on a theory of
or methodology, the supreme court reasoned that the issue “Shaken Baby Syndrome,” but rather was based on medical
before it was whether the diagnosis of the State’s witnesses “is a knowledge and opinion. It further reasoned that, even if Shaken
diagnosable mental condition based upon legitimate scientific Baby Syndrome had been diagnosed, it is not a “methodology,”
principles and methods.” It concluded that “[t]his is the type of but “is a conclusion that may be reached based on observations
scientific evidence that the analytic framework established by and medical training which is not new or novel.” Cook, at ¶52.
Frye was designed to address.” New, at ¶ 33. In determining As such, no Frye hearing was necessary. In the later case of
whether the State’s witnesses’ diagnosis was predicated on People v. Schuit, 2016 IL App (1st) 150312, the appellate court
new or novel science, the court considered various authorities, reached the same conclusions.
noted that the diagnosis had recently been rejected for inclu- No General Acceptance of GSS
sion in DSM-5, and also noted that the State recognized the In another Frye-related case, People v. Shanklin, 2014 IL
recent debate over whether hebephilia is a diagnosable mental App (1st) 120084, the defendant filed a motion to suppress his
condition. Based on those considerations, the supreme court statements to police and an assistant state’s attorney concern-
concluded that the diagnosis is sufficiently novel for purposes ing first-degree murder, aggravated criminal sexual assault, and
of Frye. Finally, as to the issue of general acceptance, the court other offenses. In support of his motion, the defendant sought
concluded that this determination could not be made on the to admit testimony from experts to testify about the results of
basis of judicial notice alone and that it had an inadequate the Gudjonsson Suggestibility Scale (GSS), a test administered
basis to determine whether the diagnosis had gained general to determine his alleged susceptibility to interrogation tech-
acceptance in the psychological and psychiatric communities. niques. Over the defendant’s objections, the trial court granted
New, at ¶ 53. The court therefore remanded the case to the the State’s motion for a Frye hearing and, after hearing testi-
circuit court for a Frye hearing to determine if hebephilia is a mony from experts on both sides, barred the testimony of the
generally accepted diagnosis in the relevant communities, and, defendant’s experts, ruling that GSS’s acceptance in the field of
if necessary, for a new trial. forensic psychology was unsettled, and it thus remained a novel
Before the supreme court’s decision in In re the Detention scientific methodology that had not gained general acceptance.
of New, but after the appellate court’s decision in that case, The appellate court affirmed the trial court’s holding. In doing
in In re the Detention of Melcher, 2013 IL App (1st) 123085, so, the court distinguished People v. Nelson, 235 Ill. 2d 386
(2009), on the basis that, in that case, the supreme court was Inadmissibility of Expert Opinion Testimony on Whether Defendant
not called upon to determine whether GSS had gained general Had Relevant Specific Intent
acceptance in the scientific community. The Nelson decision In People v. Nepras, 2020 IL App (2d) 180081, where, in
turned on the lack of relevance of GSS evidence, given that the the early morning hours, police found defendant inside a laun-
defendant in that case had not presented evidence that he was dromat’s office where the door had been busted open, the trial
induced to make statements and that the statements he made court prohibited defendant from introducing expert testimony
were consistent with the facts involved in the charged offenses. that he was incapable of forming the specific intent to commit
General Acceptance of Y-STR Testimony theft as an element for the offense of burglary. Holding that the
In People v. Zapata, 2014 IL App (2d) 120825, the appel- trial court had properly denied expert opinion on defendant’s
late court approved of the admissibility of the Y-STR analysis state of mind, the appellate court reasoned as follows:
of a specimen of DNA found on the victim’s underwear in a “Because a defendant’s state of mind at the time
criminal sexual assault case. The court’s approval was based on of the crime is a question for the trier of fact, an
compliance with the two tests provided by the supreme court expert witness who was not present when the
in People v. McKown, 226 Ill. 2d 245, 254 (2007): “[a] court defendant entered the premises cannot opine
may determine the general acceptance of a scientific principle whether the defendant acted with a specific
or methodology in either of two ways: (1) based on the results mental state. People v. Frazier, 2019 IL App (1st)
of a Frye hearing; or (2) by taking judicial notice of unequivocal 172250, ¶ 33 (citing People v. Hulitt, 361 Ill.
and undisputed prior judicial decisions or technical writings on App. 3d 634, 639 (2005)). Thus, allowing expert
the subject.” (Emphasis on the word “or” added by the court). testimony regarding a defendant’s mental state at
The court noted that a Frye hearing about Y-STR testing had the time of the offense would usurp the province of
occurred, albeit in another court out-of-state, and that there the trier of fact. Frazier, 2019 IL App (1st) 172250,
was sufficient general acceptance of that testing in the relevant ¶33.” Nepras, at ¶23.
scientific community. Because Illinois does not recognize diminished capacity
Inadmissibility of Expert Opinion Testimony on Witness’s as a defense, the appellate court also rejected that basis for
Credibility the admission of the expert’s testimony. Finally, the court also
In People v. Becker, 239 Ill. 2d 215 (2010), the supreme rejected defendant’s contention that the expert testimony
court held that the trial court had properly excluded expert should have been allowed because there was no direct evi-
opinion testimony by an expert witness concerning the cred- dence of his intent to commit a theft, reasoning that it was up
ibility of a child witness because of the impropriety of asking to the jury to determine, based on the circumstantial evidence
one witness to comment directly on the credibility of another in the case, whether defendant entered the laundromat with the
(see People v. Kokoraleis, 132 Ill. 2d 235 (1989)), and because intent to commit a theft.
“the observation that this young child, like any young child,
Lerma: Expert Opinion Testimony on Eyewitness Testimony
might be influenced by suggestive questioning and improper
In People v. Lerma, 2016 IL 118496, before he died, the victim
investigative techniques, is not a matter beyond the ken of the
of a murder offense identified the defendant as the person who
average juror.” The court went on to express its belief that “it
shot him, and his statement about who shot him was admitted
is a matter of common understanding that children are subject
at trial as an excited utterance. A witness, who had heard the
to suggestion, that they often answer in a way that they believe
victim identify the defendant as the shooter and who claimed
will please adults, and that they are inclined to integrate fic-
to have known the defendant but whose familiarity with the
tional notions with reality as we know it.”
defendant was contradicted by her grand jury testimony, was
the only witness to provide identification testimony at the trial, on res judicata grounds, Brown held that the defendant could
in which no other incriminating evidence was provided. Before not invoke Lerma on collateral review. In response to the defen-
trial, the trial court had refused to admit the testimony of an dant’s contention that res judicata should not apply because
expert witness on eyewitness testimony based on the expert’s Lerma changed the relevant law, the appellate court noted that
report that his opinion did not apply where the eyewitness “it was well established prior to Lerma that the trial court, in
knew the offender. After that expert died, the defendant sought the exercise of its broad discretion, must ‘carefully scrutinize’
to have the opinion of another expert admitted. That expert’s the relevance and probative value of the defense’s proffered
report stated that a witness’s prior acquaintance with a defen- eyewitness identification expert testimony,” and Lerma did
dant did not necessarily ensure accuracy of identification. The not change that standard. Brown, at ¶ 52. The appellate court
trial court refused admission of that expert’s testimony based further noted that Lerma did not overcome res judicata, for its
upon the same grounds used to exclude the testimony of the application would be barred by Teague v. Lane, 489 U.S. 288,
original expert. On appeal, the appellate court reversed the 301 (1989), because it is not a substantive rule and the defen-
murder conviction, holding that “the trial court’s failure here to dant did not argue that it is a “watershed” procedural rule. Id.
carefully scrutinize [the second expert’s] anticipated testimony, at ¶53.
as stated in his report, constituted an abuse of discretion.” See
Expert Opinion on False Confession Based on Personality Subject
People v. Lerma, 2014 IL App (1st) 121880, ¶37. to Manipulation
On further review, the supreme court agreed. The court People v. Burgund, 2016 IL App (5th) 130119, offers a
noted that “this is the type of case for which expert eyewit- decision about expert opinion evidence that may be limited
ness testimony is both relevant and appropriate.” People v. in application due to the unique facts presented. In that case,
Lerma, 2016 IL 118496, ¶ 26. This was so, the court reasoned, the defendant was convicted by a jury of five counts of pred-
because “the State’s case against defendant hangs 100% on the atory criminal sexual assault on his two daughters, who were
reliability of its eyewitness identifications,” and because the between the ages of 1 and 3½ and 1 and 2 at the time of the
second expert’s proposed testimony was especially relevant to alleged conduct. The younger daughter did not testify at trial;
the issue of the reliability of eyewitness identification. Id. The the older daughter, then 5 years-old, did testify, but did not
court noted that it had been more than 25 years since its last provide persuasive evidence. The primary evidence against the
decision on eyewitness expert testimony in People v. Enis, 139 defendant included the testimony of his wife and his mother-
Ill. 2d 264 (1990), that “eyewitness misidentification is now the in-law, the hearsay statements of the older daughter allegedly
single greatest source of wrongful convictions in the United made to the defendant’s wife and her mother and made admis-
States, and responsible for more wrongful convictions than all sible through testimony by them by virtue of section 115-10 of
other causes combined,” and that the research on eyewitness the Code of Criminal Procedure of 1963, and the defendant’s
identifications “is well settled, well supported, and in appro- videotaped confession to police.
priate cases a perfectly proper subject for expert testimony.” At trial, the defendant testified that he had not abused his
People v. Lerma, 2016 IL 118496, ¶24. daughters. He admitted confessing to police, but testified he
Non-Application of Lerma on Collateral Review had done so because of the manipulations of his wife and
People v. Brown, 2020 IL App (1st) 190828, ¶¶ 45-53, mother-in-law, manipulations that involved religious beliefs,
denied the invocation of Lerma on due process grounds in col- coercive conduct including physical assaults, and his belief that
lateral review in postconviction proceedings. Brown was tried his wife had “spiritual discernment” that led to her numerous
before Lerma was issued. In that case, the trial court denied the accusations concerning her knowledge of his alleged sexual
defendant’s motion to admit eyewitness expert testimony, and lust and that ultimately resulted in his coming to believe that he
the appellate court affirmed that ruling on direct appeal. Based
had abused his daughters. He later realized he had no memory General Acceptance of HGN Testing
of any such conduct. In the earlier case of People v. McKown I, 226 Ill. 2d 245
The defendant unsuccessfully sought to provide the (2007), the supreme court held that horizontal gaze nystafmus
expert testimony of a clinical psychologist, making an offer (HGN) testing had not been generally accepted as a reliable
of proof when the trial court sustained the State’s objections. indicator of alcohol impairment; that in the case of HGN
The psychologist would have provided expert testimony in testing, general acceptance could not be determined by taking
support of the defendant’s claim that he had given a false judicial notice; and that a Frye hearing therefore had to be
confession because of psychological pressure, manipulation, held to determine general acceptance. On further review after
and suggestions by his wife and mother-in-law. Specifically, he a trial on remand, in People v. McKown II, 236 Ill. 2d 278
would have testified that the defendant’s personality was such (2010), though it reversed the defendant’s conviction for DUI,
that he was subject to manipulation. He would have provided the supreme court affirmed the finding of the trial court that
testimony not that the defendant was manipulated, but that his the State had satisfied its burden of establishing that horizontal
personality profile showed that he was a person who could gaze nystafmus (HGN) testing “is generally accepted in the
be manipulated. He would have “opined that the defendant’s relevant scientific fields and that evidence of HGN test results
‘psychological difficulties would make him highly suggestible is admissible for the purpose of proving that a defendant may
and easily led, especially in matters that would have religious have consumed alcohol and may, as a result, be impaired.”
or sexual overtones.’” Burgund. at ¶156. The court held that the “admissibility of HGN evidence in an
After a thorough review of the evidence presented and some individual case will depend on the State’s ability to lay a proper
erroneously not allowed by the trial court, which established foundation and to demonstrate the qualifications of its witness,
corroboration of many facts testified to by the defendant, the subject to the balancing of probative value with the risk of
appellate court held that the trial court had erred in not per- unfair prejudice.”
mitting the testimony of the psychologist. The court relied in General Acceptance of Retrograde Extrapolation
part on the Seventh Circuit’s decision in United States v. Hall, In People v. Beck, 2017 IL App (4th) 160654, the appel-
93 F.3d 1337 (7th Cit. 1996) (holding that expert evidence, late court held that, despite the absence of a Frye hearing in
not on whether a confession was voluntary, but on whether, the case at bar or in any other previous Illinois case, many
because of the defendant’s personality disorder that made former Illinois decisions had generally accepted evidence of
him susceptible to suggestion and pathologically eager to retrograde extrapolation (defined as a method of estimating a
please, he confessed to a crime that he had not committed in person’s blood alcohol concentration at an earlier point of time
order to gain approval from the law enforcement officers who by applying information on the rates at which the human body
interrogated him). Also, the appellate court distinguished the absorbs and excretes alcohol, when the blood alcohol concen-
holding in People v. Wood, 341 Ill. App. 3d 599 (2003), where tration is known at a later time). The appellate court thus held
the defendant alleged that his confession had been coerced that the trial court had not erred in denying the defendant’s
and unsuccessfully sought to present expert testimony on the motion to bar the retrograde extrapolation evidence.
defendant’s susceptibility to police suggestion and coercion, General Acceptance of Fingerprint Testing
something not beyond the ken of jurors and matters about In People v. Luna, 2013 IL App (1st) 072253 (the “Brown’s
which the defendant could testify.
The appellate court reversed Chicken murder case”), the appellate court engaged in a thor-
the defendant’s conviction and remanded the case to the circuit ough analysis regarding whether a Frye hearing was required
court for a new trial. concerning finger and palm print identification. In Luna, a palm
print had been found on a napkin in a garbage bag at the scene
of the murders, and there was expert testimony at trial that
the print was the defendant’s. The appellate court rejected the General Acceptance of Ballistics and Toolmark Evidence
defendant’s arguments that, because of recent criticisms and For a discussion of the general acceptance of ballistics and
controversy concerning fingerprint identification and because toolmark evidence and the absence of need for a Frye hearing,
print comparison has never been the subject of a Frye hearing see People v. Rodriguez, 2017 IL App (1st) 141379, ¶¶ 49-57
in Illinois, a Frye hearing was required to determine general (holding that the circuit court properly denied the defendant’s
acceptance of the methodology used for comparison of latent motion for a Frye hearing, despite there being no record of
and known prints. The appellate court held that the trial court such a hearing, because “[t]oolmark and firearm identification
had properly taken judicial notice of the general acceptance of evidence is not new or novel, either pursuant to the plain
the ACE-V methodology (for analysis, comparison, evaluation, meaning of those words or in accordance with the analysis
and verification) for prints within the relevant scientific com- employed by our supreme court in [People v.] McKown[, 226
munity. (See also People v. Morris, 2013 IL App (1st) 111251, Ill. 2d 245 (2007)]. Far from being unsettled, the law in Illinois
¶ 119 (holding that “there is no authority in Illinois, or in any is consistent in its admission of such evidence.” Rodriguez,
other state, to support the claim that it is error for a circuit at ¶ 56, citing People v. Robinson, 2013 IL App (1st) 102476,
court to not hold a Frye hearing concerning the admissibility ¶80). Note that Rodriguez was vacated by the supreme court’s
of latent fingerprint analysis,” citing People v. Mitchell, 2011 IL supervisory order issued on January 18, 2018.
App (1st) 083143, ¶31.) (For a similar discussion of fingerprint
Expert Testimony Needed to Show Causal Connection Between
comparison, in a federal case and in the context of an alleged Injury at Issue and Preexisting Injury or Condition
violation of Daubert principles rather than Frye, see United In Voykin v. Estate of DeBoer, 192 Ill. 2d 49 (2000), the
States v. Herrera, 704 F.3d 480 (7th Cir. 2013)). defendant estate’s decedent (whose death was unrelated to the
Also in Luna, in the same garbage bag containing the napkin, collision) rear-ended plaintiff’s car. Plaintiff sued for damages
a chicken bone containing a small amount of DNA had been for neck and back injuries. Over plaintiff’s objections, defen-
found; there was expert testimony at trial that the DNA profile dant was allowed to cross-examine plaintiff and his physician
on the bone was identical to the defendant’s DNA profile. In about an injury to plaintiff’s lower back five years before the
rejecting the defendant’s contention of ineffective assistance of accident, and also about plaintiff’s earlier treatment for “neck
counsel for counsel’s not requesting a Frye hearing because of problems” and carpal tunnel syndrome. The trial court granted
an alleged inadequate amount of DNA on the bone, the court plaintiff a directed verdict on the negligence issue but left the
thoroughly discussed the DNA analysis, but ultimately did determination of causation and damages to the jury, which
not address whether a Frye hearing was required because it returned a verdict for defendant. In its review of the appellate
concluded that the defendant could not satisfy the first prong court’s reversal in Voykin, the supreme court noted that the
of Strickland’s ineffective-assistance-of-counsel standard (that appellate court had earlier developed a doctrine called the
counsel’s performance fell below professional standards). “same part of the body rule,” which permitted the admission of
For a discussion concerning a split in the appellate court evidence of a prior injury without any showing that it was caus-
concerning the foundational requirements for admission of ally related to the present injury as long as both the past and
expert opinion on fingerprint testing, see the heading “Split present injuries affected the same part of the body; but where
Decisions Regarding Foundational Requirements for Fingerprint an injury was not to the same part of the body, a defendant
Evidence, and Decisions Applying Rule 705 for Ballistics, DNA, needed to demonstrate a causal connection between the cur-
and Shoeprint Evidence” under the Author’s Commentary on rent and the prior injury. Noting that a conflict had occurred in
Ill. R. Evid. 705. appellate court decisions concerning the doctrine, the supreme
court pointed out that it had already rejected the doctrine in
its earlier 1962 decision in Caley v. Manicke, 24 Ill. 2d 390
(1962), where it had rejected the argument of the defendant in that defendant caused plaintiff to suffer damages.
that case by holding that requiring a defendant to demonstrate Without expert testimony establishing both the
a causal relationship between a prior and present injury in no nature of plaintiff’s prior ‘neck problems’ as well as
way shifted the ultimate burden of proof; “[i]nstead, it simply the relationship between those prior problems and
requires a defendant demonstrate that the evidence he wishes plaintiff’s current claim, an average juror could not
to present is relevant to the question at issue, viz., whether the readily appraise the effect of the prior problems
defendant’s negligence caused the plaintiff’s injury.” Voykin, upon plaintiff’s current claim. Consequently, this
192 Ill. 2d at 56. evidence should have been excluded.” Id. at 60.
In applying the holding in Caley, Voykin reasoned: The takeaway from Voykin is embodied in its conclusion
“Without question, the human body is complex. A that, unless the natures of the prior and current injuries are
prior foot injury could be causally related to a cur- such that a lay person can readily appraise their relationship
rent back injury, yet a prior injury to the same part without expert assistance, “if a defendant wishes to introduce
of the back may not affect a current back injury. In evidence that the plaintiff has suffered a prior injury, whether
most cases, the connection between the parts of to the ‘same part of the body’ or not, the defendant must
the body and past and current injuries is a subject introduce expert evidence demonstrating why the prior injury
that is beyond the ken of the average layperson. is relevant to causation, damages, or some other issue of conse-
Because of this complexity, we do not believe that, quence.” Id. at 59. See, for example, the decision in Campbell
in normal circumstances, a lay juror can effectively v. Autenrieb, 2018 IL App (5th) 170148 (applying Voykin and
or accurately assess the relationship between a summarizing appellate court decisions on the “same part of the
prior injury and a current injury without expert body rule,” in holding that the trial court abused its discretion
assistance. Consequently, we conclude that, if a in permitting defense cross-examination of plaintiff’s treating
defendant wishes to introduce evidence that the physician about the possibility of plaintiff’s back injury just
plaintiff has suffered a prior injury, whether to the going out for no reason (i.e., idiopathic cause) or as a result of
‘same part of the body’ or not, the defendant must lifting, twisting, or any of those type of activities).
introduce expert evidence demonstrating why the Parenthetically, for a supreme court decision rejecting
prior injury is relevant to causation, damages, or the application of Voykin for justifying the refusal to admit
some other issue of consequence. This rule applies postaccident vehicular photographs, see Peach v. McGovern,
unless the trial court, in its discretion, determines 2019 IL 123456, discussed, supra, under the heading Peach
that the natures of the prior and current injuries v. McGovern: Rejecting Prior Appellate Court Decisions in
are such that a lay person can readily appraise the Permitting Admissibility of Postaccident Vehicular Photographs
relationship, if any, between those injuries without in the Author’s Commentary on Ill. R. Evid. 401.
expert assistance.” Id. at 59. Cause and Origin of Fire
Applying its reasoning to the case at bar, the supreme court In Unitrin Preferred Insurance Co. v. Flaviu George Dobra,
held: d/b/a FGD Construction, 2013 IL App (1st) 121364, the
“This evidence does not come close to demonstrat- appellate court quoted IRE 702 and cited cases that provide
ing what plaintiff’s ‘neck problems’ were, when he the basis for the admission of expert testimony (including pos-
suffered them, or when he last suffered from symp- sessing experience and qualifications that afford an individual
toms. Nothing about the evidence presented by knowledge not common to laypersons and which will aid the
defendant has any tendency to make it less likely trier of fact to reach its conclusions, and that such knowledge
that defendant caused plaintiff’s neck injury or can be obtained through practical experience, scientific study,
education, training, or research). Applying the rule and the Expert Opinion on Possession of Drugs with Intent to Deliver
principles from the cited cases, the court upheld the admission In People v. Starks, 2019 IL App (2d) 160871, the appellate
of the expert’s testimony that informed the jury which of two court approved of a police officer testifying as an expert “in
conflicting expert witnesses’ opinions on the cause and origin the area of drug investigations, delivery [and] possession with
of a fire was correct, through a review of photographs of the intent to deliver.” Starks, at ¶18. The officer did not participate
scene and the expert’s testing the two hypotheses developed by in the case, which concerned the recovery of defendant’s 20
the conflicting fire and origin experts through the application bags of cocaine weighing 9.9 grams. The officer reviewed the
of NFPA 921, the widely accepted method of testing in deter- police reports, the physical evidence, and the lab reports, and
mining the cause and origin of fires by the fire investigation he spoke to the officers involved in the case. Id. In forming his
community. In so doing, the appellate court held that the opinion as to defendant’s intent, he “considered the totality of
expert’s testimony did not usurp the role of the jury, which was the circumstances and items of evidence in the case, including
free to disregard the expert’s testimony. information that experts would commonly use, such as weight
of the drugs, the way the drugs were packaged, the lack of
Expert May Provide Opinion on Person’s Mental Condition
Without Interviewing the Person user paraphernalia, the presence of cash, and the presence of
In Rigoli v. Manor Care of Oak Lawn (West) IL, LLC, 2019 weapons.” Id. Based on those considerations, he opined that
IL App (1st) 191635, the appellate court approved the admis- defendant was a dealer rather than a user. Id.
sion of a doctor’s affidavit that, based on medical records he Crime-Scene Analysis
reviewed, he concluded that the now-deceased occupant of a In People v. King, 2020 IL 123926, the supreme court agreed
nursing home could not have understood the arbitration agree- with the many faults found by the appellate court in connection
ment she signed. The appellate court approved the admission with a former FBI profiler’s expert testimony in the defendant’s
of the affidavit despite the fact that the doctor had never met first degree murder jury trial. In affirming the appellate court’s
the woman who signed the agreement. In holding that a doctor reversal of the defendant’s conviction, the court held that the
could base his opinion on medical records and his knowledge witness “never should have been allowed to testify as an expert
of the side effects of the many medications a person ingested in this case.” Id. at ¶ 36. The court found that the witness,
within a relatively short time before she signed the arbitration called to give evidence as to whether the location where the
agreement and that there was no need to personally interview deceased was found was staged, was not qualified to give
that person to provide an opinion about her mental condition, opinion evidence as to the cause and manner of the victim’s
the court cited People v. Smith, 93 Ill. App. 3d 26, 34 (1981), death (two pathologists having given conflicting opinions on
and People v. Newbury, 53 Ill. 2d 228, 236 (1972), for the that issue), that the witness improperly gave expert opinions
principle that “[a]n expert may opine on a person’s mental on subjects that jurors could have determined for themselves,
condition even if the expert never interviewed the person.” and that the witness should not have been permitted to shore
The court also cited Barefoot v. Estelle, 463 U.S. 880 (1983), up one party’s theory of the case when jurors could draw their
where the U.S. Supreme Court rejected the contention that a own conclusions from the evidence and the State could discuss
defendant must be personally interviewed by a psychiatrist in closing argument the reasonable inferences that flowed from
before the psychiatrist can testify about that defendant’s future the evidence.
dangerousness, holding that the fact that experts do not exam- King is mandatory reading for those seeking to proffer or
ine defendants goes to the weight of their testimony, not to its oppose expert testimony on crime scene analysis.
admissibility. Rejection of Profile Testimony
People v. Tondini, 2019 IL App (3d) 170370, provides
an example of the appellate court’s rejection of “profile
testimony,” where a witness seeks to provide expert opinion understand or explain, include: People v. Gilliam, 172 Ill. 2d
testimony concerning general observations about a subject 484 (1996) (expert testimony properly excluded as to whether
without being able to speak to the specific circumstances the defendant falsely confessed to protect his family); People
surrounding the case—one who describes common practices, v. Carlisle, 2015 IL App (1st) 131144 (trial court properly
habits, or characteristics that are not in any way connected to refused to admit expert testimony that sawed-off shotgun was
a party or his circumstances. Id. at ¶¶ 24, 27. In Tondini, in not dangerous because it was old and was not deadly from
support of defendant’s self-defense theory connected to his distance it was fired because a gun is per se a deadly weapon,
stabbing a woman with a knife, defendant proffered a witness nor could the expert testify to what the defendant’s knew of
as a “violence dynamics” expert. Acknowledging the witness’s the shotgun’s capabilities); People v. Polk, 407 Ill. App. 3d
expertise in matters involving self-defense training, but without 80 (2010) (trial court properly excluded expert testimony
any knowledge concerning the decisive question as to whether about whether defendant’s low IQ and police interrogation
“defendant’s belief that it was necessary to use deadly force was techniques could have resulted in a false confession); People
reasonable under the circumstances” (id. at ¶28), the appellate v. Bennett, 376 Ill. App. 3d 554 (2007) (proper for trial court
court held that the witness “could not testify that defendant to exclude expert testimony that defendant was susceptible to
stabbed the victim in self-defense.” Id. at ¶27. police interrogations and suggestions based on his intellectual
abilities); People v. Wood, 341 Ill. App. 3d 599 (2003) (proper
Sampling of Cases Approving Exclusion of Opinion Testimony as
Not Helpful to exclude expert testimony that defendant was easily coerced
A sampling of cases that approved exclusion of expert and susceptible to intimidation to support claim that his con-
testimony, because the proffered evidence was not beyond fession was involuntary).
the understanding of ordinary people and was not difficult to
Rule 703. Bases of an Expert’s Opinion Testimony Rule 703. Bases of Opinion Testimony by Experts
An expert may base an opinion on facts or data in The facts or data in the particular case upon which
the case that the expert has been made aware of or an expert bases an opinion or inference may be those
personally observed. If experts in the particular field perceived by or made known to the expert at or before
would reasonably rely on those kinds of facts or data the hearing. If of a type reasonably relied upon by
in forming an opinion on the subject, they need not experts in the particular field in forming opinions or
be admissible for the opinion to be admitted. But if inferences upon the subject, the facts or data need not
the facts or data would otherwise be inadmissible, the be admissible in evidence.
proponent of the opinion may disclose them to the jury
only if their probative value in helping the jury evaluate
the opinion substantially outweighs their prejudicial
effect.
COMMENTARY
does not himself testify,’ [United States v.] Turner, ysis and testimony are not invariably necessary to establish
709 F.3d [1187] at 1190, as ‘the facts or data’ on the identity of the controlled substance which the defendant
which the expert bases her opinion ‘need not be is charged with distributing” (id.), the court concluded that the
admissible in evidence in order for the [expert’s] error, if any, was harmless beyond a reasonable doubt because
opinion or inference to be admitted.’ [United other evidence in the case provided sufficient circumstantial
States v.] Moon, 512 F.3d [359] at 361 (citing Fed. evidence that the questioned substances contained cocaine
R. Evid. 703). And this makes sense because the base. Id. at 1194-97.
raw data from a lab test are not ‘statements’ in any Application of Expert’s Reliance under Rule 703
way that violates the Confrontation Clause. Id. at Ambrose v. Roeckeman, 749 F.3d 615 (7th Cir. 2014), illus-
362.” Maxwell, 724 F.3d at 726-27. trates an application of FRE 703 that applies to both the federal
Confrontation Clause Issue Avoided and the Illinois rule. In that case, Ambrose appealed from the
United States v. Turner, 709 F.3d 1187 (7th Cir. 2013), the denial of his petition for habeas corpus, which alleged that his
case cited by Maxwell in the quote above, was remanded to the involuntary commitment under the Illinois Sexually Dangerous
Seventh Circuit Court of Appeals by the United States Supreme Persons Act (SDPA) (725 ILCS 205/0.01-205/12) had deprived
Court for reconsideration in light of its Williams opinion. In him of due process. His original commitment under the SDPA
that case, a supervisor of the crime-laboratory chemist who was premised on his alleged sexual penetration of his five-year-
had analyzed substances that the defendant had distributed to old daughter and her five-year-old friend. In a later hearing
an undercover police officer testified that, in his opinion, the on his recovery petition (see 725 ILCS 205/9), a psychiatrist
substances contained cocaine base. Although the supervisor testified about two alleged prior out-of-state abuses based on
had not personally performed the lab work, he reviewed the statements allegedly made by victims to social workers and
work of the chemist who had done so, and he testified that the police. In his appeal, Ambrose contended that his counsel had
chemist had followed standard testing procedures, and that he been ineffective in not challenging the psychiatrist’s testimony
reached the same conclusions she had concerning the nature about the out-of-state abuses. The Seventh Circuit held that
of the substances. In its 2010 opinion (U.S. v. Turner, 591 F.3d ineffective assistance of counsel had not been established, sim-
928), the court had found that there was no Confrontation ply because there was no error. The rationale provided by the
Clause violation. In this revised decision, the court first consid- court, which is relevant to both FRE and IRE 703 is as follows:
ered the diverse views of the justices in the Williams opinion. It “The evidence was presented [at the hearing] not
then noted that there were at least two aspects of this case that to prove the abuse allegations, but to cast light on
distinguished it from the Williams case: (1) the chemist’s analy- the information considered by [the psychiatrist] in
sis here was for the purpose of accusing a targeted defendant to the process of reaching her expert opinion. Such
create evidence against him for use at trial, and (2) here, there evidence may properly be considered, as indi-
had been a jury trial. The court then stated: “Recognizing that cated in Federal Rule of Evidence 703 which was
the divided nature of the Williams decision makes it difficult adopted by the Illinois courts. See Wilson v. Clark,
to predict how the Supreme Court would treat [the chemist’s] 417 N.E.2d 1322, 1326-27 (Ill. 1981). Under that
report, and in order to give Turner the benefit of the doubt, we rule, an expert may provide opinion testimony
shall assume that the nature of the report, particularly insofar which relies on facts and data that are not inde-
as it formally documented [the chemist’s] findings for purposes pendently admissible for the truth of the matter, as
of the criminal case against Turner, is sufficiently testimonial long as it is the type of information that experts in
to trigger the protections of the Confrontation Clause.” Turner, the field would reasonably rely upon in forming
709 F.3d at 1194. Nevertheless, concluding that “expert anal- an opinion.***In this case, the testimony as to the
allegations of out-of-state abuse was elicited in Rather than establishing that the abuse occurred,
identifying the facts and data considered by [the it simply established that those allegations were
psychiatrist] in her evaluation of Ambrose, and considered by [the psychiatrist] in her evaluation.”
was not admitted as evidence of the abuse itself. Ambrose, 749 F.3d at 620.
Difference Between Federal and Illinois Rules on Disclosure of erly relied on a toxicologist’s determination through blood tests
Inadmissible Data to the Jury
that six different types of drugs were in the deceased’s body.
The first two sentences of IRE 703 are substantively identical
to FRE 703 both before the latter’s amendment solely for sty- Ward and Anderson: Reliance on and Disclosure of Inadmissible
Facts
listic purposes effective December 1, 2011, and in its current
In People v. Ward, 61 Ill. 2d 559 (1975), the supreme court
form. However, the last sentence of both the pre-amended and
held that an expert may rely on reports that are substantively
current federal rule, which presents a balancing test other than
inadmissible as long as experts in the field reasonably rely on
the one provided by Rule 403 for the disclosure of inadmissible
such materials. In that case, however, the court did not explicitly
data and which was not present when the Illinois Supreme
hold that it was proper for the expert (a psychiatrist) to reveal
Court adopted the rule in Wilson v. Clark, 84 Ill. 2d 186 (1981),
the contents of the reports he relied upon in arriving at his
has not been adopted.
diagnosis. Later, in People v. Anderson, 113 Ill. 2d 1 (1986)—a
Test for Disclosure of Inadmissible Data
case involving an insanity defense where the issue addressed
By requiring that inadmissible facts or data may be disclosed
was the disclosure to the jury of the contents of psychiatrists’
to the jury “only if their probative value in helping the jury
reports in previous matters, information relating to a previous
evaluate the opinion substantially outweighs their prejudicial
criminal offense, and information related by the defendant to
effect,” the third sentence of the federal rule totally reverses the
the diagnosing psychiatrist expert—the supreme court held
balancing standard provided by Rule 403, thus providing a pre-
that “the logic underlying Rule 703 and this court’s decisions
sumption of nondisclosure in a federal case. The non-adoption
in Ward and Wilson [v. Clark, 84 Ill. 2d 186 (1981)] compels
of the federal rule’s last sentence means that the provisions of
the conclusion that an expert should be allowed to reveal the
Rule 403 apply in Illinois. Therefore, in determining whether to
contents of materials upon which he reasonably relies in order
allow or deny the disclosure to the jury of inadmissible facts or
to explain the basis of his opinion.”
data that the expert reasonably relied upon, an Illinois court—
In Anderson, the court recognized that an “uninformed jury”
consistent with IRE 403—must determine whether the proba-
might misuse disclosed inadmissible hearsay evidence relied
tive value of the disclosure is substantially outweighed by the
upon by the expert, but it concluded that a limiting instruction
danger of unfair prejudice—a balancing test that, in contrast to
should forestall any such misuse and that a trial court could
the test supplied in the federal rule, places the burden of proof
reject such evidence by applying the standards now incorpo-
on the opponent of the evidence and provides a presumption
rated in Rule 403. As for the statements made by the defendant
in favor of disclosure to the jury.
to the diagnosing psychiatrist—statements that are not subject
See People v. Lovejoy, 235 Ill. 2d 97 (2009) (noting that
to the hearsay exception provided for in IRE 803(4)(A), but
“Illinois has not adopted the amended version of [Federal] Rule
explicitly made subject in that rule to the provisions of IRE
703”). For more on this reasonable-reliance standard and why
703—the Anderson court pointed out that “Rule 703 makes
it does not violate the rule against hearsay, see the supreme
no distinction between treating and nontreating physicians and
court’s discussion in Lovejoy, where a medical examiner prop-
that either may express an opinion founded on any information the supreme court did not use the term “gatekeeper,” but did
reasonably relied upon by experts in the field.” Self-serving apply principles consistent with that role), and Decker v. Libell,
statements, the court noted, “can adequately be brought out on 193 Ill. 2d 250, 254 (2000) (“Trial courts routinely bar evidence
cross-examination of the expert.” because it is irrelevant or unreliable, and we see no reason to
In Gillespie v. Edmier, 2020 IL 125262, the supreme court apply a different rule in this context. Under this approach, the
affirmed the appellate court’s reversal of the trial court’s grant trial judge serves in a familiar role as ‘gatekeeper,’ barring testi-
of summary judgment in favor of the defendant manufacturer mony that is not sufficiently relevant or reliable to be admitted
of cast iron steps attached to a dump trailer. Plaintiffs, the wife into evidence”.) This emphasis on the role of the trial judge as
of the injured party and the injured party who suffered injury “gatekeeper” for admissibility of evidence is certainly worthy of
from slipping and falling from the steps, alleged strict liability note where a determination of whether the trial judge should
against the manufacturer in designing, manufacturing, and allow admissibility, under IRE 703, of otherwise inadmissible
selling a defective and unreasonably dangerous product. In evidence reasonably relied upon by the expert in forming
his deposition testimony, plaintiff’s expert relied on OSHA and opinions.
other protocols for forming his expert opinions. In affirming the See also People v. Berrios, 2018 IL App (2d) 150824,
reversal of the appellate court’s grant of summary judgment, ¶¶ 16-20, where, in a prosecution for violating a civil-case
based on reliance on the expert’s deposition testimony, which order that the defendant not have contact with a street gang
also included other bases for his opinions, three members of member (see 720 ILCS 5/25-5(a)(3)), the appellate court held
the supreme court’s lead opinion agreed that, though the OSHA that the police officer who testified as an expert on gangs prop-
and other protocols testified to by the expert were not properly erly relied, under IRE 703, on police gang information sheets.
admissible as substantive evidence, it is proper for experts to The court emphasized that, though the information relied upon
rely on such data for the limited purpose of explaining the basis was hearsay, it nonetheless was admissible to explain the basis
for his opinion. One justice did not participate in the decision. for the expert’s opinion. It also emphasized “that it is critical
The other three justices found that the lead opinion had to maintain the distinction between using information as the
reached the correct conclusion, but wrote in special concur- basis for an expert’s opinion and treating that information as
rence. The reasons provided by these justices for so writing and fact. That otherwise inadmissible evidence may serve as the
their emphasis on the procedure to be filed by trial judges are basis for an expert’s opinion does not mean that the evidence
noteworthy. The justices first pointed out that the opinion may is admissible for some other purpose.” Berrios, at ¶20. Though
have left “an incorrect impression that experts may always rely the foregoing analysis retains validity, it should be noted that in
on regulations and standards as a basis for their opinions and People v. Murray, 2019 IL 123289, a majority of the supreme
must be allowed to testify to such evidence at trial to explain court overruled the ultimate holding in Berrios to the extent
the basis for their opinion in every circumstance.” Gillespie, that it excused proof of each element related to establishing the
at ¶ 24. They contended that “[a]s a result, the opinion could status of a “street gang.” (For more on Murray, see the Author’s
be misconstrued to impermissibly undermine the trial judge’s Commentary on IRE 705 infra under the heading entitled
role as a gatekeeper.” Id. The concurring justices’ emphasis People v. Murray: Supreme Court Disagreement on Rule 705.)
on the trial judge’s role as gatekeeper is significant because Hypothetical Questions
the supreme court has emphasized that “gatekeeper” is not Although IRE 703 does not refer to hypothetical questions
a role for the trial court in IRE 702 jurisprudence. In making as a method for establishing the bases for an expert’s opinion,
that role essential in IRE 703 jurisprudence, the concurring the adoption of the rule does not preclude their use—a use that
justices heavily relied on the earlier supreme court decisions was prevalent before the codification of evidence rules. Indeed,
in City of Chicago v. Anthony, 136 Ill. 2d 169 (1990) (where when jurors perceive that hypothetical facts are consistent with
the evidence presented, the use of hypothetical questions can prior sexual activities was properly admitted during a jury
be very persuasive. The supreme court has provided the prereq- trial, not as substantive evidence, but through the testimony of
uisites for the use of hypothetical questions as follows: psychiatrists who, consistent with IRE 703, reasonably relied
“Counsel has a right to ask an expert witness upon the information in order to offer opinions about the
a hypothetical question that assumes facts that respondent’s sexual dangerousness.
counsel perceives to be shown by the evidence.
Sutherland and Williams: Issues Related to Reasonable Reliance
The assumptions contained in the hypothetical and the Confrontation Clause
question must be based on direct or circumstantial Worthy of note concerning the second sentence of IRE 703
evidence, or reasonable inferences therefrom. The are two Illinois Supreme Court cases involving DNA experts,
hypothetical question should incorporate only the where confrontation-clause arguments were rejected.
elements favoring his or her theory, and should In People v. Sutherland, 223 Ill. 2d 187 (2006), the expert
state facts that the interrogating party claims have witness was an employee of the laboratory that performed
been proved and for which there is support in the the human mtDNA analysis. She did not complete any of the
evidence. On cross-examination, the opposing actual laboratory “bench work” on the evidence. The supreme
party may substitute in the hypothetical those facts court rejected the defendant’s contention that the witness’s
in evidence that conform with the opposing party’s testimony regarding the mtDNA results was improper without
theory of the case. the lab technician’s testimony, holding that it was sufficient that
“It is within the sound discretion of the trial court the witness relied upon data reasonably relied upon by other
to allow a hypothetical question, although the sup- experts in her field.
porting evidence has not already been adduced, if In People v. Williams, 238 Ill. 2d 125 (2010), the expert
the interrogating counsel gives assurance it will be witness was a forensic biologist employed by the Illinois State
produced and connected later. Evidence admitted Police Crime Lab. She matched the defendant’s DNA profile,
upon an assurance that it will later be connected created at her laboratory from a blood sample taken from him,
up should be excluded upon failure to establish to the DNA profile created by Cellmark Diagnostic Laboratory
the connection.” Leonardi v. Loyola University from sperm taken from the victim’s vagina. No one from
of Chicago, 168 Ill. 3d 83, 96 (1995) (citations Cellmark testified about the process that created the latter DNA
omitted). profile, including the fact that the profile was derived from the
Note that the principles contained in the final paragraph semen identified in the vaginal swabs of the victim. Based
of the quote just above are consistent with IRE 104(b). Note, upon the expert’s testimony that Cellmark was an accredited
too, that where a proffered hypothetical question is supported laboratory and that its testing and analysis methods were gen-
by admitted evidence, the trial court abuses its discretion in erally accepted in the scientific community, and noting that
denying the asking of the question. Granberry v. Carbondale the Cellmark report had not been admitted into evidence, the
Clinic, S.C., 285 Ill. App. 3d 54, 60 (1996). supreme court rejected the defendant’s contentions of a viola-
tion of his Sixth Amendment right to confrontation, as well as
IRE 703’s Application Despite the Confrontation Clause
his arguments concerning lack of evidentiary foundation (both
In In re Detention of Hunter, 2013 IL App (4th) 120299,
of which included allegations concerning no direct evidence
the appellate court held that, although the confrontation clause
about the sperm DNA profile from the victim’s vagina and the
holding in Crawford v. Washington, 541 U.S. 36 (2004), applies
proper functioning and calibration of Cellmark’s equipment),
to proceedings under the Sexually Dangerous Persons Act (725
holding that the expert’s use of the DNA profile created by
ILCS 205/1 et seq.), “testimonial hearsay” obtained through
Cellmark constituted use of facts or data reasonably relied upon
police reports and witness statements about the respondent’s
by experts in her field, and that there was therefore a sufficient with the plurality solely because he concluded that Cellmark’s
foundational basis for her reliance on the Cellmark profile. The report lacked the requisite “formality and solemnity” to be
court noted that the expert did not merely regurgitate facts from considered “testimonial” for confrontation clause purposes. He
the Cellmark profile, but relied upon it to conduct her own considered the confrontation clause to reach such statements
independent comparison of the defendant’s DNA profile with as those in depositions, affidavits, and prior testimony or state-
that of the sperm. ments resulting from “formalized dialogue,” such as custodial
After granting certiorari, the United States Supreme Court, in interrogation, all of which bear indicia of solemnity.
its decision in Williams v. Illinois, 567 U.S., 50 132 S. Ct. 2221 The four-justice dissent focused on the fact that the expert’s
(June 18, 2012), affirmed the judgment of the Illinois Supreme testimony informed the factfinder (the trial court) that the test-
Court, but did so in a plurality opinion in which members of the ing of the victim’s vaginal swabs had produced a male DNA
Court were sharply divided. The four-justice plurality offered as profile implicating the defendant. This, the dissent contended,
the primary basis for its decision that, under Rule 703, an expert was contrary to the provisions of Rule 703, and was done to
may properly rely on statements that have not been admitted prove the truth of the matter asserted and thus violated the con-
as substantive evidence, that the expert may relate those state- frontation clause. Interestingly, the dissent provided a simple
ments to the factfinder, and that, because those statements are solution for what it deemed to be the error that occurred in the
related solely for the purpose of explaining the assumptions on Williams case:
which the expert’s opinion rests, they are not offered for their “Had [the expert] done otherwise, this case would
truth and thus they fall outside the scope of the confrontation be different. There was nothing wrong with [the
clause. The plurality offered as a second, independent basis for expert’s] testifying that two DNA profiles—the one
its decision, that even if the report from Cellmark had been shown in the Cellmark report and the one derived
admitted into evidence, there would have been no violation from Williams’s blood—matched each other; that
of the confrontation clause because the report differed from was a straightforward application of [the expert’s]
extrajudicial statements, such as affidavits, depositions, prior expertise. Similarly, [the expert] could have
testimony, and confessions that the clause was understood to added that if the Cellmark report resulted from
reach, and because the report was not primarily concerned scientifically sound testing of [the victim’s] vaginal
with accusing a targeted individual. The plurality opinion swab, then it would link Williams to the assault.
emphasized the fact that this was a bench trial and that there What [the expert] could not do was what she did:
was no issue concerning a confused factfinder, for the trial indicate that the Cellmark report was produced in
judge was presumed to have knowledge concerning hearsay this way by saying that [the victim’s] vaginal swab
issues, chain of custody, and the provisions of Rule 703. contained DNA matching Williams’s.” Williams,
Justice Breyer, one of those who joined in the plurality opin- 132 S. Ct. at 2270 (emphasis in original).
ion, would have preferred to have had reargument to clarify In future cases, because of the diverse views expressed in
the extent of post-Crawford opinions (i.e., Melendez-Diaz and Williams, prosecutors are likely to present some of the chain of
Bullcoming (see the discussion of them under the Author’s evidence not produced in that case, or at least follow the rec-
Commentary on Ill. R. Evid. 803(8) infra)), but in the absence ommendation of the dissent to make clear the Rule 703 nature
of reargument, he adhered to his dissenting view in those cases of the proffered evidence. As to the chain of evidence issue,
that the reports addressed in them were not “testimonial” and however, the majority’s footnote in the United States Supreme
thus not barred by the confrontation clause. Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S.
Though describing the plurality’s analysis as flawed, Justice 305 (2009), has special significance:
Thomas joined the plurality as the fifth vote. He concurred
“we do not hold, and it is not the case, that anyone After the Illinois Supreme Court’s decision in Williams but
whose testimony may be relevant in establishing before the United States Supreme Court’s affirmance of that
the chain of custody, authenticity of the sample, decision, the appellate court had upheld the expert’s testimony
or accuracy of the testing device, must appear in in a similar factual scenario in People v. Johnson, 406 Ill.
person as part of the prosecution’s case. While the App. 3d 805 (2010). In People v. Negron, 2012 IL App (1st)
dissent is correct that ‘[i]t is the obligation of the 101194, a decision that post-dates the United States Supreme
prosecution to establish the chain of custody,’ this Court Williams holding, the appellate court did likewise, and so
does not mean that everyone who laid hands on the did the appellate court in People v. Nelson, 2013 IL App (1st)
evidence must be called. As stated in the dissent’s 102619, ¶¶46-70.
own quotation, ‘gaps in the chain [of custody] Additional confrontation-clause-related decisions are dis-
normally go to the weight of the evidence rather cussed in the Author’s Commentary on the Non-Adoption of
than its admissibility.’ It is up to the prosecution to Fed. R. Evid. 807. Discussed there, inter alia, is application of
decide what steps in the chain of custody are so Crawford’s jurisprudence concerning the confrontation clause.
crucial as to require evidence; but what testimony Many of the discussed cases are relevant to the “reasonable
is introduced must (if the defendant objects) be reliance” application of the second sentence of IRE 703. They
introduced live.” Melendez-Diaz, Note 1 (internal include: the Illinois Supreme Court decisions in People v.
citations omitted) Barner, 2015 IL 116949, and People v. Leach, 2012 IL 111534
As a sequel to the Williams decision, note that in People (more thoroughly discussed in the Author’s Commentary on
v. Williams, 2015 IL App (1st) 131359, the appellate court Ill. R. Evid. 803(8), and more directly related to the business
affirmed the circuit court’s dismissal of Sandy Williams’ post- records exceptions to the hearsay rule of IRE 803(6) and (8),
conviction petition, rejecting his contention that his attorney rather than to IRE 703), and the United States Supreme Court
was ineffective in not providing three documents that would decisions in Melendez-Diaz v. Massachusetts, 557 U.S. 305
have persuaded Justice Thomas to conclude that admission of (2009); and Bullcoming v. New Mexico, 564 U.S.647 131 S.
the DNA testimony violated his right to confrontation. Ct. 2705 (2011).
Rule 704. Opinion on an Ultimate Issue Rule 704. Opinion on Ultimate Issue
(a) In General—Not Automatically Objection- Testimony in the form of an opinion or inference
able. An opinion is not objectionable just because it otherwise admissible is not objectionable because it
embraces an ultimate issue. embraces an ultimate issue to be decided by the trier
(b) Exception. In a criminal case, an expert witness of fact.
must not state an opinion about whether the defendant
did or did not have a mental state or condition that
constitutes an element of the crime charged or of a
defense. Those matters are for the trier of fact alone.
COMMENTARY
Rule 705. Disclosing the Facts or Data Underlying Rule 705. Disclosure of Facts or Data Underlying
an Expert’s Opinion Expert Opinion
Unless the court orders otherwise, an expert may The expert may testify in terms of opinion or
state an opinion—and give the reasons for it—without inference and give reasons therefor without first testi-
first testifying to the underlying facts or data. But the fying to the underlying facts or data, unless the court
expert may be required to disclose those facts or data on requires otherwise. The expert may in any event be
cross-examination. required to disclose the underlying facts or data on
cross-examination.
COMMENTARY
The defendant did not appeal the murder conviction, so the at ¶ 71. Relevant to the interpretation of Rule 705, the dissent
propriety of the firearm conviction was the only issue reviewed contended that the majority’s holding regarding the rule (an
by the Illinois Supreme Court. interpretation which, it must be stressed, had the concurrence
A four-member majority of the court reversed the firearm of only two justices) contravenes controlling law, focusing on
conviction. It held that a detective’s testimony, as an expert wit- Wilson and other supreme court precedent, as well as Rule 705
ness on street gangs, failed to provide the jury all the elements itself and its interplay with IRE 703.
listed in section 10 of the Illinois Streetgang Terrorism Omnibus There are two takeaways from Murray, one based on a rule
Prevention Act (“the Act”; 740 ILCS 147/10), thus failing to of evidence and the other relevant to prosecutions involving
define the Latin Kings—the defendant’s alleged gang—as a the offense of unlawful possession of a firearm by a street gang
street gang. The elements required by the Act include evidence member:
that establishes the alleged street gang was involved in “a • Only two justices called for a different interpre-
course or pattern of criminal activity” involving two or more tation of Rule 705 than that provided by Wilson v.
gang-related felony offenses during specified time periods. Clark and its progeny—an interpretation that has
Based on the absence of such evidence, the majority held that established the principles that an expert witness
the State had failed to establish the street gang status of the need not provide the underlying facts or data for
Latin Kings, and it thus failed to establish that the defendant an opinion and that the burden of attacking the
was a street gang member. opinion is placed on the party-opponent. The
The four justices in the majority agreed that, because the Wilson interpretation and that of its progeny has
expert witness had not provided evidence that satisfied the therefore not been altered.
Act’s statutory definitions of “street gang,” the State failed to • Based on the holding of four of the seven jus-
offer sufficient evidence to make its prima facie case. But two of tices, in future cases the State must accommodate
the four justices in the majority provided an opinion in special the requirements of section 10 of the Illinois
concurrence refusing to join with the other two justices in Streetgang Terrorism Omnibus Prevention Act for
their additional holding that IRE 705 (which is substantively the presentation of prima facie evidence to prove a
identical to its federal counterpart) “unambiguously requires” street gang’s identity.
experts to explain the reason underlying their opinions. The
Cross-Examination on Expert’s Own Reports and Reports of
two specially concurring justices contended that the majority’s Other Experts
reliance on that aspect of its opinion created tension with the In People v. Pasch, 152 Ill. 2d 133 (1992), the supreme court
court’s long-standing statements in Wilson v. Clark, 84 Ill. 2d held that, in addition to the propriety of examining an expert on
186 (1981) and its progeny and, contending that the portion reports that the expert relied upon (see People v. Silagy, 101 Ill.
of the opinion that relied on it was unnecessary, they rejected 2d 147, 171-72 (1984)), it is proper to question experts (in this
even the notion that Rule 705 applied, pointing out that “we case, psychiatrists testifying about the sanity of the defendant)
need not consider how, or even if, Rule 705 and Wilson apply.” concerning other experts’ reports and conclusions not relied
Murray. at ¶60. upon by the experts in forming their opinions, as long as the
In a lengthy dissent, three members of the court contended other experts’ reports are not substantively admitted.
that the expert witness’s testimony was sufficient to prove that In Karn v. Aspen Commercial Painting, Inc., 2019 IL App
the Latin Kings was a street gang and that the majority’s inter- (1st) 173194, a personal injury lawsuit, the appellate court held
pretation of the Act “will require the introduction of prejudicial that, where an expert’s opinion is based in part on false infor-
evidence to convict a defendant based on crimes he personally mation (in this case, reliance on a surveillance video depicting
may well have not committed or been involved in.” Murray. activities of a person whom the expert incorrectly assumed
to be the plaintiff), the opposing party is entitled to question based on his examination the latent print was defendant’s, he
the expert about the information upon which his opinion was gave no testimony as to how he arrived at his conclusion that
based, and the trial court’s refusal to allow such cross-examina- the latent print could belong only to the defendant. In reversing
tion constituted reversible error. the defendant’s conviction, the appellate court applied the de
Though not related to cross-examination of experts about novo standard of review, and held that the evidence provided
other expert opinions related to the same case, two Seventh an insufficient foundation for the admissibility of the fingerprint
Circuit decisions are noteworthy concerning cross-examination expert’s opinion, for the defendant had been deprived of the
about faulty expert opinions in a separate case. In both United ability to effectively cross-examine the expert, and an adequate
States v. Rivas, 831 F.3d 931 (7th Cir. 2016) and United States foundational basis for admissibility was essential for the jury
v. Bonds, 922 F.3d 343(7th Cir. 2019), defendants sought to to assess the credibility and weight of the expert’s testimony.
challenge the accuracy of fingerprint identification by introduc- Pointing out that, in People v. Ford, 239 Ill. App. 3d 314 (1992),
ing evidence about the FBI’s 2004 error in identifying Brandon admission of the fingerprint expert’s testimony was approved
Mayfield as a person whose fingerprints suggested involvement even though that expert also did not testify to finding any par-
in a terrorist bombing in Spain, resulting in his incarceration ticular number and features of like characteristics, the dissent-
for more than two weeks before the FBI acknowledged its ing judge in Safford contended that the expert’s testimony had
mistake. Both decisions held that the district court properly been properly admitted because it was related to the weight of
denied admission of the evidence; in Bonds the court rejected the expert’s opinion, not its admissibility.
the defendant’s effort to distinguish Rivas based on the fact Later, in People v. Negron, 2012 IL App (1st) 101194,
that the fingerprint examiner worked in the same division that another panel of the First District referred to Safford as “an
mistakenly identified Mayfield. Both decisions emphasized the outlier case,” noting that “no reported case since then has
defendant’s ability to challenge the accuracy of the procedures held that there must be a minimum number of points of
used without reference to the Mayfield case. fingerprint comparison or disclosure of a specific number of
points of similarity found by the expert.” Negron, at ¶ 44. The
Split Decisions Regarding Foundational Requirements for
Fingerprint Evidence, and Decisions Applying Rule 705 for Negron opinion cited the dissent in Safford, with one judge
Ballistics, DNA, and Shoeprint Evidence
writing a one-paragraph special concurrence underscoring his
As described below, there is a split in the holdings of the
“respectful disagreement with the majority holding in People
appellate court regarding the admissibility, as opposed to the
v. Safford” and his agreement with the dissent in that case. The
weight, of expert fingerprint evidence. As backdrop, note that
Negron court concluded its analysis by pointing out that, under
in People v. Campbell, 146 Ill. 3d 363 (1992), in pointing
Rule 705, “the number of points of comparison is part of the
out that in one case a fingerprint expert found five points of
facts underlying the expert opinion and the burden was on the
similarity and in another four, the supreme court noted that
defense to elicit such facts.” The court noted that the defendant
no Illinois case has expressly set out the minimum number of
had “performed a vigorous cross-examination” of the expert
points of similarity that are required to constitute a match of a
and that “the jury determined the weight of credibility was with
latent print to an exemplar.
the State’s expert.” Negron, at ¶45.
In People v. Safford, 392 Ill. App. 3d 212 (2009), the
In People v. Cline, 2020 Ill App (1st) 172631, appeal
appellate court held that there was an insufficient foundation
allowed November 18, 2020, Docket No. 126383, a decision
for admissibility of a fingerprint expert’s opinion, where the
with Safford implications, the appellate court reversed with-
expert listed no points of comparison in his report; did not
out remand a bench trial residential burglary conviction that
record how or why he reached his conclusion that the latent
was based on the fingerprint expert’s determination that the
print matched the known print; and, though he testified that
fingerprint found in the burglarized premises on a case for
a missing headphone, the determination of which was based case, reflected the expert’s inability to specify which individual
on “analysis,” “comparison,” and “evaluation”—three prongs characteristics of the compared bullets matched—went to the
of the accepted standard analytical procedure of ACE-V for weight of the testimony and not to its admissibility.
matching prints—because the expert did not provide evidence People v. Robinson, 2018 IL App (1st) 153319, ¶¶ 17-19
of “verification” by another expert, which is the fourth prong of also addressed the field of ballistics identification. It agreed
ACE-V procedure. Rejecting the State’s argument that the testi- with the line of cases that applied abuse of discretion as the
mony was merely foundational and not part of the substantive standard of review, rejecting Safford’s holding that the standard
evidence, in a supplemental opinion on denial of rehearing, was de novo. Pointing out that Safford “has been heavily criti-
the court held that the proper performance of testing protocol cized, and characterized as an ‘outlier,’” and that it could “find
is a necessary substantive element of the expert’s testimony and no published case following Safford’s reasoning,” the appellate
the absence of such testimony results in a missing substantive court held “[i]t is the defendant’s right and burden to elicit the
element. The decision does not address IRE 705 nor the gen- facts underlying an expert’s opinion in cross-examination.”
erally accepted principle that the burden of rebutting expert People v. Bradford, 2019 IL App (4th) 170148, is another
testimony is on the opposing party. Note that on November decision that addresses the propriety of expert opinion on
18, 2020, the supreme court granted leave to appeal in Cline ballistics. Citing Robinson and Simmons, it follows the line
(Docket No. 172631), so it will have the final say on the admis- of decisions that disagrees with the holding in Safford. The
sibility of the fingerprint evidence. appellate court held that the defendant could not satisfy the
Note, too, that in People v. Cross, 2021 IL App (1st), where two Strickland prongs in contending that his counsel rendered
an expert on latent fingerprint examination described the ACE-V ineffective assistance by not objecting to what he claimed was
methodology but, as in Cline, did not testify that he performed unreliable firearm expert’s testimony due to an inadequate
the verification by an independent examiner required under foundation for her testimony.
that methodology, the defendant, who had not objected at trial People v. Wilson, 2017 IL App (1st) 143183, is another
to the admissibility of the examiner’s testimony, contended appellate court decision that declined to follow Safford. The
that, because verification was not satisfied, the examiner’s issue in Wilson was whether the State’s DNA evidence lacked
testimony was improperly admitted. Reasoning that “ issues an adequate foundation because the Illinois State Police foren-
regarding an expert’s application of techniques go to the weight sic scientist did not explain how she came to the conclusion
of the evidence, rather than its admissibility” (Cross, at ¶ 21), that the DNA profile on a hat matched the defendant’s DNA
the examiner’s testimony was not improperly admitted. profile. Citing both FRE 705 and IRE 705 and the supreme
People v. Simmons, 2016 IL App (1st) 131300, ¶¶ 106- court’s statement in Wilson v. Clark, 84 Ill. 2d 186, 194 (1981),
131, which dealt with ballistics comparison, also challenged that “under Rule 705 the burden is placed upon the adverse
Safford. Citing numerous Illinois Supreme Court decisions, party during cross-examination to elicit the facts underlying the
the appellate court pointed out that Safford’s holding that expert witness,” the court held that, because “the basis of [the
the de novo standard of review applies to the determination forensic expert’s] opinion was a matter for cross-examination,
of whether there was a sufficient foundation for an expert’s [her] failure to disclose it on direct examination did not under-
testimony was based on inappropriate authority. It further mine the foundation of her testimony.” Wilson, at ¶43.
pointed out that, based on numerous supreme court decisions, In People v. Simpson, 2015 IL App (1st) 130303, though
the proper standard of review is abuse of discretion. Finally, not expressly rejecting Safford, the appellate court cited IRE
it concluded that Safford’s analysis was flawed, and that the 705 in holding that the burden was on the defendant to elicit
expert’s testimony about ballistics comparison in this case, like the number of points of comparison that existed between the
the fingerprint comparison in Safford—testimony that, in this defendant’s shoe and a footwear impression found at the scene
of the crime. Reasoning that “Rule 705 permits an expert to conditional release of the respondent who had been adjudi-
give an opinion without divulging the basis for it and shifts cated a sexually violent person, the appellate court held that
the burden to the opposing party to elicit and to explore the the trial court did not abuse its discretion in allowing testimony
underlying facts or data on cross-examination,” the appellate by a psychologist, a Department of Human Services supervisor,
court held that “[a]ny issues regarding the details [the expert] who failed to maintain her notes from interviews she con-
provided to support her opinion that Simpson’s shoeprint ducted with the respondent and with a licensed clinical social
matched the shoeprint found at the crime scene went to worker who was respondent’s conditional release supervisor.
weight, not admissibility.” Simpson, at ¶¶ 37, 38. The court The psychologist testified that she destroyed the notes from her
therefore affirmed the trial court’s admission of the expert’s interviews once she drafted her report, and that the information
shoeprint-comparison evidence. from her notes was included in her report. Pointing out that the
Note that the Seventh Circuit Court of Appeals decision in respondent had the opportunity to cross-examine the psychol-
United States v. Herrera, 704 F.3d 480 (7th Cir. 2013), offers ogist and citing IRE 705’s provisions and the fact that the rule
an interesting discussion concerning opinion evidence related places the burden on the adverse party during cross-examina-
to fingerprint comparison and DNA analysis, and concerning tion to elicit facts underlying the expert opinion, the appellate
admissibility versus weight of evidence. court held that the trial court had not abused its discretion in
Destroyed Notes Imported into Expert’s Report allowing the psychologist to testify. Tungent, at ¶46.
In In re the Commitment of Steven Tungent, 2018 IL App
(1st) 162555, an appeal from the trial court’s revocation of the
Rule 801. Definitions That Apply to This Article; Rule 801. Definitions
Exclusions from Hearsay The following definitions apply under this article:
(a) Statement. “Statement” means a person’s oral (a) Statement. A “statement” is (1) an oral or writ-
assertion, written assertion, or nonverbal conduct, if the ten assertion or (2) nonverbal conduct of a person, if it
person intended it as an assertion. is intended by the person as an assertion.
(b) Declarant. “Declarant” means the person who (b) Declarant. A “declarant” is a person who makes
made the statement. a statement.
(c) Hearsay. “Hearsay” means a statement that: (c) Hearsay. “Hearsay” is a statement, other than
(1) the declarant does not make while testifying one made by the declarant while testifying at the trial
at the current trial or hearing; and or hearing, offered in evidence to prove the truth of the
(2) a party offers in evidence to prove the truth of matter asserted.
the matter asserted in the statement. (d) Statements Which Are Not Hearsay. A state-
(d) Statements That Are Not Hearsay. A statement ment is not hearsay if
that meets the following conditions is not hearsay: (1) Prior Statement by Witness. In a criminal
(1) A Declarant-Witness’s Prior Statement. The case, the declarant testifies at the trial or hearing
declarant testifies and is subject to cross-examination and is subject to cross-examination concerning the
about a prior statement, and the statement: statement, and the statement is
(A) is inconsistent with the declarant’s tes- (A) inconsistent with the declarant’s testimony
timony and was given under penalty of perjury at the trial or hearing, and—
at a trial, hearing, or other proceeding or in a (1) was made under oath at a trial, hearing,
deposition; or other proceeding, or in a deposition, or
(B) is consistent with the declarant’s testimony (2) narrates, describes, or explains an event
and is offered or condition of which the declarant had per-
(i) to rebut an express or implied charge sonal knowledge, and
that the declarant recently fabricated it or acted (a) the statement is proved to have been
from a recent improper influence or motive in written or signed by the declarant, or
so testifying; or (b) the declarant acknowledged under
(ii) to rehabilitate the declarant’s credibility oath the making of the statement either in
as a witness when attacked on another ground; the declarant’s testimony at the hearing or
or trial in which the admission into evidence
(C) identifies a person as someone the declar- of the prior statement is being sought or at
ant perceived earlier. a trial, hearing, or other proceeding, or in a
(2) An Opposing Party’s Statement. The state- deposition, or
ment is offered against an opposing party and: (c) the statement is proved to have been
(A) was made by the party in an individual or accurately recorded by a tape recorder,
representative capacity; videotape recording, or any other similar
electronic means of sound recording; or
(B) is one the party manifested that it adopted (B) one of identification of a person made
or believed to be true; after perceiving the person.
(C) was made by a person whom the party (2) Statement by Party-Opponent. The state-
authorized to make a statement on the subject; ment is offered against a party and is (A) the party’s
(D) was made by the party’s agent or employee own statement, in either an individual or a represen-
on a matter within the scope of that relationship tative capacity, or (B) a statement of which the party
and while it existed; or has manifested an adoption or belief in its truth,
(E) was made by the party’s coconspirator or (C) a statement by a person authorized by the
during and in furtherance of the conspiracy. party to make a statement concerning the subject,
The statement must be considered but does not by or (D) a statement by the party’s agent or servant
itself establish the declarant’s authority under (C); the concerning a matter within the scope of the agency
existence or scope of the relationship under (D); or the or employment, made during the existence of the
existence of the conspiracy or participation in it under relationship, or (E) a statement by a coconspirator
(E). of a party during the course and in furtherance of
the conspiracy, or (F) a statement by a person, or
a person on behalf of an entity, in privity with the
party or jointly interested with the party.
COMMENTARY
Illinois has numerous exceptions to the hearsay rule provided criminal cases: the concern that the trier of fact (with primary
by statutes, all of which may be considered residual excep- focus on juries) might not properly evaluate statements made
tions. The Confrontation Clause in the sixth amendment to the outside its presence, and thus might give undue weight to such
U.S. Constitution allays concerns about the unreliability of evidence. The rationale underlying the rule against hearsay is
out-of-court, incriminating statements against an accused in a that out-of-court statements are not subject to cross-examina-
criminal case. (See the Author’s Commentary on Non-Adoption tion, frequently not under oath, and are not subject to the trier’s
of Fed. R. Evid. 807). review of the demeanor of the out-of-court declarant. To allay
Though the hearsay rule provides an evidentiary rule and those concerns, both the exclusions to the hearsay rule (in Rule
not a constitutional mandate, a similar concern about reliabil- 801(d)) and the exceptions to the rule (in Rules 803 and 804)
ity applies to the admission of a declarant’s out-of-court state- allow for the substantive admission of out-of-court statements
ments to prove the truth of the matter asserted in both civil and that are deemed to possess sufficient indicia of reliability.
Author’s Commentary on Ill. R. Evid. 801(a)
IRE 801(a) is identical to the wording of the federal rule it termed this matter of first impression in Illinois, that “implied
before the latter’s amendment solely for stylistic purposes assertions of fact contained within mail and other documents
effective December 1, 2011. The 2011 amendment to the are not hearsay.” Id. at ¶ 3; ¶¶ 145-48. The court stressed that
federal rule resulted—without substantive change—in combin- such documents (such as the phone bill and an envelope from
ing a “person’s oral assertion, written assertion, or nonverbal an insurance company in this case) did not constitute a hearsay
conduct” in a single rule without subdivisions. In contrast, IRE assertion that the defendant lived at the relevant address in
801(a) has two subdivisions. IRE 801(a)(1), which defines a violation of IRE 801(a)(2), but were merely properly admitted
“statement” that is “an oral or written assertion,” is what the circumstantial evidence of the defendant’s relationship to the
hearsay rule typically addresses. IRE 801(a)(2), which offers a relevant location.
separate definition of a statement as “nonverbal conduct of a
People v. Collins: Important Anticipated Supreme Court Opinion
person, if it is intended by the person as an assertion,” is less on Hearsay
“admissible irrespective of its compliance with hearsay rules.” erred in finding the Law Enforcement Officer Body-Worn
Collins, at ¶ 21. In doing so, the majority provided a lengthy Camera Act inapplicable, contending that there is no conflict
analysis for its rejection of section 10-30 of the Act, which with the Illinois Rules of Evidence and that the Act’s “explicit
reads, “The [body-worn camera] recordings may be used as purpose,” fortified by section 10-30, asserting that “[o]n its face,
evidence in any administrative, judicial, legislative, or disci- the Act unambiguously allows officer body camera recordings,
plinary proceeding.” 50 ILCS 706/10-30. The majority also including both audio and visual footage, to be admitted in a
rejected the State’s harmless error contention, thus reversing judicial proceeding without any express limitation” Collins, at
the defendant’s convictions. It remanded the matter to the ¶59.
circuit court for retrial. As noted, the supreme court has allowed the State’s petition
The dissenting justice asserted that the trial court had prop- for leave to appeal in Collins, so it will make the final determi-
erly admitted the recorded statements and that the majority nations concerning the hearsay issues in this case.
Author’s Commentary on Ill. R. Evid. 801(c)
IRE 801(c) is identical to the wording of the federal rule Graham, Cleary & Graham’s Handbook of Illinois
before the latter’s amendment solely for stylistic purposes effec- Evidence § 801.1, at 564-65 (5th ed. 1990). See
tive December 1, 2011. The definition it provides is consistent People v. Spicer (1979), 79 Ill. 2d 173, 179, 402
with prior Illinois law. See People v. Carpenter, 28 Ill. 2d 116 N.E.2d 169 (where this court held that prior incon-
(1963) (offering substantially the same definition of hearsay); sistent hearsay statements of an in-court witness
People v. Olinger, 176 Ill. 2d 326, 357 (1997) (“Hearsay evi- cannot be used as substantive evidence).”
dence is an out-of-court statement offered to prove the truth In People v. Lambert, 288 Ill. App. 3d 450 (1997), also well
of the matter asserted, and it is generally inadmissible due to before Illinois’ adoption of codified evidence rules, the appel-
its lack of reliability unless it falls within an exception to the late court provided this explanation for the non-admission of
hearsay rule”). out-of-court statements even when the declarant is the witness:
Witness as Out-of-Court Declarant “Illinois follows the common-law rule that, where
Note that, except for the Rule 801(d)(1) analysis discussed admission is allowed, a prior consistent statement
below, the fact that the witness is both the out-of-court declar- is permitted solely for rehabilitative purposes and
ant and the witness is not relevant in hearsay analysis. In People not as substantive evidence. The rationale for this
v. Lawler, 142 Ill. 2d 548 (1991), well before Illinois adopted common-law rule is that corroboration by repeti-
codified evidence rules, the supreme court reasoned as follows tion preys on the human failing of placing belief
about the non-admissibility of such evidence: in that which is most often repeated. Credibility
“The State argues that a statement from a witness should not depend upon the number of times a
as to his own prior out-of-court statement cannot witness has repeated the same story, as opposed
violate the hearsay rule, because the witness will to the inherent trustworthiness of the story. Where
testify at trial with the safeguards of an oath and the common law applies and a prior consistent
cross-examination, reducing the risk of perjured statement is admitted into evidence, an instruction
testimony. Adoption of the State’s rationale would from the court instructing the jury of its limited
essentially obliterate a good portion of the hearsay rehabilitative purpose is proper.” Lambert, 288 Ill.
rule. As has been noted, ‘[t]he presence or absence App. 3d at 457-58 (citations and internal quotation
in court of the declarant of the out-of-court state- marks omitted).
ment is *** irrelevant to a determination as to The quoted statement from Lambert is consistent with
whether the out-of-court statement is hearsay.’ M. Illinois’ common-law holdings on the non-admission, as
substantive evidence (i.e., for the truth), of prior consistent of witness A testifying that “B told me that event X occurred.” If
statements, which explains why FRE 801(d)(1)(B) was not A’s testimony is offered for the relevant purpose of establishing
codified in the Illinois evidence rules. Consistent with the that B said this, it is admissible; if offered to prove that event X
quoted statement, in Illinois, prior consistent statements, even occurred, it is inadmissible); People v. Banks, 237 Ill. 2d 154
those admitted “to rebut an express or implied charge against (2010) (approving admission of a series of flash messages over
the declarant of recent fabrication or improper influence or police radios, holding that “admission of an out-of-court state-
motive,” are admitted for rehabilitative purposes only, and not ment that is not offered to prove the truth of the matter asserted
admitted substantively as non-hearsay or as an exception to but rather to explain the investigatory procedure followed in
the hearsay rule. See IRE 613(c), which provides the relevant a case is proper,” and that confrontation clause was not vio-
Illinois principles. lated because that clause “does not bar the use of testimonial
Different Analysis under Rule 801(d)(1) statements for purposes other than establishing the truth of
Note, however, that the foregoing hearsay analysis differs the matter asserted.”). See also Khungar v. Access Community
under FRE 801(d)(1)(A) and under IRE 801(d)(1)(A) and (B) Health Network, 985 F.3d 565 (7th Cir. 2021) (in this Title VII
when the out-of-court declarant is also the witness. That is so action, holding that the complaints against the plaintiff were
because, under the first part of Rule 801(d)(1), an out-of-court not hearsay because they were not offered to show that the
statement is not hearsay if “the declarant testifies at the trial plaintiff in fact engaged in the conduct complained of, but to
or hearing and is subject to cross-examination concerning the show the state of mind of plaintiff’s supervising physician when
statement,” and the other requirements of the rule are satisfied. he made his recommendation regarding plaintiff’s termination
In those instances, the fact that the out-of-court declarant and (Khungar, at 575)).
the in-court witness is the same person is relevant to the sub- In People v. Moss, 205 Ill. 2d 139 (2001), where the defen-
stantive admissibility of the out-of-court-statement. dant was convicted of murdering his ex-girlfriend and her
Note also that, pursuant to Crawford v. Washington, 541 daughter, and in People v. Lovejoy, 235 Ill. 2d 97 (2009), where
U.S. 36 (2004), in a criminal case, certain “testimonial state- the defendant was convicted of murdering his stepdaughter,
ments” made out of court are not violative of the Confrontation evidence was admitted that the daughter of the ex-girlfriend in
Clause and are allowed admissibility by statutes and rules, Moss and the stepdaughter in Lovejoy had informed numerous
where the out-of-court declarant is present in court and subject persons about the defendant’s sexual assaults against each of
to cross-examination. them. In each case, the supreme court held that the evidence
Statements Offered for Non-Hearsay Purpose of the statements about the sexual assaults was not introduced
When an out-of-court statement is offered for a proper pur- to prove the fact that each victim had been sexually assaulted
pose—other than “to prove the truth of the matter asserted”—it by each defendant, but to establish the defendant’s motive for
is not hearsay. See, e.g., People v. Prather, 2012 IL App (2d) killing that victim: that each victim had said that each defen-
111104 (where defendant was charged with the offense of com- dant had assaulted her. The truth of each victim’s out-of-court
mitting an aggravated battery on a victim whom he knew was statements was irrelevant; what was relevant was that each
pregnant, evidence from the victim that she showed defendant victim’s statements provided a motive for each defendant’s
a home pregnancy test that indicated she was pregnant was not offense. In each case, the supreme court held that the victim’s
inadmissible as hearsay because it was not offered to establish out-of-court statements were properly admitted—not to prove
that the victim was pregnant, but to prove that defendant had the truth of the statements, but to provide a motive for each
notice or knowledge of the substantial probability that the defendant’s killing each victim.
victim was pregnant when he committed the offense); People v. An example of a case in which an out-of-court statement
Carpenter, 28 Ill. 2d 116, 121 (1963) (using Wigmore’s example should have been admitted in evidence to explain the effect on
the listener is McIntyre v. Balgani, 2019 IL App (3d) 140543, See also People v. Jones, 153 Ill. 2d 155 (1992) (holding
¶¶ 91-96 (although ultimately concluding that its exclusion as that a police officer may testify to investigatory procedures,
hearsay was harmless, holding that a statement by one physi- including the existence of conversations, as long as the sub-
cian to another physician about a patient’s care was not offered stance of conversations does not go to the very essence of the
to prove the truth of any factual matter asserted by the declarant dispute); People v. Simms, 143 Ill. 2d 154, 174 (1991) (holding
about his treatment recommendations being correct or medi- that a police officer “may testify about his conversations with
cally sound, but rather to show why doctors subsequently acted others, such as victims or witnesses, when such testimony is
as they did). See also People v. Saulsberry, 2021 IL App (2d) not offered to prove the truth of the matter asserted by the
181027 (holding that evidence of a gang member’s order to other, but is used to show the investigative steps taken by the
a trial witness, who was then a fellow gang member, to shake officer. Testimony describing the progress of the investigation
the defendant’s hand, while informing the witness (the fellow is admissible even if it suggests that a nontestifying witness
gang member) that defendant was “the one who took care of implicated the defendant.”); People v. Johnson, 116 Ill. 2d 13
it,”—referring to the shooting of a rival gang member, leading (1987) (though an officer’s testimony recounting steps taken in
to the handshake as a show of respect to defendant—was the course of an investigation may be admissible without vio-
admissible for its effect on the witness, and was not hearsay lating a defendant’s constitutional rights, detective’s testimony
(see id. at ¶¶74-88)). that after his arrest codefendant implicated defendant and
Investigatory Procedures said defendant was the gunman constituted hearsay); People
Though sometimes incorrectly referred to as an exception to v. Davison, 2019 IL App (1st) 161094 (detective’s testimony
the hearsay rule, the “investigatory procedures” or the “course that after talking to others he began looking for three persons,
of investigation” doctrine, allows the admission of evidence of including defendant, was not hearsay because there was no
the investigation performed by law enforcement officers, which testimony about the source of the information, and defendant’s
includes interviews and conversations with witnesses, even right under the confrontation clause of the sixth amendment
where an inference is created that officers received and acted was not violated); People v. Sardin, 2019 IL App (1st) 170544
on the information related—as long as the contents of such (evidence that detective talked to the mother of an eyewitness
interviews or conversations are not disclosed. and then returned to the police station and generated a photo
For a discussion of “the course of investigation” doctrine, array that included defendant did not violate the rule against
see People v. Risper, 2015 IL App (1st) 130993, ¶¶ 39-42 hearsay or the confrontation clause, for there was no evidence
(discussing cases in explaining how testimony recounting about what the mother had said); People v. Short, 2020 IL
steps taken in a police investigation does not violate either App (1st) 162168, ¶¶ 68-73 (detective’s testimony that he
the hearsay rule or a defendant’s sixth amendment right to investigated defendant after talking to codefendant may have
confront witnesses against him, as long as the substance of implied that codefendant implicated defendant, but it was
statements made by nontestifying witnesses to an officer in the proper because there was no testimony about the content of
course of investigation is not disclosed to the jury). See also any statement by the codefendant).
People v. Ochoa, 2017 IL App (1st) 140204 (citing cases and Decisions in the Seventh Circuit Court of Appeals are some-
emphasizing “distinction between an officer testifying to the what similar to those in Illinois, but with a twist. Consistent with
fact that he spoke to a witness without disclosing the contents Illinois decisions, in United States v. Silva, 380 F.3d 1018, 1020
of that conversation and an officer testifying to the contents of (7th Cir. 2004), the court rejected the course of investigation
the conversation,” citing People v. Trotter, 254 Ill. App. 3d 514, rationale for admitting evidence when the evidence was not
527 (1993)). relevant except for its truth. In contrast, in its recent decision in
United States v. Law, 990 F.3d 1058 (7th Cir. 2021), the court
approved the admission in evidence of “copious” statements trative and demonstrate a somewhat different approach to the
made to two Department of Homeland Security agents by issue. Seventh Circuit decisions also provide insight.
two women alleged to be victims of sex trafficking. Citing a In People v. Theis, 2011 IL App (2d) 091080, ¶ 33, the
number of previous Seventh Circuit opinions which held that Second District held that “an out-of-court statement that is
“statements offered to ‘establish the course of the investiga- necessary to show its effect on the listener’s mind or explain
tion,’ rather than to prove the truth of the matter asserted, are the listener’s subsequent actions is not hearsay.” It then went
nonhearsay and therefore admissible” (Law, at 1061), the court on to note that, without the detective’s statements, “defendant’s
reasoned that answers would have been nonsensical.”
“this complex investigation required explanation In People v. Hardimon, 2017 IL App (3d) 120772, the Third
and context. It involved several businesses, District held that “[g]enerally, statements made by an investi-
multiple witnesses, and spanned two continents. gating officer during an interview with the suspected defendant
This case differs from Silva where the government are admissible if they are necessary to demonstrate the effect
sought to admit evidence describing the “course of the statement on the defendant or to explain the defendant’s
of investigation” that consisted solely of state- response.” Hardimon, at ¶ 36. The Hardimon court went on
ments spoken by a non-testifying informant.” Id. to note, however, that the final two-thirds of the interview
at 1063. The court further reasoned that “unlike contained statements of the detectives that were denied by the
the testimony in Silva, the contested statements defendant and “served only to impermissibly bolster the State’s
by the investigators here were corroborated by case and inflame the passions of the jury.” Id. at ¶37. The court
the testimony of [the two women]. So even if the thus held that the statements made by the detectives in the final
government offered the testimony for its truth, it two-thirds of the interview with the defendant should not have
would have been cumulative of other uncontested been admitted.
evidence. Although the course of investigation Finally, in People v. Whitfield, 2018 IL App (4th) 150948,
evidence in this case was ample, its admission ¶ 47, the Fourth District held that “[h]earsay is not involved
was not a subterfuge for the government to place where a challenged statement ‘is admissible not for its truth,
impermissible hearsay before the jury, and the but for its effect on the listener.’ People v. Britz, 112 Ill. 2d 314,
probative value of the evidence in explaining 320, 493 N.E.2d 575, 578 (1986). In other words, ‘[a]n out-of-
the complex investigation outweighed any unfair court statement offered to prove its effect on a listener’s mind
prejudice to Law.” Id. or to show why the listener subsequently acted as he did is
The court also pointed out that the district court “repeatedly not hearsay and is admissible.’” Whitfield, at ¶ 47. Citing both
and correctly instructed the jury that the portions of the agents’ Theis and Hardimon, the Whitfield court went on to note that
testimony on these subjects could be considered only for the its decision is “mostly consistent” with those decisions, but it
limited purpose of explaining the investigation and not for their differed with the holdings in those cases insofar as they allowed
truth.” Id. admissibility of the questioning officer’s statements only “when
Statements Offered for Context they are ‘necessary’ to show the effect of the statement on the
It often occurs that defendants in criminal cases object, defendant or to explain the defendant’s subsequent actions.”
on the basis of hearsay, to statements made by police officers Whitfield, at ¶ 48. The court’s disagreement with the other
while interrogating defendants. Three decisions of the appellate holdings was based on their requirement of “a higher degree
court, where the court addressed the admissibility of statements of probativeness regarding an officer’s statements or questions
made by police officers while questioning defendants, are illus- through their use of the word ‘necessary.’” Id. The Whitfield
court explained:
“We find that questions and statements by police a felon based on harmless error, holding that it was error for
officers during a defendant’s interrogation may the district court to admit the testimony of police officers that
still possess probativeness where they are simply they went to the location from which the defendant fled and
‘helpful,’ although perhaps not essential or ‘nec- disposed of a handgun, based on a dispatcher’s report about
essary,’ to a jury’s understanding of the defendant’s suspected drug sales at that location, because the reason why
responses or silence.” Id. the officers went to that location was not disputed at trial and
Seventh Circuit decisions are in agreement with the general had no probative value concerning the charge of possessing a
holdings of Illinois decisions: When out-of-court statements gun).
are offered to provide context for other admissible statements, Questions and Commands Are Not Hearsay
they are not hearsay because they are not admitted for their Citing its own precedent and that of other federal circuits,
truth. See e.g., United States v. Foster, 701 F.3d 1142 (7th Cir. the Seventh Circuit Court of Appeals pointed out that a question
2012) (citing other cases and holding that recorded statements is neither a “statement” nor an “assertion” under Rule 801(c).
of a confidential informant admitted into evidence were not U.S. v. Love, 706 F.3d 832 (7th Cir. 2013) (quoting the 1972
hearsay because they provided context for defendant’s respon- advisory committee’s note to FRE 801(a) that “nothing is an
sive statements in sale of crack cocaine prosecution, and thus assertion unless intended to be one,” in holding that a question
did not violate the confrontation clause under the analysis is not hearsay).
in Crawford); United States v. Norton, 893 F.3d 464 (7th Cir. In contrast, United States v. Pulliam (cited in the last
2018) (informant’s recorded statements provided context for paragraph of the heading just above) provides an example of
the statements and actions of other participants in the conver- a situation where a question by a defendant while being inter-
sations); United States v. Fernandez, 914 F.3d 1105 (7th Cir. viewed by police constituted a statement and thus was properly
2019) (although ultimately deemed to be harmless, holding excluded as inadmissible hearsay. In that case, involving defen-
that trial court’s restriction of cross-examination of police offi- dant’s possession of a handgun that police observed him throw
cer about his side of the interrogation of a key witness against away while he fled from them, defendant denied possession of
defendant was error for it affected the ability of defendant to the gun and asked “What gun?” In holding that the district court
establish the full content and context of the witness’s changing properly excluded that statement, the 7th Circuit reasoned that
stories); United States v. Jackson, 940 F.3d 347 (7th Cir. 2019) “‘what gun,’ in context, reads as a substantive assertion meant
(citing Foster and United States v. Gaytan, 649 F.3d 573 (7th to deny knowledge rather than a question meant to elicit a
Cir, 2011) in holding that the recorded statements of a non-tes- response.” Pulliam, at 783-84.
tifying confidential source provided context for defendant’s Likewise, in Baines v. Walgreen Co., 863 F.3d 656 (7th Cir.
statements and did not trigger a confrontation clause violation). 2017), the Seventh Circuit held that commands are not hearsay,
See also United States v. Lewisbey, 843 F.3d 653 (7th Cir. 2016) for “statements assert propositions that may be true or false.
(holding text messages received by defendant were not hearsay They are distinct from other forms of communications, such as
for they provided context for his own messages), and United questions or commands. [A] command is not hearsay because
States v. Smith, 816 F.3d 379 (7th Cir. 2016) (by using examples it is not an assertion of fact.” Baines, 706 F.3d at 662, citing
of conversations between hypothetical informant and defen- United States v. White, 639 F.3d 331, 337 (7th Cir. 2011).
dant, eschewing “context” and holding that statements were Effect of Not Objecting to Hearsay
neither hearsay or testimonial statements). “It is well established that when hearsay evidence is admit-
But note the Seventh Circuit’s rejection of “context” in ted without an objection, it is to be considered and given its
United States v. Pulliam, 973 F.3d 775 (7th Cir. 2020) (though natural probative effect.” Jackson v. Board of Review of Dept.
affirming defendant’s conviction of possession of a firearm by of Labor, 105 Ill. 2d 501, 508-09 (1985) (citing other supreme
court cases for the principle). For recent cases demonstrating ¶¶ 64-67, where the pro se respondent left the courtroom
forfeiture for not objecting to hearsay, see In re C.J., a Minor, during a hearing, despite the trial court’s admonition that issues
2020 IL App (2d) 190824, ¶50, and In re Marriage of Francesco would be resolved without her input if she left.
Potenza and Vanessa Wereko, 2020 IL App (1st) 192454,
Author’s Commentary on Ill. R. Evid. 801(d)(1)
FRE 801(d)(1)(B) Not Adopted made under oath but also gave them substantive weight. The
FRE 801(d)(1)(B) was not adopted. That is so because Illinois 1984 addition of section 115-10.1 to the Code of Criminal
does not allow prior consistent statements to be admitted Procedure did likewise in Illinois criminal cases, but it also
substantively (i.e., for the truth of the statement), but only for provided even more instances in which prior inconsistent state-
rebuttal or rehabilitative purposes, consistent with the common ments are admissible substantively in Illinois criminal cases (as
law rule. See IRE 613(c), which is Illinois’ counterpart to FRE is illustrated in codified IRE 801(d)(1)(A)(2)).
801(d)(1)(B), and the commentaries addressing the rule’s The problem of turncoat witnesses was a primary basis for
non-adoption infra. the introduction of FRE 801(d)(1)(A); it was an even greater
incentive for the introduction of section 115-10.1 in Illinois.
IRE 801(d)(1)(A)—Based on an Illinois Statute—Applies Only in
Criminal Cases IRE 801(d)(1)(A)(1): Prior Inconsistent Statements under Oath
In federal courts, FRE 801(d)(1)(A) applies both to civil and In criminal cases (but not in civil cases), IRE 801(d)(1)(A)
criminal cases. In Illinois, IRE 801(d)(1)(A)(1) is substantively (1), like FRE 801(d)(1)(A), allows substantive admissibility
identical to FRE 801(d)(1)(A), except that the Illinois rule does (i.e., admissible to prove the truth of the matter asserted) for a
not apply to civil cases. The Illinois rule applies only to criminal witness’s prior inconsistent statements made under oath. Under
cases. Thus, in Illinois civil cases, prior inconsistent statements the rule, such statements are admissible as “not hearsay,” and
under oath have impeachment value, but they are not substan- the trier of fact is thus free to place weight on what the witness
tively admissible as “not hearsay.” testifies to in court or on the inconsistent statement the witness
Both IRE 801(d)(1)(A)(1) and IRE 801(d)(1)(A)(2) merely previously gave under oath.
codify section 115-10.1 of the Code of Criminal Procedure of
Example of an Application of Both IRE 801(d)(1)(A)(1) and FRE
1963 (725 ILCS 5/115-10.1), which is provided in the appendix 801(d)(1)(A) where a Prior Inconsistent Statement is Given under
Oath
to this guide at Appendix I. Because that statute predates the
The recent Seventh Circuit decision in United States v.
adoption of the Illinois Rules of Evidence, the codified rules
Shaffers, ___ F.4th ___, No. 21-1134 (7th Cir. January 5, 2022),
do not represent any change in Illinois law. Nevertheless, in
illustrates an application not only of FRE 801(d)(1)(a) but also
criminal cases, IRE 801(d)(1)(A)(2) significantly expands the
of its identical counterpart (in criminal cases) in IRE (d)(1)(a)
scope of FRE 801(d)(1)(A).
(1). In that case, a prosecution for possession of a weapon by a
Significance of the 801(d)(1)(A) Rules
convicted felon, a witness, who had been a passenger in defen-
The 801(d)(1)(A) rules—both the federal and Illinois
dant’s car where a gun attributed to defendant was recovered
versions—abrogate prior common law principles. That is so
by police, testified under oath before a federal grand jury that
because, under the common law, evidence of prior inconsis-
she had not known there was a gun in the car, that she had seen
tent statements was admissible only for impeachment purposes
the police remove the gun from under the driver’s seat, and
(i.e., only to cast doubt on the credibility of the witness’s tes-
that the gun was not hers. At trial, the witness disclaimed any
timony). They were not admissible substantively (i.e., to prove
memory of the events in question or testifying before the grand
the truth of the matter asserted). The 1975 introduction of the
jury. Over a defense objection, the district court permitted her
federal evidence rules altered that. FRE 801(d)(1)(A) provided
grand jury testimony to be used as substantive evidence under
not only impeachment value to prior inconsistent statements
FRE 801(d)(1)(A) (which, in a criminal case, is identical to IRE IRE 801(d)(1)(A)(2) has no federal counterpart. As is the case
801(d)(1)(A)(1)), and she read a transcript of that testimony to with IRE 801(d)(1)(A)(1), when the requirements of IRE 801(d)
the jury. Defendant’s counsel then cross-examined her. He (1)(A)(2) are satisfied, the out-of-court statements are admissi-
inquired into her lack of memory and asked if it was because ble substantively as not hearsay, and the trier of fact may give
she had been drinking on the night of her arrest. Counsel weight either to the witness’s testimony in court or to the prior
also questioned whether she was claiming not to remember inconsistent statement.
anything because she feared prosecution. And he asked her to
Meaning of “Event or Condition of Which Declarant Had
confirm that the government was paying for her airline ticket Personal Knowledge”
and hotel during the trial, which she did. In People v. Simpson, 2015 IL 116512, although the
On appeal from his conviction, in response to defendant’s supreme court did not specifically refer to IRE 801(d)(1)(A)
contention that the district court’s decision allowing the (2), by construing the statute upon which the rule is based, the
grand jury testimony as substantive evidence violated the court provided the definitive statement about the meaning of
Confrontation Clause, the circuit court held that admission “an event or condition of which the declarant had personal
of the witness’s grand jury testimony did not violate the knowledge.” The appeal in Simpson was from the appellate
Confrontation Clause, because defendant had an opportunity court’s reversal of the defendant’s jury-trial conviction for
to cross-examine the witness and expose weaknesses in her first-degree murder. At trial, after a witness testified to a loss
answers to the jury. In support of its holding, the Seventh Circuit of memory both as to what the defendant had told the witness
cited numerous United States Supreme Court and Seventh and as to what the witness had told the police, the State played
Circuit decisions justifying the admission of prior testimony for the jury a videotape of the witness informing police of the
given under oath at a trial or hearing, where the witness testi- incriminating information the defendant had shared with the
fies inconsistent withe that prior testimony or, as here, claims witness about the defendant’s role in killing the victim. Because
memory loss and is subject to cross-examination. defense counsel had failed to object to the State’s playing the
videotape, on appeal the defendant claimed ineffective assis-
IRE 801(d)(1)(A)(2): Broader Admissibility of Prior Inconsistent
Statements tance of counsel.
In criminal cases, moreover, IRE 801(d)(1)(A)(2), unlike both The supreme court began its analysis by determining
FRE 801(d)(1)(A) and IRE 801(d)(1)(A)(1), but in conformity whether the playing of the videotape for the jury, under the
with section 115-10.1 (available at Appendix I), also gives circumstances in this case, was error. The court first acknowl-
substantive weight, as “not hearsay,” to a prior inconsistent edged that the statute it was construing—section 115-10.1 of
statement—without an oath requirement—of a witness where the Code of Criminal Procedure (725 ILCS 5/115-10.1—avail-
that prior inconsistent statement narrates, describes, or explains able at Appendix I), the statute upon which IRE 801(d)(1)(A)
events or conditions about which the witness had personal (2) is based—”appears to be susceptible to two reasonable
knowledge, when: interpretations and therefore ambiguous.” Simpson, at ¶31.
(a) the prior statement is proved to have been But the court rejected the State’s interpretation that the
written or signed by the witness, or “event” in question was the defendant’s verbal admission to
(b) the witness acknowledges at the relevant the witness, reasoning that the statute has a settled meaning
proceeding or another proceeding or deposition because the appellate court had interpreted it numerous times
having made the prior statement, or and had unfailingly “concluded that the prior inconsistent state-
(c) the witness’s prior statement is proved to have ment is not admissible unless the witness actually perceived
been accurately electronically recorded. the events that are the subject of the statement or admission.”
Id. at ¶ 32. The court therefore held that the witness’s “out-
of-court videotaped statement was not given the imprimatur contained defendant’s statements about the offense as well as
of admissibility by section 115-10.1.” In sum, the supreme statements of others discussing defendant’s statements).
court held that “in order for a prior inconsistent statement to be On the other hand, appellate court decisions consistently
admissible under section 115-10.1 of the Code [and by exten- hold that previous inconsistent-under-oath statements of a
sion, under IRE 801(d)(1)(A)(2)] the witness must have actually witness that are based not on the witness’s personal knowledge
perceived the events that are the subject of the statement, not but on what the defendant told the witness are substantively
merely the statement of those events made by the defendant.” admissible. For examples of such cases that allowed substantive
Id. at ¶ 41. In affirming the appellate court’s reversal of the admissibility of prior inconsistent grand jury testimony—where
defendant’s conviction, the court also held that both prongs of the prior inconsistent statements made under oath were based
the Strickland standard for determining ineffective assistance of on what the witness was told by the defendant rather than on
counsel had been satisfied. what the witness personally perceived—see People v. Wesley,
2019 IL App (1st) 170442 (holding that 725 ILCS 5/115.10.1(c)
Distinction between Prior Inconsistent Statements under Oath
and Those Not under Oath (1) (upon which IRE 801(d)(1)(A)(1) is based) does not require
Given the supreme court’s decision in Simpson, the mean- personal knowledge of the offense, so the admission of the
ing of the previously ambiguous phrase, “an event or condition witnesses’ grand jury testimony about the defendant’s telling
of which the declarant had personal knowledge,” is clear. To them that he killed the victim, which was inconsistent with
be admissible substantively under IRE 801(d)(1)(A)(2), a prior their trial testimony, was proper); People v. Cook, 2018 IL App
inconsistent statement of the witness that was not made under (1st) 142134, ¶ 49 (“there is no personal knowledge require-
oath must narrate, describe or explain events or conditions ment for grand jury testimony under section 115-10.1(c)(1)”);
about which the witness had “personal knowledge,” not a People v. Donegan, 2012 IL App (1st) 102325, ¶ 37 (same
statement narrating what was told to the witness about an event quote as in Cook); People v. Wilson, 2012 IL App (1st) 101038
by another—even if the defendant provided the information to (witness’s entire prior inconsistent statement made under
the witness. oath to the grand jury was substantively admissible although
Cases that illustrate situations where that threshold require- it was based in part on what the defendant told the witness;
ment was not met include People v. Morgason, 311 Ill. App. 3d however, portions of audiotape and handwritten statements of
1005 (2000) (though all other requirements of the statute upon the witness that narrated what the defendant told the witness
which the rule is based were met, the witness’s recorded state- were inadmissible, while portions that narrated what the wit-
ment did not narrate events within her personal knowledge, ness personally perceived were admissible); People v. Harvey,
but what was told to her by the defendant, and was therefore 366 Ill. App. 3d 910, 921-24 (2006) (same rulings concerning
improperly admitted); People v. McCarter, 385 Ill. App. 3d witnesses’ grand jury testimony and their written statements).
919 (2008) (in a handwritten statement and in a videotaped But note that prior-inconsistent-under-oath testimony is
statement, some of what the witness stated was told to her and subject to the double hearsay rule. For an example of a case
thus not admissible substantively under the statute (and, by that holds it was error to admit evidence of a witness’s pri-
extension, the codified rule), and some of what she stated was or-inconsistent-under-oath testimony about statements told to
personally seen by her and thus was substantively admissible); her by another about what the defendant had said concerning
People v. Lofton, 2015 IL App (2d) 130135 (holding that it was the offense, see People v. Lofton, 2015 IL App (2d) 130135,
error to admit witness’s prior inconsistent written statement that ¶¶ 31-32 (holding that prior grand jury testimony, which was
contained overheard statements of defendant about the offense, inconsistent with the witness’s trial testimony, but that related
and another witness’s prior inconsistent oral statements that statements told to the witness about what defendant had told
that third person, was not admissible under IRE 801(d)(1)(A)(1)
or (2), as violative of the rule barring double hearsay or the rule or a recorded statement that differs from the witness’s trial
against hearsay within hearsay). testimony and that may be used to impeach the witness and to
IRE 801(d)(1)(A)(2)(a) Issues admit the impeaching statement substantively. The same is true
In People v. Melecio, 2017 IL App (1st) 141434, because for a witness who, under IRE 801(d)(1)(A)(2)(b), has previously
a witness had claimed a loss of memory concerning both the “at a trial, hearing, or other proceeding, or in a deposition”
offense and having provided a written statement about it, the acknowledged having made an inconsistent statement. In that
defendant contended that the State failed to prove that the situation, the impeaching party will have a transcript of the
pretrial statement had been “written or signed” by the declar- witness’s acknowledgment of the prior inconsistent statement.
ant/witness as required by section 115-10.1 of the Code of But what about the situation where a witness, who has not pre-
Criminal Procedure of 1963 (725 ILCS 5/115-10.1(c)(2)(A), see viously acknowledged having made an inconsistent statement
Appendix I), which is substantially identical to IRE 801(d)(1) (whether at trial or pretrial), is sought to be impeached by the
(A)(2)(a). Melecio, at ¶ 88. Pointing out that the statute (and, party calling the witness and the impeaching party wishes to
by implication, the rule) allows the State to prove the witness’s have the prior inconsistent statement admitted substantively
signing the statement by means other than the witness’s own under IRE 801(d)(1)(A)(2)(b)?
acknowledgment, the appellate court rejected the defendant’s In People v. Brothers, 2015 IL App (4th) 130644, the appel-
contention and held that the State had “more than met its burden late court, through Justice Robert Steigmann, who has written
of proof on this point.” Id. at ¶ 89. The court also rejected the extensively about the statutes that give rise to these 801(d)(1)(A)
defendant’s contention that, because of the witness’s claimed rules, provides the answer. The appellate court does so without
lack of memory about the events surrounding the offense, the referencing the codified rule, referring instead to the statute
State failed to satisfy the personal knowledge requirement of (725 ILCS 5/115-10.1(c)(2)(B)), which was applied at trial and
the statute (and the rule). The court reasoned that the statement upon which IRE 801(d)(1)(A)(2)(b) is based.
adequately demonstrated the witness’s personal knowledge of In Brothers, the appellate court recommends that, where it
the events described therein. Id. at ¶90. is known that a witness will testify contrary to prior statements,
Next, pointing out that “consistency is measured against a an “acknowledgment hearing” be held outside the presence of
witness’s trial testimony, not against other admitted statements” the jury before the witness takes the stand. At that hearing, the
(id. at ¶ 92), the appellate court also rejected the defendant’s witness may be questioned about her present testimony and
contention that the witness’s grand jury testimony should not be confronted with her prior statements, and then she may be
have been admitted based on the fact that the admission of asked whether she made the prior statements. If the witness
prior consistent statements is not allowed and the grand jury acknowledges having made the prior statements, questioning
testimony was consistent with her pretrial statement. Finally, proceeds in the presence of the jury, where similar questioning
reasoning that he had adequate opportunity to cross-exam- may occur. If the witness then refuses to acknowledge having
ine the witness, the court rejected the defendant’s argument made the prior statement before the jury, the questioner will be
concerning the loss of his right to confront the witness who able to use the record of the witness’s acknowledgment from
claimed memory loss. the hearing just concluded. The court further recommends that,
where testimony commences before the jury and it is unknown
Appellate Court Advice for Admission of “Acknowledged”
Inconsistent Statements under IRE 801(d)(1)(A)(2)(b) whether the witness will testify contrary to prior statements, an
The need for a written statement under IRE 801(d)(1)(A) “acknowledgment hearing” be held outside the presence of the
(2)(a) or for a recording under IRE 801(d)(1)(A)(2)(c) results jury as soon as the witness deviates from her prior statement.
in obvious application of those two rules. Where those rules That hearing should be conducted in the same manner as the
are invoked, the impeaching party will have either a written hearing held before the witness’s testimony, with the same
effect. Brothers, at ¶¶ 67-80. The appellate court emphasizes who called the witness and the prior inconsistent statement is
that, at the “acknowledgment hearing,” the witness should be substantively admissible under a rule such as IRE 801(d)(1)(A)
questioned about each inconsistent statement that the party and its subdivisions.
seeks to have acknowledged. Brothers, at ¶ 74. And it points
Distinguishing Mere Impeachment and Admission of Evidence for
out that “the acknowledged statement is still not admissible Its Substantive Weight
until the witness testifies inconsistently with it in the presence People v. Lewis, 2017 IL App (4th) 150124, provides guid-
of the jury once the trial resumes.” Brothers, at ¶ 77 (emphasis ance on the distinction between impeaching a witness called
in original). by an opposing party and seeking the substantive admission
Later, in People v. Guerrero, 2021 IL App (2d) 190364, of a prior inconsistent statement of a witness called by the
the appellate court relied heavily on Brothers in reversing proffering party (usually the State, in calling a witness who is
and remanding the defendant’s jury conviction for aggravated frequently referred to as a “turncoat witness”). Without referring
battery. The court’s reversal was based on the State’s substantive to IRE 801(d)(1)(A), the appellate court pointed out in Lewis
admission of statements made to a detective about what a wit- that section 115-10-1 of the Code of Criminal Procedure, upon
ness had told him about the offense, where the witness denied which the codified Illinois rule is based, plays no role where
making the statements and testified that he had not seen the mere impeachment is involved (without the application of
offense and that he had no recollection about it. Noting that IRE 607 principles), and where there is no attempt to have the
725 ILCS 5/115-10.1(c)(2)(B) (which, again, is the basis of IRE inconsistent statement admitted substantively. Like Brothers,
801(d)(1)(A)(2)(b)), allows the substantive admission of a prior this decision is also noteworthy for Justice Steigmann’s observa-
inconsistent statement where the witness acknowledges having tions concerning foundational errors in questioning the witness
made the prior statement, the court concluded that, because to be impeached, observations about errors in the testimony
the witness had not acknowledged having made the statements of the police officer witness who provided the impeaching
to the detective, the substantive admission of his statements evidence, and advice on how to do it correctly.
was improper. As an aside, the alleged victim of the offense
Effect of IRE 801(d)(1) Rules: Impeachment and Substantive
had given police a video recording concerning the offense, so Weight
his similar “turncoat” evidence during trial was unaffected by When their provisions are satisfied in criminal cases, the
section 115-10.1(c)(2)(B), and was properly admitted under effect of IRE 801(d)(1)(A)(1) and (2) is to provide, not only
section 115-10.1 (c)(2)(C) of the Code of Criminal Procedure of impeachment through prior inconsistent statements, but also
1963, which is the basis for IRE 801(d)(1)(A)(2)(c). substantive weight for such statements—in contrast to the
Note that the discussion above concerns the substantive earlier (pre-statute) holding in People v. Collins, 49 Ill. 2d 179,
admission of a prior inconsistent statement under IRE 801(d)(1) 194-95 (1971), where the supreme court refused to adopt an
(A)(2)(b). But prior inconsistent statements—even those that are early draft of what was then FRE 801(d)(1) to extend substan-
not written or recorded or acknowledged by a witness—may be tive effect to prior inconsistent statements (as well as those
used solely for impeachment purposes, with due regard for the not under oath), while continuing to permit their use only for
specific prohibition in IRE 607 that “the credibility of a witness impeachment purposes—consistent with their treatment under
may be attacked by the party calling the witness by means of a common law.
prior inconsistent statement only upon a showing of affirmative In plain terms, application of each rule means that the trier
damage.” Note, however, that this IRE 607 restriction does of fact is permitted to go beyond solely believing or disbeliev-
not apply where the credibility of the witness is attacked by ing the witness’s testimony at the relevant proceeding (which
the party opposing the party who called the witness. And it is the consequence of evidence that has only impeachment
does not apply where the witness is impeached by the party value), because the trier of fact may give substantive weight
even to the witness’s prior inconsistent statement. It thus per- In People v. Vannote, 2012 IL App (4th) 100798, a split
mits a prosecutor, in some cases where such evidence has been decision, the appellate court construed and applied section
admitted, to avoid a directed verdict; and, in all cases where 115-10.1 of the Code of Criminal Procedure of 1963 (see
such evidence has been admitted, to argue that evidence Appendix I), the statutory basis for IRE 801(d)(1)(A). In that
substantively (rather than solely for impeachment purposes) in case, the victim of the defendant’s alleged offense of aggravated
encouraging the trier of fact to base its decision upon the prior criminal sexual abuse was 9 years old at the time of the offense,
inconsistent statement. and 11 years of age at the time of trial. He testified that he
IRE 607’s Limitation on Impeaching Party’s Own Witness remembered none of the events of the day in question and
When prior inconsistent statements are not admitted as did not remember a police interview or what he said during
substantive evidence, they still have impeachment value (i.e., it. The trial court admitted into evidence both the police-vid-
for the purpose of attacking the credibility of the witness). But eotaped interview of the victim, which was played for the jury,
when an Illinois party impeaches its own witness (in either a and its transcript. On appeal, the appellate court affirmed the
civil or a criminal case), that party must be aware of and abide conviction, holding that the recorded interview was properly
by the provisions of IRE 607, which prohibits use of a prior admitted under section 115-10.1. The court relied on cases that
inconsistent statement to impeach one’s own witness, except held that prior statements do not need to directly contradict
where there is “a showing of affirmative damage”—unless the testimony given at trial to be considered inconsistent, and that
prior inconsistent statement is substantively admissible. the term “inconsistent” includes evasive answers, silence, or
That limitation does not apply under the federal rule, but changes in position. The court concluded that the victim’s
in Illinois a party’s mere disappointment in the testimony of previous statement, recorded the day after the incident, was
the witness is an insufficient basis for allowing impeachment. inconsistent with his trial testimony and sufficient to constitute
In Illinois, the failure of one’s own witness to support a party’s a prior inconsistent recorded statement. The court also held
case is an inadequate basis for impeaching that witness; the that there was no confrontation clause violation because the
witness’s testimony must give positive aid to the opposing victim was personally present during trial and was subject to
party’s case (again, unless the prior inconsistent statement is cross-examination.
substantively admissible). For a discussion of these principles, The appellate court decision in People v. Kennebrew, 2014
see People v. McCarter, 385 Ill. App. 3d 919 (2008), as well as IL App (2d) 121169, provides a thorough analysis concerning
the Author’s Commentary on Ill. R. Evid. 607. the admissibility of prior out-of-court “testimonial” statements
Determining that Statements Are “Inconsistent” under section 115-10.1 of the Code of Criminal Procedure
Cases relevant to whether prior statements of witnesses are (available at Appendix I), when a witness testifies to a lack of
“inconsistent” include: People v. Flores, 128 Ill. 2d 66, 87-88 memory concerning relevant facts. At issue in Kennebrew was
(1989) (“determination of whether a witness’ prior testimony the propriety of the admission of out-of-court statements of the
is inconsistent with his present testimony is left to the sound then-nine-year-old victim of sexual offenses: statements made
discretion of the trial court”); People v. Sykes, 2012 IL App to her stepmother and her cousin, and a videotaped statement
(4th) 100769 (trial court has discretion in determining whether made to a woman at a children’s center. Because the nine-
a witness has acknowledged making a prior inconsistent year-old testified that she could not recall statements that she
statement, and is not affected by witness’s attempts to disavow had made about offense-related incidents that had occurred
them); People v. Dominguez, 382 Ill. App. 3d 757, 770 (2008) when she was seven years of age, the focus in the case was
(admissibility of prior inconsistent statement is not affected by on whether the out-of-court-statements were inconsistent with
witness’s efforts to explain it; resolution of inconsistencies is for the victim’s testimony (to satisfy subdivision (a) of the statute),
the trier of fact). whether the victim was subject to cross-examination concern-
ing the statements (to satisfy subdivision (b) of the statute), and that the three-year-old was unavailable to testify because of her
whether admission of the statements violated the confrontation youth and her fear, noting that she “could barely answer the
clause pursuant to the requirements of Crawford v. Washington, trial court’s preliminary questions, and then completely froze
541 U.S. 36 (2004). when the State attempted to begin its direct examination of her.”
Relying upon Illinois precedent and decisions of the United Brandon P., at ¶ 47. The court thus held that the child’s out-of-
States Supreme Court, the appellate court held that “[a] witness’s court statements should not have been admitted, though it held
inability at trial to remember or recall events does not automat- that the admission of those statements was harmless beyond a
ically render the witness unavailable under the confrontation reasonable doubt. It should be noted, however, that Brandon
clause,” (Kennebrew, at ¶35), and that “[d]efendant’s decision P. is a case involving the use of out-of-court statements under
not to cross-examine [the nine-year-old] did not mean that he section 115-10 of the Code of Criminal Procedure (725 ILCS
did not have the opportunity to cross-examine her, which is 5/115-10; see Appendix U), and not under section 115-10.1
what the confrontation clause guarantees.” (id. at ¶40 (empha- (available at Appendix I), and thus is not relevant to the hearsay
sis in original), see also ¶41). Kennebrew is mandatory reading exclusion provided by IRE 801(d)(1). Nevertheless, the case
for anyone addressing issues related to the admission of out- establishes that a witness may be deemed to be unavailable
of-court statements of a forgetful or uncooperative witness, not in similar situations in an IRE 801(d)(1) setting, and thus not
only because of its thorough analysis of the issues, but because “subject to cross-examination concerning the statement,” as
of its distinguishing the decision in People v. Learn, 396 Ill. required by both section 115-10.1 and IRE 801(d)(1).
App. 3d 891 (2009), a decision that the specially concurring
2014 Amendment of FRE 801(d)(1)(B) and Its Non-Adoption in
justice in Kennebrew contended was wrongly decided and Illinois
should be rejected. Note that FRE 801(d)(1)(B), was amended, effective
People v. Graves, 2021 IL App (5th) 200104, ¶¶33-46, offers December 1, 2014. That federal rule now has two subdivisions:
a comprehensive discussion concerning Learn, which involved (1) FRE 801(d)(1)(B)(i) is identical to what was
the admission of out-of-court statements made to her father and formerly FRE 801(d)(1)(B), as amended only for
two police officers by a minor who was present to testify, but stylistic purposes effective December 1, 2011. That
offered no evidence concerning the defendant’s sex offense. subdivision, as before, makes a prior consistent
Learn, with one justice dissenting, reversed the defendant’s statement of a witness substantively admissible
conviction based on its holding that the testimony of the father as not hearsay when offered (in the words of the
and the police officers was improperly admitted. Graves, a December 1, 2011 amended, and now current,
prosecution for sex offenses on a minor, also had testimony by federal rule) “to rebut an express or implied charge
witnesses who testified about the victim’s statements concern- that the declarant recently fabricated it or acted
ing the offense and also resulted in the victim’s testimony, but from a recent improper motive in so testifying.”
with no evidence from her concerning the offense. Concluding (2) FRE 801(d)(1)(B)(ii) is the subdivision that was
that Learn was an outlier and providing a compilation of the added effective December 1, 2014. It broadens
numerous appellate court decisions that have ruled contrary FRE 801(d)(1)(B) by allowing substantive admissi-
to that case, the court ruled that the Confrontation Clause is bility as not hearsay of prior consistent statements
satisfied by the mere presence of the minor victim as a witness. offered “to rehabilitate the declarant’s credibility
In In re Brandon P., 2014 IL 116653, the supreme court as a witness when attacked on another ground”
held that a three-year-old child was unavailable as a witness (i.e., other than on the basis of recent fabrication
in a juvenile court proceeding alleging a sexual offense by the or recent improper influence or motive).
14-year-old respondent. In that case, the supreme court held
What was FRE 801(d)(1)(B) and now is FRE 801(d)(1)(B)(i) Illinois has not adopted nor have Illinois cases addressed
has not been adopted in Illinois. That is so because, as stated recently added FRE 801(d)(1)(B)(ii). Based on decisions of the
supra in the Author’s Commentary on Ill. R. Evid 801(d), under supreme and appellate courts that address what is now FRE
the heading FRE 801(d)(1)(b) Not Adopted, consistent with 801(d)(1)(B)(i), as well as Illinois’ refusal to codify that rule as
the common law, Illinois allows such statements to be admitted, a hearsay exception, it is unlikely that Illinois will adopt that
but only for rebuttal or rehabilitative purposes, not substantively federal rule, for it grants a much broader range of substantive
(i.e., not as “not hearsay” or as a hearsay exception). See People admissibility to prior consistent statements.
v. Harris, 123 Ill. 2d 113 (1988) (to rebut a charge of recent In sum, regarding prior consistent statements, the com-
fabrication, consistent statement made prior to the time when mon-law rule continues to apply in Illinois: a prior consistent
the witness had a motive to fabricate is admissible); People v. statement is admissible for rebuttal or rehabilitative purposes if
Walker, 211 Ill. 2d 317, 344 (2004) (prior consistent statement it was made before the existence of an alleged motive to testify
is not admissible substantively, but only for the limited purpose falsely or prior to an alleged fabrication; but such a statement is
of rebutting inferences that the witness is motivated to testify not substantively admissible and thus does not qualify as “not
falsely or that the testimony is of recent fabrication); People hearsay” (as the federal rule provides) or as an exception to the
v. Johnson, 2012 IL App (1st) 091730, ¶¶ 57-67 (holding hearsay rule. Again, the adoption of IRE 613(c) makes those
that, because there was no allegation of recent fabrication or principles clear.
recent motive to lie, introduction of prior consistent statements
Proper Use of Prior Inconsistent Statements Not Admitted
was improper); People v. Denson, 2013 IL App (2d) 110652, Substantively; Limiting Instructions
¶¶25-29, reversed on other grounds in People v. Denson, 2014 It should be emphasized that “the mere introduction of
IL 116231 (defendant’s cross-examination concerning witness’s contradictory evidence, without more, does not constitute
testimony about offender’s height in deposition taken six years an implied charge of fabrication or motive to lie.” People v.
after the murder was more accurate than her trial testimony at Randolph, 2014 IL App (1st) 113624, ¶ 17, quoting People v.
trial on that subject and allowed State to properly elicit from McWhite, 399 Ill. App. 3d 637, 643 (2010). In Randolph, most
witness her statement to police immediately after the offense of the impeachment of a police officer consisted of impeach-
about offender’s height, “to address the improper insinuations ment by omission, which the appellate court held did not jus-
raised by the defendant”). tify the admission of evidence concerning the officer’s report.
Citing People v. Lambert, 288 Ill. App. 3d 450, 461 (1997), the
Adoption of IRE 613(c) and Inaction Regarding FRE 801(d)(1)
(B)(ii) appellate court stated that “[e]ven in cases where prior consis-
Note that IRE 613(c), effective on January 1, 2015, was tent statements are properly admitted, such evidence must be
adopted by the supreme court in order to codify the principles accompanied by a limiting instruction informing the jury that
that are summarized above and that apply in Illinois—as they the evidence should not be considered for its truth, but only to
are related to FRE 801(d)(1)(B) before its amendment (i.e., as rebut a charge of recent fabrication.” Randolph, at ¶ 20. The
related to what is now FRE 801(d)(1)(B)(i)). IRE 613(c)’s specific court also pointed out that “it is improper for the State to refer
provisions and its placement as a subdivision of IRE 613, which to the prior consistent statements as substantive evidence in
addresses prior statements of witnesses, demonstrate that prior closing arguments.” Id.
consistent statements—even those admitted to rebut an allega- IRE 801(d)(1)(B): Prior Identification Evidence
tion of recent fabrication or improper influence or motive—are IRE 801(d)(1)(B), which addresses substantive admissibility
not substantively admissible as either a hearsay exclusion or an of evidence of prior identification, though bearing a different
exception to the hearsay rule. number designation from the federal rule, is identical to FRE
801(d)(1)(C) before the latter’s amendment solely for stylistic
purposes effective December 1, 2011. The Illinois rule does not identification. Consistent with its holding, the Lewis court
represent a change in Illinois law because section 115-12 of overruled the contrary holdings in People v. Bradley, 336 Ill.
the Code of Criminal Procedure of 1963 (725 ILCS 5/115-12), App. 3d 62 (2002), and People v. Stackhouse, 354 Ill. App.
which is provided in the appendix to this guide at Appendix 3d (2004), both of which required a declarant to testify on his
J, predates the rule and also gives substantive weight to such or her out-of-court identification before another witness may
identification evidence. The Illinois rule, which applies only in testify about that identification.
criminal cases, is substantively identical to the statute. In the post-codification case of People v. Whitfield, 2014
In the pre-codification case of People v. Holveck, 141 Ill. IL App (1st) 123135, the appellate court applied Lewis in
2d 84 (1990), in interpreting section 115-12 of the Code of holding that the out-of-court declarant’s testimony that he
Criminal Procedure, the supreme court held that an out-of- never identified the defendant as the offender did not prevent
court statement of identification is admissible substantively police officers from testifying that the declarant had made an
where the declarant testifies at trial and is subject to cross-ex- identification. Whitfield also held that testimony by a police
amination, even if the declarant fails to identify the defendant officer that three people pointed to the defendant before his
at trial. The court noted that in its earlier decision in People arrest did not constitute hearsay, and the testimony was prop-
v. Rogers, 81 Ill.2d 571 (1980), it had held that, in order to erly admitted for the purpose of showing the conduct of police
be admissible, a prior identification had to corroborate an and the steps in their investigation.
in-court identification of the defendant, but that case predated It should be noted that in People v. Tisdel, 201 Ill. 2d 210
the statute’s enactment. See also People v. Bowen, 298 Ill. App. (2002), the supreme court held that evidence of an out-of-court
3d 829 (1998) (where the out-of-court declarant, who had non-identification of a person is substantively admissible, thus
previously identified defendant, testified at trial that defendant reversing the court’s previous, contrary decision in People v.
was not the offender, holding that “section 115-12 on its face Hayes, 139 Ill. 2d 89 (1990).
permits the substantive admission of prior identification state- Also, note that in People v. Temple, 2014 IL App (1st)
ments without regard to whether the witness makes an in-court 111653, a drive-by shooting case in which one person was
identification”). murdered and another shot multiple times, the appellate court
Also, in the pre-codification case of People v. Lewis, 223 Ill. rejected the defendant’s hearsay objections in approving the
2d 393 (2006), again in interpreting section 115-12 (which, it admission of pre-arrest statements of eye witnesses and police
must be stressed, is substantively identical to IRE 801(d)(1)(B)), officers recounting the name of the offender, physical and
the supreme court held that the statute requires only that the clothing descriptions of the offender, and descriptions of the car
declarant/witness testify and be subject to cross-examination involved in the offense and its route of travel. In doing so, the
on the identification statement. The court held that the witness, appellate court cited the supreme court decisions in People v.
who on direct examination identified the defendant in-court Shum, 117 Ill. 2d 317, 342 (1987) and People v. Tisdel, 201 Ill.
but offered no direct testimony about her out-of-court identi- 2d 210, 217 (2002), and the appellate court decision in People
fication of him and was not cross-examined on that subject v. Newbill, 374 Ill. App. 3d 847 (2007), to justify its holding
by the defendant, was available for and subject to cross-exam- that both section 115-12 and IRE 801(d)(1)(B) allow, not only
ination. The court further held that the statute does not require evidence of identification, but also testimony concerning the
that the declarant “testify to the out-of-court statement before type of descriptive information provided by the witnesses to the
a third party may offer testimony on that matter.” Thus, despite offense and police officers in this case.
the failure of the declarant/witness to give testimony about the People v. Thompson, 2016 IL App (1st) 133648, demon-
out-of-court identification of the defendant, it was proper for strates the distinction between a witness’s testimony concerning
a detective to provide testimony concerning her out-of-court his prior statement of identification, and a witness’s testifying
about a non-testifying witness’s statement that another person the witness’s identification and because there is no limit on
told him of the identity of the offender. In Thompson, the the number of identification witnesses who may testify, the
appellate court approved, as not hearsay under section 115-12 appellate court held that the testimony of the other couple was
and IRE 801(d)(1)(B), the testimony of a witness to a shooting properly barred because it was repetitive and cumulative.
that he had identified the names of the offenders to his father.
Summary of Differences Between Federal and Illinois Versions of
But the court held that the testimony of a police detective that Rule 801(d)(1)
the father, who had not testified at trial, told him that his son The following is provided for the purpose of emphasizing, in
had named the defendants as the shooters was inadmissible summary form, what is stated above concerning the differences
hearsay, which in this case the court determined constituted between the federal and Illinois versions of Rule 801(d)(1):
harmless error. (1) although FRE 801(d)(1)(A) applies both to
In People v. Zimmerman, 2018 IL App (4th) 170695, an civil and criminal cases, IRE 801(d)(1)(A) and its
interlocutory appeal by the State of trial court rulings, the subdivisions apply only to criminal cases and not
appellate court held that the trial court had properly limited the to civil cases;
introduction of identification testimony under both IRE 801(d) (2) although FRE 801(d)(1)(B)(i) gives substantive
(1)(B) and section 115-12. In that case, the trial court ruled that weight to a prior consistent statement when used to
a witness’s testimony that she saw the defendant—the former rebut an allegation of recent fabrication or recent
husband of the victim—in the parking lot of the murdered improper influence or motive, Illinois does not
victim’s office, shortly after the murder was committed in the have a rule that gives substantive weight to such
victim’s office, was admissible. In the hearing on the motion to statements (i.e., that makes them “not hearsay”
suppress statements, the witness testified she recognized the or subject to an exception to the hearsay rule),
defendant as the person she had seen many months after her but allows such statements only for the purpose
parking-lot observation, when she saw his photo in a newspa- of rehabilitating a witness (see IRE 613(c), which
per. The witness had informed her husband of both her original makes that manifestly clear); also, Illinois has no
observation and her later recognition of the defendant. She later counterpart to FRE 801(d)(1)(B)(ii);
told another couple of her observations. In addition to allowing (3) although FRE 801(d)(1)(C) gives substantive
the witness to make an in-court identification of the defendant, weight to identification testimony in both civil
the trial court ruled that her husband could testify about the and criminal cases, IRE 801(d)(1)(B) provides sub-
witness’s identification of the defendant based on the news- stantive weight to such testimony only in criminal
paper photo, but the other couple could not testify regarding cases.
the witness’s later conversation. Rejecting the State’s arguments For the Committee’s views on these rules, see section (5)
on appeal that the statements made to the other couple were under the “Modernization” discussion in the Committee’s
wrongfully excluded because they went to the credibility of general commentary on page 3 of this guide.
Author’s Commentary on Ill. R. Evid. 801(d)(2)
IRE 801(d)(2) is identical to FRE 801(d)(2) before its amend- (E), and (F) statements to be based on the relationships specified
ment solely for stylistic purposes effective December 1, 2011, independently of the contents of the statement.
except for (1) the addition of (F) to codify Illinois law, and (2) Note that the rule had been labeled “Admission by Party-
the omission of the last sentence of both the pre-amended and Opponent.” Effective October 15, 2015, however, the Illinois
the current federal rule, because it is inconsistent with Illinois Supreme Court altered the title to read “Statement by Party-
law, which requires the admission of the subdivision (C), (D), Opponent.” That title more accurately describes the rule that
provides substantive admissibility to party-opponent “state-
ments,” which are not necessarily “admissions” to anything, the statements qualified as statements in furtherance of the con-
and may not have been against interest when they were made. spiracy and thus were substantively admissible, while others
Note, too, that the title given to revised FRE 801(d)(2), effective were mere narrative and thus were not substantively admissible
December 1, 2011, also refers to “Statements.” As opposed to because they were not made in furtherance of the conspiracy.
the federal rule’s “Opposing Party’s Statement,” Illinois retains In People v. Denson, 2014 IL 11623, although disagreeing with
the designation of “Party-Opponent,” which has gained com- the appellate court’s forfeiture analysis, the supreme court held
mon usage. that “the appellate court’s analysis of these statements is not
Effective October 1, 2019, the current title of IRE 801(d)(2) only correct but also factually and legally complete.” People
resulted in the supreme court’s amendment of Supreme Court v. Denson, 2014 IL 11623, ¶ 28. The supreme court therefore
Rule 212(a)(2), which addresses the various uses of discovery affirmed both the appellate court’s reasoning and conclusions
depositions. That subsection, related to the substantive admis- on these issues.
sion of a deposition of a party-opponent, now refers to “a In People v. Caraga, 2018 IL App (1st) 170123, the appellate
former statement, pursuant to Illinois Rule of Evidence 801(d) court rejected the defendant’s contention that co-conspirator
(2),” thus deleting the rule’s prior reference to “an admission” statements made outside of his presence or without his knowl-
and making specific reference to this evidence rule and all its edge should not have been admitted against him. Pointing out
subdivisions. that a person’s involvement in a conspiracy “may be inferred
from all the surrounding facts and circumstances, including
“Not Hearsay” Nature of Rule 801(d)(2) Statement
his own acts and declarations” (id. at ¶ 41), the court held
As is the case under IRE 801(d)(1), an out-of-court statement
that, where a person is determined to be a co-conspirator, his
that satisfies IRE 801(d)(2) requirements is admitted substan-
absence from the discussion of other co-conspirators in further-
tively as “not hearsay” or as a hearsay exclusion, not as an
ance of the conspiracy does not affect admissibility.
exception to the hearsay rule. Formerly, such statements were
In People v. Jaimes, 2019 IL App (1st) 142736, ¶¶59-72, the
admissible substantively as exceptions to the hearsay rule. See
appellate court held that statements made by members of the
In re Estate of Rennick, 181 Ill. 2d 395, 406 (1998).
defendant’s gang, which related to the defendant’s killing of a
As a matter of fact, in People v. Denson, 2013 IL App (2d)
rival gang member, were made as part of a conspiracy to kill a
110652, reversed on other grounds in People v. Denson, 2014
rival gang member and in furtherance of the conspiracy, even
IL 116231, noting that the defendant cited to cases that contain
though the statements were made after the killing. The appel-
holdings that “define coconspirator statements as an exception
late court reasoned that the statements about the defendant’s
to the traditional definition of hearsay,” the appellate court
involvement in the killing was part of a broader conspiracy
pointed out that such holdings have “been radically modified
stemming from the ongoing feud between the rival gangs in
by the Illinois Rules of Evidence.” The court explained: “Rather
which members of the defendant’s gang desired to continue
than continue to refer to such statements as an exception to the
harming members of the victim’s gang. Because the conspiracy
hearsay rule, and thus substantively admissible, the Rules have
was still ongoing, statements by [three members of the gang]
defined such statements as not hearsay.” People v. Denson,
were intended to keep fellow gang members informed of the
2013 IL App (2d) 1106562, ¶ 5, reversed on other grounds in
continuance of the conspiracy and, thus, in furtherance of the
People v. Denson, 2014 IL 116231.
conspiracy.” Jaimes, at ¶62.
Co-conspirator’s Statements under Rule 801(d)(2)(E)
Some of the issues addressed in Denson concerned whether Relevant Decisions on Statements by Party-Opponent
certain statements made by co-conspirators to non-conspira- In a criminal case, the victim of an offense is not a “party.”
tors were substantively admissible under the common law and See People v. Deskin, 60 Ill. App. 3d 476 (1978) (“In a criminal
under IRE 801(d)(2)(E). The appellate court found that some of case, the party opponent to the defendant is the People of
the State of Illinois. The victim, though also a complainant, is what the mother had self-reported to them regarding her mental
merely another witness.”). health. Noting that statements of a party-opponent “constitute
In People v. Aguilar, 265 Ill. App. 3d 105 (1994), a decision substantive evidence subject to consideration by the trier of
issued before the codification of Illinois’ evidence rulers and fact,” the appellate court held “that the statements testified to
before the amendment of “admission” to “statement,” the trial by the caseworkers were properly admitted as statements by a
court suppressed statements made by the defendant on the party-opponent pursuant to Ill. R. Evid. 801(d)(2)(A) and were
grounds that the statements were not “admissions” but were not inadmissible hearsay.” Chance H., at ¶¶49-50.
exculpatory. In reversing the trial court’s ruling on the State’s In Perez v. St. Alexius Medical Center, 2020 IL App (1st)
interlocutory appeal, the appellate court ruled as follows: 181887, a wrongful death and survival action based on medi-
“The hearsay rule is not a basis for objection cal malpractice, the appellate court held that the trial court had
when the defendant’s own statements are offered improperly barred the plaintiff from questioning the defendant
against the defendant; in such a case the defen- based on the defendant’s expert witness’s disclosure in his
dant’s statements are termed “admissions.” Any interrogatory pursuant to Ill. S. Ct. Rule 213(f)(3), a disclosure
statement by an accused person, unless excluded that was signed by the defendant’s attorney and which was
by the privilege against self-incrimination or other inconsistent with the defendant’s defense. In addition to the
exclusionary rules, may be used against him as an appellate court’s reliance on Rule 213(f)(3) and other supreme
admission. Illinois courts have relied on Federal court rules, the court relied on IRE 801(d)(2)(A), pointing out
Rule of Evidence 801(d)(2) in finding that a defen- that the rule “does not distinguish between ‘the party, the par-
dant’s admissions are not excludable as hearsay.” ty’s current employee, or the party’s retained expert.’” Perez,
Aguilar, 265 Ill. App. 3d at 110 (citations omitted). at ¶ 68. The dissenting justice did not object to the majority’s
In People v. Schlott, 2015 IL App (3d) 130725, the trial court general principles on this issue; rather, she dissented based on
suppressed a portion of the defendant’s 911 call on the basis the plaintiff’s failure to make an offer of proof, as well as the
that what the defendant said during that call violated the hold- fact that the jury had heard the content of the Rule 213(f)(3)
ing in Crawford v. Washington, 541 U.S. 36 (2004), relating to disclosure at various times during the trial.
“testimonial” statements. On the State’s interlocutory appeal, In People v. Sanders, 2021 IL App (5th) 180339, a prosecu-
the appellate court pointed out that Crawford’s focus on testi- tion for first degree murder, the State was allowed to impeach
monial and nontestimonial hearsay “was at all times concerned the defendant through cross-examination, in his initial trial,
with hearsay.” Schlott, at ¶ 33 (emphasis in original). Holding during his testimony by questioning him about admissions of
that the defendant’s statements were not hearsay, the court guilt he made while being interrogated by police. This form of
held that “[a]dmissible nonhearsay does not implicate the impeachment was proper under United States Supreme Court
confrontation clause.” Id. Quoting the language of IRE 801(d) decisions, despite the trial court’s prior ruling that police had
(2)(A), the court held that “[t]he statements made by defendant obtained the incriminating statements from the defendant in
and recorded on the 911 tape are admissions, and are plainly violation of Miranda v. Arizona, 384 U.S. 436 (1966). The
considered nonhearsay under Illinois law.” Schlott, at ¶35. trial in which this occurred ended in a hung jury. During the
In In re Matter of Chance H., 2019 IL App (1st) 180053, subsequent retrial, in which the defendant did not testify, the
after an adjudicatory hearing, the trial court determined that a trial court allowed the State to admit the transcript of the defen-
number of children were neglected children due to an injurious dant’s testimony in the former trial based on the non-hearsay
environment. On appeal, the mother of the children contended “statement by party-opponent” rule provided by IRE 801(d)(2).
that the trial court erred in its admission of and reliance on the The defendant was convicted. In the appeal that followed, the
allegedly hearsay testimony of two caseworkers who testified to appellate court rejected the State’s contention that the testimony
of the defendant was justified by this evidence rule, holding ¶¶24-26 (absent evidence that defendant-attorney heard state-
that the trial court erred in allowing the State to introduce at ment by testatrix that he had drafted her will, which left a good
trial, as substantive evidence, the transcript of the defendant’s portion of her estate to him, there was no admission by silence
prior trial impeachment testimony, which had been excluded based upon his failure to respond).
as substantive evidence under Miranda. The conviction was IRE 801(d)(2)(D): Scope of Employment Approach
reversed and the case was remanded for retrial. Adoption of IRE 801(d)(2)(D) resolves the split in the Illinois
Tacit or Implied Admission Appellate Court about which approach should apply to make
A tacit or implied admission by silence by a defendant in a an agent’s statement admissible against the principal: the
criminal case is an example of an 801(d)(2)(B) statement. The traditional agency approach (which includes the requirement
elements of such an admission are: (1) the defendant heard the that the agent be given authority to speak) or the scope of
incriminating statement, (2) the defendant had an opportunity employment approach (which is consistent with the federal
to reply and remained silent, and (3) the incriminating state- rule and does not require specific authority to speak). See Pavlik
ment was such that the natural reaction of an innocent person v. Wal-Mart Stores, Inc., 323 Ill. App. 3d 1060 (2001), for a dis-
would be to deny it. People v. Soto, 342 Ill. App. 3d 1005, cussion concerning the split and its preference for the federal
1013 (2003), citing People v. Goswami, 237 Ill. App. 3d 532, rule. The adoption of the rule, which includes subdivision (D)
536 (1992), which in turn cited People v. McCain, 29 Ill. 2d without the requirement of authority to speak, makes it clear
132, 135 (1963). For an appellate court decision addressing that authorization is unnecessary. See also section (6) under
the elements of admission by silence in the context of a will the “Modernization” discussion in the Committee’s general
contest case, see DeMarzo v. Harris, 2015 IL App (1st) 141766, commentary on page 3 of this guide.
Rule 802. The Rule Against Hearsay Rule 802. Hearsay Rule
Hearsay is not admissible unless any of the following Hearsay is not admissible except as provided by these
provides otherwise: rules, by other rules prescribed by the Supreme Court,
· a federal statute; or by statute as provided in Rule 101.
· these rules; or
· other rules prescribed by the Supreme Court.
COMMENTARY
Rule 803. Exceptions to the Rule Against Hearsay— Rule 803. Hearsay Exceptions; Availability of
Regardless of Whether the Declarant Is Available as Declarant Immaterial
a Witness The following are not excluded by the hearsay rule,
The following are not excluded by the rule against even though the declarant is available as a witness:
hearsay, regardless of whether the declarant is available [IRE 803(1) is Reserved – Illinois has not adopted
as a witness: FRE 803(1) Present Sense Impression exception to the
(1) Present Sense Impression. A statement describ- hearsay rule]
ing or explaining an event or condition, made while or
immediately after the declarant perceived it.
COMMENTARY
Banks, 237 Ill. 2d 154 (2010) (approving admission of a series rule, where, in upholding the admission of a sheriff’s radio logs,
of flash messages over police radios, holding that “admission of the appellate court stated, “As an exception to the hearsay rule,
an out-of-court statement that is not offered to prove the truth it has been repeatedly held that records kept by a public officer,
of the matter asserted but rather to explain the investigatory dealing with his official activities and either required by statute
procedure followed in a case is proper”). or reasonably necessary for the performance of the duties of the
See also People v. Lacey, 93 Ill. App. 2d 430 (1968), a deci- office, are admissible to prove the matters recorded.”
sion not related to the present sense exception to the hearsay
(2) Excited Utterance. A statement relating to a (2) Excited Utterance. A statement relating to a
startling event or condition, made while the declarant startling event or condition made while the declarant
was under the stress of excitement that it caused. was under the stress of excitement caused by the event
or condition.
COMMENTARY
qualified as excited-utterance exceptions to the hearsay rule. necessary to resolve the present emergency, that his statements
Nevertheless, the court held that admission of the statements were made frantically, and that he “was not strictly referring to
violated the defendant’s sixth amendment right to confronta- past events, as his statement that he was beaten by someone
tion. The court reasoned that the victim had been taken from was necessary to describe his present condition, which further
the scene of the shooting and she had been in the hospital for provided context necessary to receive assistance.” Id. at ¶ 93.
about one and a half hour before making the first statement, The court noted that defendant had not been apprehended
and that the defendant had already been taken into custody when the statements were made, and cited People v. Sutton,
when she made the statement. The court therefore concluded 233 Ill.2d 89, 115-16 (1989), in concluding that the victim’s
that “the primary purpose in questioning [the victim] was not “statements were not made to provide information for a future
to determine if there was an ongoing emergency, since they prosecution and therefore were not testimonial and do not
already had defendant in custody for the shooting, but to estab- implicate the confrontation clause.” Feliciano, at ¶98.
lish or prove past events to identify or convict the perpetrator.” In response to defendant’s contention that the spontaneous
Perkins, at ¶ 78. The court therefore held that the statements declaration exception to the hearsay rule was inapplicable
of the victim, who died nine days later, were testimonial and because there was too much time between the startling events
therefore violated the defendant’s sixth amendment rights. Id. that caused the victim’s injuries and his one-to-two-day state-
at ¶¶ 75-78. The appellate court, however, ultimately allowed ments to police and medical personnel, the appellate court
admissibility of all three statements of the victim under the relied on People v. Gacho, 122 Ill. 2d 221, where there was
forfeiture-by-wrongdoing exception to the hearsay rule. Id. at a 6½ hour delay in naming the offender by the victim of a
¶¶81-88. shooting who was found in the trunk of a car with the dead
In People v. Gabriel Feliciano, 2020 IL App (1st) 171142, in body of another shooting victim. The appellate court equated
a jury trial for first degree murder, home invasion, and robbery, the victim’s statement in this case to that of the victim in Gacho,
the trial court admitted numerous statements of the 94-year-old reasoning that “during this extremely painful and traumatic
victim that “Gabriel did this to me” or that “Gabriel” had beaten period of time, the victim likely could not have fabricated
him up. The victim was found on his bedroom floor trapped a story regarding who put him in that situation.” Feliciano,
under a tall dresser on top of him, brutally beaten, with injuries at ¶ 107. Finally, in response to defendant’s contention that
that indicated they had occurred one or two days before. He statements of the victim were made in response to questions,
died in the hospital 41 days after his removal from his home. the appellate court cited the holding in People v. Williams,
On appeal, defendant argued that the victim’s statements “were 193 Ill. 2d 306, 352 (2000), that “the fact that a statement was
inadmissible because the startling occurrence of being found made in response to a question does not necessarily destroy
had passed by the time [the victim] made the statements.” Id. at spontaneity.” Feliciano, at ¶101.
¶85. He also contended that the statements were inadmissible For an example of a decision where the hearsay exception
“statements to [a police officer] and the medical personnel in did not apply, see People v. Denis, 2018 IL App (1st) 151892,
particular were inadmissible because they were testimonial ¶¶ 71-75 (holding that statements by the victim of sexual
statements, as they were made in response to an interrogation assaults when she was seven-years old, made to her mother
intended to collect information for a future prosecution.” Id. during an argument more than 10 years after the offenses,
In first responding to defendant’s confrontation-clause argu- were improperly admitted because the excitement of the
ment concerning the admissibility of the victim’s statements to occurrences no longer predominated and thus did not meet the
a police officer and to medical personnel, the appellate court requirements of the excited utterance exception).
discussed the victim’s numerous statements, noting that the vic-
tim was facing an ongoing emergency, that his statements were
Effect of Questioning on Spontaneity Requirement that Declarant Have Personal Knowledge of the
Matter
In People v. Williams, 193 Ill. 2d 306, 353 (2000), the
Note that “there is a caveat to the spontaneous declaration
supreme court stated: “Although a statement made in response
exception of the hearsay rule that the declarant must have had
to persistent interrogation might not be admitted under
an opportunity to observe personally the matter of which he
the spontaneous declaration exception (see, e.g., People v.
speaks.” People v. Hill, 60 Ill. App. 2d 239, 248 (1965). For a
Sommerville, 193 Ill.App.3d 161, 174-75 (1990)), the fact
recent application of that principle, see People v. Garner, 2016
that a statement was made in response to a question does not
IL App (1st) 141583, ¶¶ 47-52 (finding error in admission as
necessarily destroy spontaneity (see, e.g., People v. Smith, 152
excited utterances statements of mother that implicated her
Ill.2d 229, 260 (1992)).” In Smith, the supreme court stated:
daughter in killing her granddaughter (“she killed my baby,” “I
“The proper question is whether the statement was made while
can’t believe she would do this,” and “I can’t believe she did
the excitement of the event predominated.” Smith, 152 Ill.2d
this”), where mother had not personally witnessed the acts that
at 260.
constituted the murder offense, but holding that the admission
In People v. Morales, 2021 IL App (2d) 190408, applying
of the evidence was harmless error).
the excited utterance exception, the appellate court upheld the
Consequence of “Availability of Declarant Immaterial”
admission of 33 seconds of a domestic violence victim’s call
As it relates to this rule and all the other 803 rules, note
to a 911 operator, over the defendant’s objection based on the
the significance of the immateriality of the availability of the
direct result of questioning by the 911 operator. Citing other
out-of-court declarant. That immateriality means that if the out-
decisions where the exception applied despite questioning
of-court declarant is on the witness stand, he or she may testify
(including Williams and Smith), the appellate court held that
to the out-of-court statement. It also means that whether or not
the victim remained under the influence of the startling event
the out-of-court declarant testifies, a person who heard the
when she made the call, and the operator’s questioning did not
statement may testify about the declarant’s Rule 803 statement.
destroy spontaneity.
(3) Then-Existing Mental, Emotional, or Physical (3) Then Existing Mental, Emotional, or Physical
Condition. A statement of the declarant’s then-ex- Condition. A statement of the declarant’s then existing
isting state of mind (such as motive, intent, or plan) state of mind, emotion, sensation, or physical condition
or emotional, sensory, or physical condition (such as (such as intent, plan, motive, design, mental feeling,
mental feeling, pain, or bodily health), but not includ- pain, and bodily health), but not including:
ing a statement of memory or belief to prove the fact (A) a statement of memory or belief to prove
remembered or believed unless it relates to the validity the fact remembered or believed unless it relates to
or terms of the declarant’s will. the execution, revocation, identification, or terms of
declarant’s will; or
(B) a statement of declarant’s then existing state
of mind, emotion, sensation, or physical condition
to prove the state of mind, emotion, sensation, or
physical condition of another declarant at that time
or at any other time when such state of the other
declarant is an issue in the action.
COMMENTARY
to the rule against hearsay if the distinction were of the Committee (see the last sentence of the Commentary on
ignored. IRE 803 on page 6 of this guide):
“The testimony now questioned faced backward “Consistent with prior Illinois law, Rule 803(3)(B)
and not forward. This at least it did in its most obvi- provides that the hearsay exception for admissi-
ous implications. What is even more important, it bility of a statement of intent as tending to prove
spoke to a past act, and, more than that, to an act the doing of the act intended applies only to the
by some one not the speaker.” Shepard, 290 U.S. statements of intent by a declarant to prove her
at 106. future conduct, not the future conduct of another
Relevant Cases on IRE 803(3)(B) person.”) People v. Denson, 2013 IL App (2d)
For cases relevant to IRE 803(3)(B), see e.g., People v. Lawler, 110652, ¶23 (emphasis added by the court).
142 Ill. 2d 548, 559 (1991) (evidence of complainant’s state- For a pre-codification case that cites some of the no longer
ment during a telephone conversation with her father—that applicable common-law principles, see People v. Munoz,
defendant had a gun and that she could not get away—was 398 Ill. App. 3d 455 (2010) (in defendant’s trial for murder,
improperly admitted where State did not use the statement solely deceased victim’s statements that defendant “was jealous of
as evidence of complainant’s state of mind regarding whether her” and “wanted to know where she was and what she was
she consented to intercourse, and State’s closing argument doing all the time” were not admissible). Though relying on
showed that statement was used as substantive evidence of its pre-codification common-law principles, Munoz and cases it
contents); People v. Cloutier, 178 Ill. 2d 141 (1997) (statements cites (such as Lawler and Cloutier) are relevant to IRE 803(3)
of declarants that defendant displayed victim’s body to them in (B) for distinguishing statements showing the state of mind of
effort to force them to submit to his wishes were inadmissible the declarant (which are admissible) as opposed to the state of
on issue of whether defendant’s sexual conduct with victim was mind of another person (which are not admissible).
achieved by use of force—defendant was not the declarant and Statements Admissible to Prove Motive
the declarants’ statements had no bearing on defendants’ state People v. Hill, 2014 IL App (2d) 120506, an appellate court
of mind when he killed victim). As the supreme court pointed decision following a murder conviction, discusses the rule,
out in Cloutier,
other cases that construe it, the distinction between subdivi-
“Under [the state of mind] exception, an out-of- sions (A) and (B), and the standard of review for the admis-
court statement of a declarant is admissible when sibility of this state-of-mind exception to the hearsay rule. In
that statement tends to show the declarant’s state Hill, the appellate court approved admission of Post-It notes
of mind at the time of utterance. [Citation to and another note, all written by the deceased, in which she
Lawler.] In order to be admissible, the declarant’s discussed the defendant’s statements and her intent to end her
state of mind must be relevant to a material issue relationship with him. In rejecting the defendant’s contentions
in the case.” Cloutier, 178 Ill. 2d at 155 (emphasis that the notes were improperly admitted to establish the truth
added). of what the victim had written and to improperly establish the
For an appellate court case applying IRE 803(3)(B) in hold- defendant’s state of mind as a motive for murdering the victim,
ing that a statement was not admissible under this state-of-mind the appellate court reasoned as follows:
exception to the hearsay rule, see People v. Denson, 2013 IL “[T]he notes found in the townhouse were relevant
App (2d) 110652, judgment reversed on other grounds in to demonstrate decedent’s state of mind, and the
People v. Denson, 2014 IL 116231, (holding that the statement additional circumstantial evidence presented at
was improperly admitted as shown by the General Commentary trial was sufficient to establish a basis from which
a reasonable jury could infer that defendant read
the notes, making the disputed evidence relevant (where the availability of the declarant as a witness is imma‑
to suggest defendant’s motive. Thus, the contents terial) represents a substantive change in Illinois law. That is
of the handwritten notes were not hearsay, as so because Illinois decisions had required the unavailability of
they were not offered for the truth of the matter the out-of-court declarant in order to trigger the rule’s appli-
asserted, but were admitted for the effect that they cation, which would have required its placement as an 804
had on defendant.” Hill, at ¶58. rule. Note, too, that this codification alters the requirement
Statements Admissible to Show Decedent’s State of Mind in previous cases that there be a reasonable probability that
In Dohrmann v. Swaney, 2014 IL App (1st) 131524, the the statement was truthful. See the thorough discussion of this
appellate court did not refer to IRE 803(3), but instead applied issue in section (b) under the “Recommendations” discussion
common-law principles for events that occurred before the in the Committee’s general commentary on the bottom of page
adoption of the codified evidence rules. Nevertheless, under 5 through page 6 of this guide.
either analysis, the result would not have differed. In that case, An example of a pre-codification decision that required
the plaintiff and Mrs. Rogers agreed in writing for Mrs. Rogers to the unavailability of the declarant to testify and a reasonable
transfer approximately $5.5 million in cash and property upon probability that the proffered statements are truthful is People
Mrs. Rogers’ death, in exchange for the plaintiff’s agreement to v. Caffey, 205 Ill. 2d 52 (2001). Again, the requirements of the
have his two young sons incorporate the Rogers name into their declarant’s unavailability and a reasonable likelihood of the
names to help the Rogers name continue after Mrs. Rogers’ statement’s truthfulness no longer are relevant to the applica-
death. The addition of “Rogers” to the sons’ middle names was tion of this rule.
effected. On appeal from the circuit court’s finding that the con- Thus, in the post-codification decision of People v. Herring,
tract was not enforceable and its grant of summary judgment 2018 IL App (1st) 152067, ¶ 64, the appellate court erred in
in favor of the estate of Mrs. Rogers, the plaintiff contended failing to apply IRE 803(3) and in wrongly citing Caffey in
that it was error for the circuit court to consider Mrs. Rogers’ approving the admission of the murder victim’s statement,
statements to third parties regarding her suspicions that he “was before he was killed, that his car had been broken into and
after” her property. In affirming the grant of summary judgment he was going to await the arrival of police. The court’s error
and in reasoning that the statements were not admitted to prove was in approving the “state of mind” exception to the hearsay
the truth of what she believed, the appellate court held that the rule based on its reasoning that the deceased declarant was
statements were admissible as relevant to Mrs. Rogers’ state of unavailable to testify and there was a reasonable probability
mind to show her reluctance to enter the agreement with the that the hearsay statement was truthful. Without applying those
plaintiff. unnecessary requirements, however, application of IRE 803(3)
Substantive Changes in Illinois Law would have led to the identical result.
Note that, though the Illinois rule is substantively identical
to its federal counterpart, the placement of it as an 803 rule
(4) Statement Made for Medical Diagnosis or (4) Statements for Purposes of Medical Diagnosis
Treatment. A statement that: or Treatment.
(A) is made for—and is reasonably pertinent (A) Statements made for purposes of medical
to—medical diagnosis or treatment; and treatment, or medical diagnosis in contemplation
(B) describes medical history; past or present of treatment, and describing medical history, or past
symptoms or sensations; their inception; or their or present symptoms, pain, or sensations, or the
general cause. inception or general character of the cause or exter-
nal source thereof insofar as reasonably pertinent to
diagnosis or treatment but, subject to Rule 703, not
including statements made to a health care provider
consulted solely for the purpose of preparing for
litigation or obtaining testimony for trial, or
(B) in a prosecution for violation of sections
11-1.20, 11-1.30, 11-1.40, 11-1.50, or 11-1.60 of
the Criminal Code of 1961 (720 ILCS 5/11-1.20,
11-1.30, 11-1.40, 11-1.50, 11-1.60), or for a viola-
tion of the Article 12 statutes in the Criminal Code
of 1961 that previously defined the same offenses,
statements made by the victim to medical personnel
for purposes of medical diagnoses or treatment
including descriptions of the cause of symptom, pain
or sensations, or the inception or general character
of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.
COMMENTARY
v. Anderson, 113 Ill. 2d 1 (1986), discussed in the Author’s Note that the original version of IRE 803(4)(B) was amended
Commentary on Ill. R. Evid. 703. by the supreme court, effective April 26, 2012. The rule amend-
Common-Law Basis for IRE 803(4)(A) ment was necessary because, in Public Act 96-1551, effective
In People v. Gant, 58 Ill. 2d 178 (1974), before the adoption July 1, 2011, the General Assembly amended section 115-13
of the Federal Rules of Evidence, the supreme court held that by adding section numbers (while retaining section numbers
statements made by a patient to a doctor for treatment purposes that had been repealed), and it also altered the section numbers
concerning the cause or the external source of the condition to of numerous statutes relating to sex offenses in the Criminal
be treated are substantively admissible. Code of 1961 (now, the Criminal Code of 2012). As relevant
Offenses within the Statutes Listed in IRE 803(4)(B) here, Public Act 96-1551 moved sex offenses from Article 12
Though the current version of the federal rule is substan- (which addresses “Bodily Harm” offenses) to Article 11 (which
tively identical to the pre-amended rule, the pre-amended addresses “Sex Offenses”), thus renumbering the statutes listed
version of the federal rule did not have a subdivision (B). in the original version of IRE 803(4)(B).
The pre-amended version of the federal rule simply had no Specifically, the statute that addresses the offense of criminal
subdivisions, combining what is now subdivisions (A) and (B) sexual assault, formerly section 12-13, is now section 11-1.20
into a single FRE 803(4). Illinois’ subdivision (B), in IRE 803(4) (720 ILCS 5/11-1.20); the statute that addresses aggravated
(B), however, differs from the federal pre-amended version criminal sexual assault, formerly section 12-14, is now section
and, specifically, what is now FRE 803(4)(B) and which has no 11-1.30 (720 ILCS 5/11-1.30); the statute that addresses the
federal counterpart. offense of predatory criminal sexual assault of a child, formerly
The Illinois rule is a near-verbatim reproduction of section section 12-14.1, is now section 11-1.40 (720 ILCS 5/11-1.40);
115-13 of the Code of Criminal Procedure of 1963 (725 ILCS the statute that addresses the offense of criminal sexual abuse,
5/115-13; provided at Appendix K). Both section 115-13 and formerly section 12-15, is now section 11-1.50 (720 ILCS 5/11-
IRE 803(4)(B) provide for the admission, as an exception to 1.50); and the statute that addresses the offense of aggravated
the hearsay rule, of statements made to medical personnel by criminal sexual abuse, formerly section 12-16, is now section
a victim of the sex offenses provided in the section numbers 11-1.60 (720 ILCS 5/11-1.60). Both the pre-amended and
that are listed in IRE 803(4)(B), concerning the source of the amended section 115-13 are provided in the appendix to this
victim’s symptoms for medical diagnosis or treatment—without guide at Appendix K.
regard for the distinction between “diagnosis” and “treatment” Decisions Applying the Statute Underlying IRE 803(4)(B)
that is present in IRE 803(4)(A). The result is broader substantive In People v. Falaster, 173 Ill. 2d 220 (1996), the supreme court
admissibility of a victim’s statements related to the sex offenses held that section 115-13 of the Code of Criminal Procedure,
described in the statutes provided in subdivision (B). which is the basis for IRE 803(4)(B) and a codification of the
Another distinction to be noted within the Illinois rule itself common-law rule that admits statements concerning medical
is that IRE 803(4)(A) is not limited to statements made directly treatment and which—the court noted—does not distinguish
to health care providers (thus allowing admissibility even for between examining physicians and treating physicians, permit-
statements made to laypersons—if they are for the purpose of ted admissibility of a victim’s statement to medical personnel
treatment); while IRE 803(4)(B) is limited to statements made to about sexual history, including the identification of the offender
“medical personnel.” Of course, in many instances the hearsay who was the victim’s father. In response to the defendant’s
exceptions provided by IRE 803(2) (excited utterance) or IRE contention that the statute “did not authorize the nurse to
803(3) (then existing mental, emotional, or physical condition) testify to the victim’s identification of the offender because
may be used to gain admission, depending on relevant factual the identification was irrelevant to the victim’s diagnosis and
circumstances. treatment” (Falaster, 173 Ill. 2d at 229), the supreme court held
that “at least in the family setting, a victim’s identification of a harmless because of the strong corroborating nature of the
family member as the offender is closely related to the victim’s defendant’s confession.
diagnosis and treatment in cases involving allegations of sexual In People v. Drake, 2017 IL App (1st) 142882 (partially
abuse.” Id. at 230. affirmed and partially reversed in People v. Drake, 2019 IL
In People v. McNeal, 405 Ill. App. 3d 647 (2010), the 123734), while in a bathtub, a six-year-old boy suffered sec-
appellate court held that a nurse’s testimony about a triage ond- and third-degree burns on his buttocks, genital region,
nurse’s note concerning the sexual assault of the victim was and on both feet up to his ankles. After more than a week in
not hearsay because it was relevant to the nurse’s actions in the hospital, he told a nurse that the defendant, his step-father,
treating the victim. But even if it were hearsay, the court held, had poured a cup of hot water on him. The primary issue for
it was admissible under section 115-13 of the Code of Criminal the appellate court was the propriety of the admission into evi-
Procedure as an exception to the hearsay rule, adding that the dence, in this bench trial, of the boy’s statements to the nurse—
fact that the information on the note was taken by a nurse other primarily the boy’s identification of the defendant as the person
than the nurse who testified at trial was not a bar to the admis- responsible for his injuries. Finding that the boy’s statement
sion of the evidence. Moreover, the court held, the evidence was not made to assist in his medical diagnosis or treatment,
was not “testimonial hearsay” and therefore did not violate the in that it occurred more than a week after the treatment for
confrontation clause, pursuant to the holding in Crawford v. his injuries had commenced, the appellate court held that “the
Washington, 541 U.S. 36 (2004). common-law exception to the hearsay rule did not apply to the
In People v. Freeman, 404 Ill. App. 3d 978 (2010), the identification portion of [the boy’s] statement.” Id. at ¶ 25. The
appellate court recognized the conflict between section 115-3, appellate court therefore held that the trial court had abused its
which allows admissibility, and the rape shield statute (725 discretion in admitting the statements. It therefore reversed the
ILCS 5/115-7(a)—provided at Appendix E, and discussed in the defendant’s conviction for aggravated battery, holding in addi-
Author’s Commentary on Ill. R. Evid. 412), which denies admis- tion, with one justice dissenting, that double jeopardy barred a
sibility. The court held that the statement of the victim that she retrial. On further review in People v. Drake, 2019 IL 123734,
had not had previous sexual intercourse, made to a doctor by the supreme court noted that the State did “not dispute the
the 12-year-old victim of a sex offense, was admissible because appellate court’s holding that admission of [the boy’s] out-of-
it was relevant to the issue of whether, based on the physical court statement was reversible error.” Drake, 2019 IL 123734,
examination of the victim by the doctor, a sexual assault had ¶18. But on the issue of double jeopardy, finding that even the
occurred. improperly admitted evidence as well as other circumstantial
In People v. Spicer, 379 Ill. App. 3d 441 (2008), the appel- evidence should be considered in determining the application
late court upheld, as an exception to the hearsay rule, the of double jeopardy, the supreme court reversed the appellate
admission of the victim’s statement to a doctor that she had court’s holding that double jeopardy barred a retrial. The case
been “tied and raped,” over the defendant’s contention that she was therefore remanded to the circuit court for retrial.
had not sought treatment, but only evidence collection. The As a follow-up to Falaster and Drake, the Seventh Circuit
court held that the statement by the elderly victim, who was case of Lovelace v. McKenna, 894 F.3d 845 (7th Cir. 2018), has
unable to be present for trial because of a medical condition, relevance. In Lovelace, plaintiff sought to corroborate his claim
was admissible as an exception to the hearsay rule, based on that the defendants, Illinois Department of Corrections correc-
Falaster’s holding that section 115-13 does not distinguish tional officers, had beaten him, causing the injuries that were
between treatment and diagnosis. The court held, however, the subject of his federal lawsuit. He sought to do this through
that there had been a violation on the separate issue of the the proffer of evidence that, a couple of months after the
Sixth Amendment Confrontation Clause, but that the error was alleged beating, he told a psychologist from whom he sought
treatment that the defendants had beaten him. In her report, within the exception because it was not made for diagnosis or
the psychologist had noted that plaintiff told her that “the C/Os treatment, and the district court was permitted to rely on the
kicked my ass.” The district court allowed evidence of plaintiff’s psychologist’s assessment of what statements were made for
statements to a nurse and a physician’s assistant, immediately medical treatment.
after the alleged incident, that he had been in a fight, had suf- Another relevant Seventh Circuit decision is United States
fered injuries, and required pain medication; however, those v. Norwood, 782 F.3d 1932 (7th Cir. 2020). In that case, a jury
statements contained nothing about the defendants’ beating convicted defendant of attempted transportation of a minor, a
plaintiff. (Plaintiff had been in a fight with a fellow inmate 15-year-old girl, across state lines with the intent that the minor
on the same day as the alleged beating by the defendants.) engage in prostitution. The minor did not testify at trial. Instead,
The district court also allowed the notes of the psychologist a sexual assault nurse examiner testified to what the minor had
to be admitted, but it redacted plaintiff’s statement about the told her about sexual encounters with numerous men, with-
“ass-kicking” and barred the psychologist from testifying about out disclosing defendant’s name. The nurse’s notes, with the
it on the basis that it constituted inadmissible hearsay. On defendant’s name extracted, also were admitted. In response
appeal from a verdict for the defendants, the Seventh Circuit to defendant’s contention that his right of confrontation was
found no abuse of discretion in this ruling, rejecting plaintiff’s denied by this procedure, the Seventh Circuit reasoned that the
argument that the statement related to damages. Moreover, it sexual assault examination served both medical and investiga-
rejected plaintiff’s contention that FRE 803(4)(A) which, similar tory purposes but, given the redaction of defendant’s name, it
to the Illinois rule, allows admissibility if the statement “is concluded that the statements of the minor were for the primary
made for—and is reasonably pertinent to—medical diagnosis purpose of medical attention, and it held that defendant’s right
or treatment.” The court held that the district court had not to confrontation was not violated. Norwood, at 1042-1052.
abused its discretion in finding that the statement did not fall
COMMENTARY
(6) Records of a Regularly Conducted Activity. A (6) Records of Regularly Conducted Activ-
record of an act, event, condition, opinion, or diagnosis ity. Except for medical records in criminal cases, a
if: memorandum, report, record, or data compilation, in
(A) the record was made at or near the time any form, of acts, events, conditions, opinions, or diag-
by—or from information transmitted by—someone noses, made at or near the time by, or from information
with knowledge; transmitted by, a person with knowledge, if kept in the
(B) the record was kept in the course of a regu- course of a regularly conducted business activity, and
larly conducted activity of a business, organization, if it was the regular practice of that business activity to
occupation, or calling, whether or not for profit; make the memorandum, report, record or data compi-
(C) making the record was a regular practice of lation, all as shown by the testimony of the custodian
that activity; or other qualified witness, or by certification that
(D) all these conditions are shown by the testi- complies with Rule 902(11), unless the opposing party
mony of the custodian or another qualified witness, shows that the source of information or the method or
or by a certification that complies with Rule 902(11) circumstances of preparation indicate lack of trustwor-
or (12) or with a statute permitting certification; and thiness. The term “business” as used in this paragraph
(E) the opponent does not show that the source includes business, institution, association, profession,
of information or the method or circumstances of occupation, and calling of every kind, whether or not
preparation indicate a lack of trustworthiness. conducted for profit.
COMMENTARY
vides for the results of blood tests performed for the purpose (625 ILCS 5/11-501.4). Having so noted, it concluded “that
of determining the content of alcohol, and “that the statutory section 11-501.4 of the Vehicle Code specifically allows the
provision allowing the introduction of medical records in the hospital blood test results to be admitted at defendant’s trial,
prosecution of DUI cases promulgated in section 11-501.4 sur- despite the more general prohibitions contained in Rule 803(6)
vives the enactment of the Illinois Rules of Evidence and is not of the Illinois Rules of Evidence and in section 115-5(c) of the
affected or modified thereby.” Hutchison, at ¶24. In approving Code of Criminal Procedure.” Deroo, at ¶ 44. The dissenting
the testimony of the nurse who drew the defendant’s blood, the justice contended that Hutchison was wrongly decided, that
court also noted that, to lay a proper foundation for the admis- the evidence rule’s plain terms conflicted with the statute’s
sion of business records generally, it is not necessary for the terms, and that under prior decisions of the supreme court, the
maker of the records or the custodian of the records to testify, supreme court has the primary constitutional authority over
and it pointed out that, in a case such as this, chain-of-evidence court procedure and therefore the supreme court rule prevails.
testimony is related to the weight of testimony rather than Neither the majority nor the dissent noted or discussed Turner.
admissibility. Earlier, in People v. Wuckert, 2015 IL App (2d) 150058, the
Later, in People v. Turner, 2018 IL App (1st) 170204, the appellate court applied section 11-501.4-1 in upholding the
appellate court applied Hutchison in holding that evidence propriety of a nurse providing a requesting police officer the
from a hospital blood draw, used to prove the defendant’s results of the defendant’s urine test, which had been obtained
blood alcohol serum level, was properly admitted in evidence, during the course of his medical treatment and which estab-
despite IRE 803(6)’s exclusion from the business record lished the presence of intoxicating compounds in his body.
exception of medical records in criminal cases. The defendant Later, in People v. Mueller, 2021 IL App (2d) 190868, the appel-
had argued that section 11-501.4 of the Illinois Vehicle Code late court applied Wuckert in holding that section 11-501.4-1
(625 ILCS 5/11-501.4), which permits admission, under the allowed police to obtain the results of a medical blood test
business record exception to the hearsay rule, of the results of taken by a hospital from the defendant after a car accident.
“blood or urine tests performed for the purpose of determining The takeaway from the above cases: As noted above, the
the content of alcohol” when taken in a hospital emergency supreme court has allowed leave to appeal in Deroo. As also
room, conflicted with and was preempted by the exclusion noted, in addition to that decision, a number of panels of the
that applies to criminal cases in IRE 803(6). Citing, as did the appellate court have concluded that hospital blood test results
Hutchison court, the first two sentences in the fourth paragraph are properly admissible under section 11-501.4 of the Illinois
of the general Committee Commentary to the Illinois Rules of Vehicle Code despite the general prohibition in IRE 803(6).
Evidence (see he fourth paragraph on page 1 of this guide) about Indeed, the dissenting justice’s opinion in Deroo is an outlier
the codified rules not intending “to abrogate or supersede any to that authority. If the supreme court reverses Deroo, it will
current statutory rules of evidence,” the appellate court held do so based on the explicit statement in IRE 803(6)—derived
that it could not find “an irreconcilable conflict” between the from a state statute—that medical records in criminal cases are
statute and the evidence rule. Turner, at ¶72. excluded from the Rule. But there is significant authority for
Still later in this series of decisions, a majority of a panel not overruling Deroo because, as noted above, the prohibition
of the appellate court in People v. Deroo, 2020 IL App (3d) against admitting hospital records in criminal cases in IRE
170163, appeal allowed 9/30/2020, Docket No. 126120, fol- 803(6) was based solely on the state statute in the Criminal
lowed the holding in Hutchison in approving the admission of Code of Procedure (725 ILCS 5/115-5(c)(1))—a statute that
the defendant’s hospital blood test results. Like Hutchison and conflicts with the statute in the Illinois Vehicle Code (625 ILCS
Turner, the majority noted that there was compliance with the 5/11-501.4), but one the legislature is validly authorized to
requirements of section 11-501.4 of the Illinois Vehicle Code alter or create in its entirety or in part.
“Business” Defined as to who has the burden by making it clear that the burden
It should be noted that the expression “business records of proving lack of trustworthiness is on the opponent of the
exception” is potentially misleading. That is so because the evidence. This is logical because, as in the federal rule, the
rule incorporates more than records kept in the course of a foundation for admission will have been met through the pro-
regularly conducted business activity. That is made clear by the ponent’s satisfying the rule’s other requirements, and because
definition of “business” in the final sentence of the rule (and proving “lack of trustworthiness” is in the opponent’s interest,
in subdivision (B) of the current federal rule). There, the term not a result sought by the proponent of the evidence. It should
“business” is defined to include a broad category of regularly be noted that in its amendment of the rule for the sake of clar-
conducted activities, “whether or not conducted for profit.” ity, the supreme court moved the phrase “Except for medical
records in criminal cases” to the beginning of the rule, rather
The Certification Option and the Rule’s Underlying Statute and
Supreme Court Rule than in its former placement at the end of the rule’s penultimate
The adoption of the certification option of IRE 902(11) in IRE sentence .
803(6) constitutes a substantive change from Illinois common People v. Leach: Autopsy Reports
law by providing an alternative to the prior requirement for For a significant case involving this business record excep-
the testimony of the custodian of the records or a person with tion to the hearsay rule and whether, in a criminal case, an
knowledge of them to provide the foundational basis for the autopsy report is inadmissible as “testimonial hearsay” under
introduction of the evidence. The certification should provide the theory that the right to confrontation under the Sixth
the same information that would be provided by the founda- Amendment may be violated, see People v. Leach, 2012 IL
tional witness. Except for the provision allowing for certifica- 111534. In Leach, the supreme court held that either this rule
tion, the rule is consistent with the provisions of section 115-5 or IRE 803(8) provided a proper foundation for the introduction
of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-5), of autopsy reports as provided by section 115-5.1 of the Code
as well as of Supreme Court Rule 236, which applies in civil of Criminal Procedure of 1963 (725 ILCS 5/115-5.1; provided
cases. Section 115-5 and Supreme Court Rule 236 are provided at Appendix M). As relevant to this rule, the supreme court
in the Appendix to this guide at Appendix L. held that an autopsy report is not a “medical record” for the
See also the Committee’s general commentary related to simple reason that a deceased person is not a patient and the
this rule and to IRE 803(8) in the paragraph entitled “Structural medical examiner is not the deceased person’s doctor. Leach,
Change” starting on page 6 of this guide. 2012 IL 111534 at ¶71. For more on the statute and a thorough
discussion of the Leach opinion, see the Author’s Commentary
Amendments to Rule 803(6) to Clarify that the Burden of Proof
for “Lack of Trustworthiness” Is on the Party-Opponent on Ill. R. Evid. 803(8).
FRE 803(6)(E) was added to FRE 803(6) effective December Relevant Statutes
1, 2011, when amendments were made solely for stylistic A statute relevant to this exception to the hearsay rule is
purposes. That rule was amended again effective December section 8-401 of the Code of Civil Procedure (735 ILCS 5/8-
1, 2014, merely to clarify that the burden of showing “that 401), which addresses the admissibility of account books and
the source of information or the method of circumstances of records.
preparation indicate a lack of trustworthiness” is on the party Another relevant statute, providing a business record excep-
opposing the admission of the record rather than on the pro- tion for civil cases involving abused, neglected, or dependent
ponent of the evidence. Though the Illinois rule does not have minors, is in section 2-18(4)(a) of the Juvenile Court Act of
a subdivision (E), effective September 28, 2018, the Illinois 1987 (705 ILCS 405/2-18(4)(a)). For decisions involving appli-
Supreme Court amended IRE 803(6) to remove any ambiguity cation of the statute and discussing other cases, see In re J.L.,
M.L., and A.L., 2016 IL App (1st) 152479; and In re Nylami M., of Kozlowski’s [the police officer who administered the
2016 IL App (1st) 152262 (pointing our that the statute is “a Breathalyzer] testimony makes clear that, although he testified
variation of the common law business records exception” in that the record was kept in the regular course of business for
cases involving a minor in an abuse, neglect or dependency the Belvidere police department, he never testified that ‘it was
proceeding). But for a decision holding that the hearsay the regular course of such business to make such memorandum
exception was improperly invoked and applied based on the or record at the time of such act, transaction, occurrence, or
State’s failure to comply with the certification requirement of event or within a reasonable time thereafter.’” Harris, at ¶ 22.
the statute, resulting in the reversal and remand of the circuit (Emphasis added by the court). The appellate court held that,
court’s finding that respondents were unfit parents, see In Re although the logbook was “documented and signed” by
M.H., 2020 IL App (3d) 190731. another officer, the officer who administered the test and testi-
fied presented no testimony that the other officer documented
Selected Post-Codification Decisions Addressing the Business
Records Exception and signed the logbook “at the time of such [certification] or
For an example of a case affirming the admission of an within a reasonable time thereafter,” and that “[w]ithout this
insurance carrier’s claim file related to a workers’ compensa- testimony, the State failed to lay the necessary foundation.” Id.
tion claim under this exception to the hearsay rule, see Holland In People v. Eagletail, 2014 IL App (1st) 130252, a DUI case,
v. Schwan’s Home Service, Inc., 2013 IL App (5th) 110560. In the appellate court cited IRE 803(6) in holding that there was
that case, the appellate court considered the admission of the a sufficient foundation for admission of a computer-generated
claim file as a business record, rejecting objections based on copy of the printout from the breath machine to satisfy the
(1) hearsay within hearsay; (2) attorney-client privilege; (3) business records exception to the hearsay rule.
preparation in anticipation of litigation; and (4) work-product In People v. Ramos, 2018 IL App (1st) 151888, a police
protection. Holland, at ¶¶177-206. detective testified to receiving information from T-Mobile
In JPMorgan Chase Bank, N.A. v. East-West Logistics, L.L.C., derived from the mobile phone of the defendant’s co-defen-
2014 IL App (1st) 121111, the appellate court addressed the dant. That information confirmed that the co-defendant, who
foundational requirements for business records, providing was identified, along with the defendant, as one of the two
citations to other cases and noting that the adoption of the rule robbers of the victim, had traveled the same route on the same
made no substantive changes to the requirements of Supreme date and time as the victim before and to the point of the
Court Rule 236. Pointing out, as other cases have, that a robbery, by following coordinates of “pings” off of cell towers.
computer-generated business record is admissible under this But no business records form T-Mobile were introduced at
exception to the hearsay rule, the court provided the require- trial. The information concerning the pings came solely from
ments for the admission of such evidence and addressed other the testimony of the detective. Finding that the testimony of
issues related to admissibility. the detective was hearsay that was not subject to any hearsay
In People v. Harris, 2014 IL App (2d) 120990, ¶¶20-22, the exception, and pointing out that the same information could
appellate court held that there had not been a proper founda- properly have been introduced through T-Mobile’s business
tion for admission of a logbook showing that a Breathalyzer records (which are subject to an exception to the hearsay rule),
machine used to conduct a breath test on the defendant had the appellate court found sufficient error to reverse the defen-
been certified as accurate. The court held that, “A review dant’s conviction and remand the case for a new trial.
(7) Absence of a Record of a Regularly Conducted (7) Absence of Entry in Records Kept in Accor-
Activity. Evidence that a matter is not included in a dance With the Provisions of Paragraph (6). Evi-
record described in paragraph (6) if: dence that a matter is not included in the memoranda
(A) the evidence is admitted to prove that the reports, records, or data compilations, in any form, kept
matter did not occur or exist; in accordance with the provisions of paragraph (6), to
(B) a record was regularly kept for a matter of prove the nonoccurrence or nonexistence of the matter,
that kind; and if the matter was of a kind of which a memorandum,
(C) the opponent does not show that the possi- report, record, or data compilation was regularly made
ble source of the information or other circumstances and preserved, unless the opposing party shows that the
indicate a lack of trustworthiness. sources of information or other circumstances indicate
lack of trustworthiness.
COMMENTARY
(8) Public Records. A record or statement of a (8) Public Records and Reports. Records, reports,
public office if: statements, or data compilations, in any form, of public
(A) it sets out: offices or agencies, setting forth (A) the activities of the
(i) the office’s activities; office or agency, (B) matters observed pursuant to duty
(ii) a matter observed while under a legal duty imposed by law as to which matters there was a duty
to report, but not including, in a criminal case, to report, excluding, however, police accident reports
a matter observed by law-enforcement personnel; and in criminal cases medical records and matters
or observed by police officers and other law enforcement
(iii) in a civil case or against the government personnel, or (C) in a civil case or against the State in a
in a criminal case, factual findings from a legally criminal case, factual findings from a legally authorized
authorized investigation; and investigation, but not findings containing expressions
(B) the opponent does not show that the source of opinions or the drawing of conclusions, unless the
of information or other circumstances indicate a lack opposing party shows that the sources of information
of trustworthiness. or other circumstances indicate lack of trustworthiness.
COMMENTARY
ex rel Wenzel v. Chicago and North Western Ry. Co., 28 Ill. 2d court favorably cited a federal district court that: “The majority
205, 211-12 (1963): of courts allow the admission of factual reports as long as they
“At common law it has long been settled as an do not contain agency conclusions on the probable cause of
exception to the hearsay rule that records kept by accidents.” Barker, 261 Ill. App. 3d at 1074.
persons in public office, which they are required Examples of Illinois decisions on the non-admissibility of
either by statute or the nature of their office to “opinions” contained in public reports include Bloomgren v.
maintain in connection with the performance of Fire Insurance Exchange, 162 Ill. App. 3d 594 (1987) (error
their official duties, are admissible in evidence to admit opinion as to the cause of a fire in a fire incident
and are evidence of those matters which are report “that the ‘ignition factor’ of the fire was ‘electrical,’ and
properly required to be maintained and recorded that the equipment involved in ignition was ‘fixed wiring’);
therein. [Citations.] This exception, as pointed out Lombard Park District v. Chicago Title & Trust Co., 105 Ill. App.
by Professor Cleary, is ‘based upon the assump- 2d 371 (1969) (agency was not authorized to make flood plain
tions that public officers will perform their duties determinations).
and are without motive to falsify, and that public The adoption of IRE 803(C)—without Beech Aircraft’s inter-
inspection, to which some such records are sub- pretation—appropriately reflects Illinois common law. That
ject, will disclose inaccuracies.’” adoption accurately reflects Illinois’ allowance of “factual find-
For an example of an Illinois case distinguishing factual ings from a legally authorized investigation,” while eschewing
findings from conclusions, see Barker v. Eagle Food Centers, “causes and effects, involving the exercise of judgment and dis-
261 Ill. App. 3d 1068 (1994), where the appellate court held cretion, expressions of opinion, or the drawing of conclusions.”
that a statement in a “Care Report” prepared by firefighters was
September 28, 2018 Clarification that the Burden of Proof for
properly not admitted because the firefighters were not qualified “Lack of Trustworthiness” Is on the Party-Opponent
to provide evidence concerning the cause of the plaintiff’s slip When the federal rules were amended effective December
and fall, and where the general common-law rules concerning 1, 2011—solely for stylistic purposes—the last clause of what
admission of public records in Illinois were provided: had been FRE 803(8)(C) became FRE 803(8)(B). It then read:
“Official records kept by public officials are gen- “neither the source of information nor other circumstances
erally admissible as an exception to the hearsay indicate a lack of trustworthiness.” That version of FRE 803(8)
rule if required by statute or authorized to be (B) was again amended to its present form, effective December
maintained by the nature of the office; however, 1, 2014, this time to establish that the burden of proving “lack
records made by public officials or employees that of trustworthiness” is on the party-opponent. According to the
concern causes and effects, involving the exercise federal Advisory Committee on Evidence Rules, the amendment
of judgment and discretion, expressions of opin- that resulted in the current version of FRE 803(8)(B) was meant
ion, or the drawing of conclusions, are generally merely to clarify that the burden of showing “that the source
not admissible under the public records exception of the information or other circumstances [that] indicate a lack
unless they concern matters about which the offi- of trustworthiness” is on the party opposing the admission of
cial would be qualified to testify at trial.” public records rather than on the proponent of the evidence.
In Anderson v. Alberto-Culver USA, Inc., 337 Ill. App. 3d As part of its amendments effective September 28, 2018,
643 (2003), a decision that illustrates the admissibility of “fac- the Illinois Supreme Court also added language to IRE 803(8)
tual findings,” the appellate court approved the admission of that clarified that the burden of proving lack of trustworthiness
the National Transportation Safety Board’s factual report based is on the opponent of the evidence. That language is justified
on the information contained in flight planning documents. The because, as in the federal rule, the foundation for admission
will have been met through the proponent’s satisfying the rule’s mary judgment in favor of plaintiff); Village of Arlington Heights
other requirements, and because showing “lack of trustworthi- v. Anderson, 2011 IL App (1st) 110748 (affirming affiant’s
ness” is what the opponent seeks, not a result sought by the reliance on public records and holding that county treasurer
proponent of the evidence. Moreover, there is common-law reports are public records, and further holding that, before the
support for placing the burden on the opponent of the evi- adoption of IRE 803(8), Supreme Court Rule 236 recognized
dence. In Steward v. Crissell, 289 Ill. App. 3d 66 (1997), where both business records and public records as exceptions to the
the issue was the admissibility of the medical examiner’s tox- hearsay rule and that the legal principles behind the rule are
icology report under section 115-5.1 of the Code of Criminal not new and that the rule makes no distinction between public
Procedure of 1963 (725 ILCS 5/115-5.1) the appellate court records and computerized public records); Feliciano v. Geneva
held: Terrace Estates HOA, 2014 IL App (1st) 130269, ¶¶ 50-51
“Courts generally allow public records into evi- (holding admissible under IRE 803(8) both a document pre-
dence based in part on the presumption that pub- pared by the city’s department of planning and development,
lic officials, with no motive to falsify records, will after plaintiffs submitted their building plans for approval, and
perform their assigned duties properly. [Citations.] an e-mail reporting on the activities of the office in answering
To overcome this presumption, the party chal- the parties’ inquiry in reporting on finding no official record
lenging such records has the burden of presenting of an easement); and People v. McCullough, 2015 IL App
evidence to show that the records are unreliable.” (2d) 121364, ¶ 113 (holding that FBI reports written after a
Committee’s General Commentary kidnapping and murder of a seven-year-old girl more than 50
See also the Committee’s general commentary related to years before charges were brought against the defendant were
this rule and IRE 803(6) in the paragraph entitled “Structural not admissible as public documents under this rule, because
Change” starting on page 6 of this guide. they contained multiple layers of hearsay, thus violating the
requirement of IRE 805 that each layer of hearsay be excused
Rules for Authenticating, for Self-Authenticating by Certification,
and for Admitting a Copy by its own exception. (Postscript on McCullough: On April 22,
For the rule that provides methods for authenticating or 2016, charges against Jack McCullough were dismissed by the
identifying public records and reports, see IRE 901(b)(7). For circuit court, four years after his conviction, and a week after
the rule that provides for self-authentication by the certification his conviction had been vacated, based on the statement of the
of public records, see IRE 902(4). For the rule that allows the successor to the state’s attorney who prosecuted the case that
admissibility of public records by a “copy certified as correct in there had been flaws in the investigation and prosecution.)).
accordance with Rule 902,” see IRE 1005. Also, see Ill. S. Ct. People v. McClanahan: Invalidity of Section 115-15
R. 216(d), which is provided in the Author’s Commentary on Note that section 115-15 of the Code of Criminal Procedure
Ill. R. Evid. 1005, and which provides a method for admitting of 1963 (725 ILCS 5/115-15), for prosecutions under the
public records by furnishing notice to an adverse party, who Cannabis Control Act, the Illinois Controlled Substances Act,
has 28 days to object. the Methamphetamine Control and Community Protection
Post-Codification Decisions Act, or for reckless homicide or DUI, allows the State to use
For examples of appellate court cases applying IRE 803(8), lab reports in lieu of actual testimony as prima facie evidence
see People ex rel. Madigan v. Kole, 2012 IL App (2d) 110245 of the contents of the substance at issue unless the defendant
(holding that an IRS Report and a Waiver were admissible files a demand for the testimony of the preparer of the report.
under this public records exception to the hearsay rule (and That statute, however, though not repealed, has been held
were self-authenticating under IRE 902(1)), and thus reversing unconstitutional as violative of the confrontation clause of the
a grant of summary judgment for defendant and granting sum-
federal and Illinois constitutions by the Illinois Supreme Court where the toxicologist did not testify, not on the basis that it
in People v. McClanahan, 191 Ill. 2d 127 (2000). was admitted substantively as a business record, but that it
Section 115-5.1: Autopsy Reports contained data reasonably relied upon by expert pathologists
Note also that section 115-5.1 of the Code of Criminal in determining cause of death. (Note also that in a case that
Procedure of 1963 (725 ILCS 5/115-5.1), which is provided in predates the Crawford decision, People v. Nieves, 193 Ill. 2d
the appendix to this guide at Appendix M, makes admissible 513 (2000), the supreme court affirmed the testimony, in a mur-
as an exception to the hearsay rule, in both civil and criminal der prosecution, of the chief medical examiner about the cause
actions, records kept in the ordinary course of business related of death of the decedent, on whom the autopsy was performed
to medical examinations on deceased persons or autopsies, by a retired pathologist who was out of the country at the time
when they are “duly certified by the county coroner, or chief of trial. The testimony was based on the autopsy report of the
supervisory coroner’s pathologist or medical examiner.” The absent pathologist, before the effective date of section 115-5.1.
reports that are admissible include, but are not limited to, There, the supreme court’s approval of the admission of the
certified pathologist’s protocols, autopsy reports, and toxico- chief medical examiner’s testimony was based on the reason-
logical reports. The statute provides that the preparer of the able reliance standard of Rule 703, and not on the business
report is subject to subpoena but, if that person is deceased, record exception.)
a duly authorized official from the coroner’s office may offer Subsequent to the above cases, the United States Supreme
testimony based on the reports. Court decided Bullcoming v. New Mexico, 564 U.S. 647, 131
Cases applying the statute, culminating in the Illinois S. Ct. 2705 (2011). In that case, the Court applied Melendez-
Supreme Court’s decision in People v. Leach, are discussed just Diaz in holding that the testimony of a forensic analyst, who
below under the next topic headings. testified instead of the forensic analyst who had actually tested
Appellate Court Decisions Construing Section 115-5.1 and reported on the blood-alcohol concentration of the DWI
A number of appellate court cases have applied and defendant but who was on “uncompensated leave,” constituted
upheld the business records exception to the hearsay rule in a violation of the confrontation clause.
section 115-5.1 ((725 ILCS 5/115-5.1); available at Appendix In People v. Dobbey, 2011 IL App (1st) 091518, the first
M) against attacks in criminal cases premised on the con- appellate court case addressing the issue of the admissibility
frontation clause in general and the decisions in Crawford v. of autopsy reports after the decision in Bullcoming, the court
Washington, 541 U.S. 36 (2004) (barring testimonial hearsay), adhered to the holdings in the appellate court cases listed
and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. above, and distinguished the case at bar from Melendez-Diaz
2527 (2009) (barring admission of certificates of analysis that (which, based on the admission of certificates of analysis, dealt
substance was cocaine), in particular. The Illinois Appellate with proof of the specific fact that material connected to the
Court cases include People v. Antonio, 404 Ill. App. 3d 391 defendant was cocaine) and Bullcoming (which, based on a
(2010); People v. Cortez, 402 Ill. App. 3d 468 (2010); People v. lab report certifying results of a blood-alcohol test performed
Pitchford, 401 Ill. App. 3d 826 (2010); People v. Leach, 391 Ill. on a sample taken from the defendant when he was arrested
App. 3d 161 (2009) (judgment affirmed on appeal, in People for driving while intoxicated, dealt with proof of the specific
v. Leach, 2012 IL 111534) (see discussion below); People v. fact that the defendant’s blood-alcohol content was above a
Moore, 378 Ill. App. 3d 41 (2007). See also Fatigato v. Village certain limit). Dobbey distinguished those U.S. Supreme Court
of Olympia Fields, 281 Ill. App. 3d 347 (1996) (holding that a decisions on the basis that they involved reports prepared
toxicology report was a business record), but see also People v. “solely for an ‘evidentiary purpose’” and were made in “aid of
Lovejoy, 235 Ill. 2d 97 (2009), where the supreme court based a police investigation,” which made them testimonial in nature.
its approval of a pathologist’s reliance on a toxicology report, Dobbey, at ¶¶75-76.
People v. Leach: Admissibility of Autopsy Reports as Not in-depth analysis of the evolving reasoning of the United States
“Testimonial”
Supreme Court in general, and its members in particular, related
In People v. Leach, 2012 IL 111534, on review of one of to the Court’s holdings from Crawford, through Malendez-
the appellate court decisions listed above, the Illinois Supreme Diaz and Bullcoming, to Williams. The court concluded that,
Court affirmed the appellate court’s judgment, but “for reasons in analyzing the “primary purpose” concerning extrajudicial
other than those offered in the appellate court opinion.” Leach, statements that animates the views of the members of the U.S.
¶ 158. The supreme court therefore did not accept the appel- Supreme Court, and with special focus on conclusions drawn
late court’s reasons for the admissibility of the autopsy report, from both the plurality and the dissent in Williams, “the autopsy
which was based on the rationales that: (1) business records report in the present case was not testimonial because it was
are historically nontestimonial and thus excluded from the (1) not prepared for the primary purpose of accusing a targeted
Crawford rule related to the confrontation clause, and (2) the individual or (2) for the primary purpose of providing evidence
report was admissible as reasonably relied upon by experts to in a criminal case.” Leach, at ¶ 122. The court held that, even
explain the bases of their opinions under IRE 703. Leach, ¶48. when foul play is suspected and the medical examiner’s office
The Leach court noted the plurality opinion in Williams v. is aware of this suspicion, because the autopsy might reveal
Illinois, 567 U.S. 50, 132 S.Ct. 2221 (2012), but distinguished that the deceased died of natural causes, an autopsy report is
that opinion from the case at bar, pointing out that “in Williams, not prepared to provide evidence against a targeted person.
the ‘report itself was neither admitted into evidence nor Leach, at ¶ 126. Observing that, in addition to the plurality
shown to the factfinder.’ The expert witness ‘did not quote or and dissenting views in Williams, even “under Justice Thomas’s
read from the report; nor did she identify it as the source of ‘formality and solemnity’ rule, autopsy reports prepared by a
any of the opinions she expressed.’” In contrast to Williams, medical examiner’s office in the normal course of its duties are
the court noted that, in the case at bar, the testimony of the nontestimonial” (id. at ¶ 136), the supreme court concluded
expert witness (who was not the pathologist who performed the that, because the autopsy report was nontestimonial in nature,
autopsy and prepared the report) included the contents of the it did not violate the confrontation clause and it was properly
autopsy report and the report itself was admitted into evidence. admitted.
Leach, at ¶¶56-57. The court therefore needed to determine (1) Application of Leach
whether the autopsy report was hearsay offered for the truth of Leach was applied in People v. Hensley, 2014 IL App (1st)
the matters inserted therein; (2) if hearsay, whether the report 120802, where, as in Leach, a pathologist other than the one
was admissible under a hearsay exception; and (3) if admissible who performed the autopsy testified and the autopsy report was
under a hearsay exception, whether the report was testimonial admitted into evidence. In Hensley, the defendant argued that
in nature and thus violated the confrontation clause in violation error occurred because, unlike in Leach, the autopsy report
of the Crawford holding. The answers to the first and second was certified. The appellate court rejected that argument,
inquiries were “yes,” the autopsy report was hearsay, but it was noting that the report had not been certified by the examining
admissible under both IRE 803(6) and IRE 803(8), as well as the pathologist, but that a certified copy of the report had been
statutory provisions of section 115-5.1 of the Code of Criminal entered into evidence. The court noted that in an earlier case,
Procedure of 1963 (725 ILCS 5/115-5.1; provided at Appendix People v. Crawford, 2013 IL App (1st) 100310, ¶151, n. 12, the
M). facts were identical, and in that case, too, the appellate court
As for the third and dispositive inquiry concerning the approved the admission of the report. See People v. Crawford,
confrontation clause, the supreme court concluded that the 2013 IL App (1st) 100310, ¶¶ 145-153 for that court’s applica-
Coroner’s Verdict Inadmissible ‘that anyone whose testimony may be relevant in establishing
Note that, in contrast to section 115-5.1 of the Code of the chain of custody, authenticity of the sample, or accuracy
Criminal Procedure discussed above, section 8-2201 of the of the testing device, must appear in person as part of the
Code of Civil Procedure (735 ILCS 5/8-2201), which applies to prosecution’s case.’” The court concluded that “the testimony
both civil and criminal cases and addresses records related to and logbooks provided in this case as to the certification of the
autopsies, prohibits admissibility of evidence related to a cor- Breathalyzer were not testimonial and established a sufficient
oner’s verdict to prove any fact in controversy in a civil action. foundation that it was regularly tested and accurate.”
For more on the Crawford decision and its holding con-
Chain of Custody Evidence Unnecessary for Breathalyzer
Certification cerning a criminal defendant’s right to confrontation, see the
Another Illinois case that analyzed the Melendez-Diaz discussion of Williams v. Illinois in the Author’s Commentary
case—in the context of DUI and the certification of the accu- on Ill. R. Evid. 703 supra, and the discussion of Crawford and
racy of the Breathalyzer machine—is People v. Jacobs, 405 Ill. its progeny in connection with various Illinois statutory hearsay
App. 3d 210 (2010). In that case, the appellate court pointed exceptions in the Author’s Commentary on the Non-Adoption
out that Melendez-Diaz stated in a footnote that it “did not hold of Fed. R. Evid. 807, infra.
(9) Public Records of Vital Statistics. A record of (9) Records of Vital Statistics. Facts contained in
a birth, death, or marriage, if reported to a public office records or data compilations, in any form, of births,
in accordance with a legal duty. fetal deaths, deaths, or marriages, if the report thereof
was made to a public office pursuant to requirements
of law.
COMMENTARY
(10) Absence of a Public Record. Testimony—or (10) Absence of Public Record or Entry. To prove
a certification under Rule 902—that a diligent search the absence of a record, report, statement, or data com-
failed to disclose a public record or statement if: pilation, in any form, or the nonoccurrence or nonexis-
(A) the testimony or certification is admitted to tence of a matter of which a record, report, statement,
prove that or data compilation, in any form, was regularly made
(i) the record or statement does not exist; or and preserved by a public office or agency, evidence in
(ii) a matter did not occur or exist, if a public the form of a certification in accordance with Rule 902,
office regularly kept a record or statement for a or testimony, that diligent search failed to disclose the
matter of that kind; and record, report, statement, or data compilation, or entry.
(B) in a criminal case, a prosecutor who intends
to offer a certification provides written notice of that
intent at least 14 days before trial, and the defendant
does not object in writing within 7 days of receiving
the notice—unless the court sets a different time for
the notice or objection.
COMMENTARY
COMMENTARY
(12) Certificates of Marriage, Baptism, and Sim- (12) Marriage, Baptismal, and Similar Certifi-
ilar Ceremonies. A statement of fact contained in a cates. Statements of fact contained in a certificate that
certificate: the maker performed a marriage or other ceremony or
(A) made by a person who is authorized by a administered a sacrament, made by a clergyman, public
religious organization or by law to perform the act official, or other person authorized by the rules or prac-
certified; tices of a religious organization or by law to perform the
(B) attesting that the person performed a act certified, and purporting to have been issued at the
marriage or similar ceremony or administered a time of the act or within a reasonable time thereafter.
sacrament; and
(C) purporting to have been issued at the time of
the act or within a reasonable time after it.
COMMENTARY
(13) Family Records. A statement of fact about (13) Family Records. Statements of fact concerning
personal or family history contained in a family record, personal or family history contained in family Bibles,
such as a Bible, genealogy, chart, engraving on a ring, genealogies, charts, engravings on rings, inscriptions on
inscription on a portrait, or engraving on an urn or family portraits, engravings on urns, crypts, or tomb-
burial marker. stones, or the like.
COMMENTARY
(14) Records of Documents That Affect an Interest (14) Records of Documents Affecting an Interest
in Property. The record of a document that purports in Property. The record of a document purporting
to establish or affect an interest in property if: to establish or affect an interest in property, as proof
(A) the record is admitted to prove the content of the content of the original recorded document and
of the original recorded document, along with its its execution and delivery by each person by whom it
signing and its delivery by each person who purports purports to have been executed, if the record is a record
to have signed it; of a public office and an applicable statute authorizes
(B) the record is kept in a public office; and the recording of documents of that kind in that office.
(C) a statute authorizes recording documents of
that kind in that office.
COMMENTARY
(15) Statements in Documents That Affect an (15) Statements in Documents Affecting an Inter-
Interest in Property. A statement contained in a doc- est in Property. A statement contained in a document
ument that purports to establish or affect an interest in purporting to establish or affect an interest in property
property if the matter stated was relevant to the docu- if the matter stated was relevant to the purpose of the
ment’s purpose—unless later dealings with the property document, unless dealings with the property since the
are inconsistent with the truth of the statement or the document was made have been inconsistent with the
purport of the document. truth of the statement or the purport of the document.
COMMENTARY
COMMENTARY
805, which provides that hearsay included within court was properly concerned about the shortcomings of the
hearsay is not excluded under the hearsay rule if ancient document rule.
each part of the combined statements conforms to As a postscript to McCullough, note that, after the appellate
an exception. Illinois Rule of Evidence 805 (eff. court affirmed McCullough’s conviction for murder, in early
January 1, 2011) is identical. If we were to read 2016 a new State’s Attorney announced that his investigation
Rule 803(16) as inoculating multiple levels of hear- showed that McCullough could not have committed the crime.
say, Rule 805 would be superfluous. [Citation.] In When the State’s Attorney agreed that the conviction should be
other words, ordinarily Rule 803(16) applies only overturned, the circuit court released McCullough from cus-
where the declarant is the author of the ancient tody, vacated the conviction, and dismissed the case without
document.“ McCullough, at ¶110. prejudice.
Although there is room for debate as to the correctness of
McCullough’s holding on this issue, there is no doubt that the
(17) Market Reports and Similar Commercial (17) Market Reports, Commercial Publica-
Publications. Market quotations, lists, directories, or tions. Market quotations, tabulations, lists, directories,
other compilations that are generally relied on by the or other published compilations, generally used and
public or by persons in particular occupations. relied upon by the public or by persons in particular
occupations.
COMMENTARY
COMMENTARY
not permitted. We think this was an undue restric- Supreme Court Decisions
tion on the right to cross-examine. It certainly is In Darling v. Charleston Community Memorial Hospital,
illogical, if not actually unfair, to permit witnesses 33 Ill. 2d 326 (1965), the supreme court approved the use of
to give expert opinions based on book knowledge, learned treatises in the cross-examination of expert witnesses
and then deprive the party challenging such evi- for impeachment purposes, even where experts did not purport
dence of all opportunity to interrogate them about to base their opinions on such authorities. Because the issue
divergent opinions expressed in other reputable was not before it, the court did not address whether an expert
books.” could testify about reliance on a learned treatise in direct
Note that redirect examination on a learned treatise after a examination.
cross-examination does not convert the statements in the trea- In Lawson v. G.D. Searle & Co., 64 Ill. 2d 543, 557 (1976),
tise to substantive evidence. Illustrative is McKinney v. Hobart the supreme court approved of an expert basing his opinion on
Brothers Company, 2018 IL App (4th) 170333, where plaintiff “a detailed study of all the clinical studies that have been pub-
cross-examined defendant’s corporate representative based on lished in the literature.” Without stating the significance of the
“the Compton studies.” The defendant objected on the basis observation, the court noted that the expert “did not mention
of hearsay, but plaintiff responded that he was not offering the the reports by name, nor did he recite the empirical data drawn
study substantively but merely to impeach the witness. On from the reports or the conclusions of the researchers.”
redirect, defendant questioned the witness in more detail about In Walski v. Tiesanga, 72 Ill. 2d 249 (1978), the supreme
the studies, intending to expose their flaws and unreliability. court noted that learned treatises are not admissible as sub-
Defendant even displayed pages from the studies on a large stantive evidence in Illinois and, because the plaintiff had not
screen. Because defendant had displayed or “published” the sought to admit the treatise as substantive evidence, it refused
studies to the jury on redirect examination, the trial court agreed to consider whether a learned treatise used to cross-examine
with plaintiff that the studies should be admitted in evidence the defendant doctor who recognized the treatise as an author-
and sent them to the jury during its deliberations. In reversing ity, should have been admitted substantively.
the judgment for plaintiff and holding that the trial court’s In People v. Anderson, 113 Ill. 2d 1 (1986), in a criminal
ruling was erroneous, the appellate court held that defendant case involving the insanity defense, the supreme court held that
was entitled “to attempt to neutralize the impeachment without facts and data from other sources, such as psychiatrists, doctors
transforming the Compton studies into substantive evidence.” and counselors, if reasonably relied upon by experts in forming
McKinney, at ¶ 51. The court reasoned that “[t]he redirect opinions, although not admissible as substantive evidence,
examination did not forfeit the hearsay objection and did not could be disclosed to the jury. The court held that “expert
make the Compton studies admissible as substantive.” Id. at witnesses may disclose the contents of otherwise inadmissible
¶53. materials upon which they reasonably rely.” Anderson, 113 Ill.
Following are summaries of Illinois Supreme Court cases (in 2d at 9. The court went on to state:
chronological order) and a few Illinois Appellate Court cases “To prevent the expert from referring to the contents
(also in chronological order) that are relevant to what Illinois of materials upon which he relied in arriving at his
courts of review have held on the issue of learned treatises. conclusion ‘places an unreal stricture on him and
A review of these cases may bring perspective to the status compels him to be not only less than frank with
of such evidence in Illinois, and may help explain the lack of the jury but also *** to appear to base his diagnosis
uniformity in dealing with learned-treatise evidence on direct upon reasons which are flimsy and inconclusive
examination. when in fact they may not be.’ [Citation.] Absent a
full explanation of the expert’s reasons, including
underlying facts and opinion, the jury has no way statement in a medical treatise that was consistent with defen-
of evaluating the expert testimony [citation] and is dant’s theory and contradicted what plaintiff’s expert had said
therefore faced with a ‘meaningless conclusion’ by about the statement in his discovery deposition, when plaintiff’s
the witness [citation].” Id. at 10-11. expert admitted at trial that he had erred in testifying at the
In Anderson, because the hearsay statements relied upon deposition that the treatise supported his opinion, because
by the expert were not from learned treatises, the court did the testimony of defendant’s expert was not impeaching of the
not explicitly address the issue of the admissibility of learned plaintiff’s expert’s testimony at trial and could not be admitted
treatises under Rule 703. for substantive purposes).
In Roach v. Springfield Clinic, 157 Ill. 2d 29 (1993), the The appellate court decision in Sharbono v. Hilborn, 2014
supreme court refused to consider whether FRE 803(18) should IL App (3d) 120597 (as modified upon denial of rehearing), is
be adopted and thus learned treatises should be given substan- noteworthy for its observation that a learned treatise may be used
tive admissibility because, as in Walski, the issue had not been on direct examination, under the holding in Wilson v. Clark, 84
properly preserved in the trial court. Ill. 2d 186 (1981), and under IRE 703, “if a proper foundation
Appellate Court Decisions has been established and if there has been proper disclosure.”
In Mielke v. Condell Memorial Hospital, 124 Ill. App. 3d Sharbono, at ¶35. In a footnote, the appellate court also noted
42 (1984), citing and relying upon other appellate court cases that the rulings of the supreme court in People v. Anderson,
that refused to allow learned treatises as substantive evidence, 113 Ill. 2d 1, 9-12 (1986), and in People v. Pasch, 152 Ill. 2d
the appellate court approved the trial court’s refusal to allow 133, 176 (1992), “albeit in cases that did not involve the use of
an expert witness to read from his notes about the subject of a learned treatise,” seemed to indicate that a party could prop-
treatises or to read from the treatises themselves. This case erly bring out the bases for its medical opinion through the use
provides the foundation for the general principle that, in direct of a learned treatise on direct examination. Sharbono, at note
examination, experts may not quote from learned treatises or 4. The Sharbono court ultimately held, however, that the use of
summarize findings of studies contained within them. the learned treatise in that case was improper because a proper
The appellate court case of Schuchman v. Stackable, 198 foundation for its use had not been established since there was
Ill. App. 3d 209 (1990), is worthy of note because it applied no proof that the treatise was a reliable authority, and because
the holding in Mielke, but even more for the dissenting judge’s there had not been proper pretrial disclosure concerning the
views on why the supreme court’s holding in Anderson use of the treatise. Sharbono, at ¶¶34-37.
implicitly overruled the holding in Mielke and why, in his view, Also noteworthy is the appellate court decision in
Mielke was wrongly decided. Fragogiannis v. Sisters of St. Francis Health Center, Inc., 2015 IL
See also Kochan v. Owens-Corning Fiberglass Corp., 242 App (1st) 141788. In that case, in stressing the authoritativeness
Ill. App. 3d 781 (1993) (recognizing that “this area of the of a manual later used in cross-examination by the plaintiff, the
law is evolving toward more openness in the presentation of appellate court said this:
evidence,” but refusing “to go as far” as the dissenting judge in “On direct examination, plaintiff’s expert, Dr.
Schuchman, while approving the admission of articles based Sobel, testified about the Manual, not for the truth
on its conclusion that the literature was not used to support of the matters asserted therein, but to explain
or bolster the expert’s opinion, but rather as the underlying that he considered the Manual in arriving at
facts for the expert’s opinion). See also Prairie v. Snow Valley his opinions. Dr. Sobel further testified that the
Health Resources, Inc., 324 Ill. App. 3d 1021 (2001) (holding authors were recognized authorities in the field
it was error, justifying in part the trial court’s grant of a new of emergency medicine and that the Manual is
trial, for defendant to provide evidence from its expert about a ‘highly regarded’ and the ‘most comprehensive
source there is’ dealing with emergency airway the authoritativeness of the manual), the appellate court made
management.” Fragogiannis, at ¶28. this observation:
Having pointed out this use of an authoritative manual on “Even if defendants could have somehow shown
direct examination, the appellate court addressed the use of that the trial court committed error, a party is
the manual on cross-examination. Reasoning that “there is no not entitled to reversal based on an erroneous
blanket prohibition on an attorney reading the text of an author- evidentiary ruling unless the error substantially
itative treatise on cross-examination” (id. at ¶29), the appellate prejudiced the aggrieved party and affected the
court held that it was not improper for plaintiff’s counsel to outcome of the case, and the party seeking rever-
read from a treatise favorable to plaintiff on cross-examination, sal bears the burden of establishing prejudice.” Id.
and to question defense witnesses (the defendant physician and Establishing that a Treatise Is Authoritative
two defense-physician experts) “relatively extensively” about In cases where reference to a learned treatise have been
its contents. (id. at ¶ 9). The witnesses were questioned “by upheld, the appellate court has held that a treatise may be
reading them sections of the book and asking the witnesses qualified as authoritative through the trial court’s taking judicial
whether they agreed with the contents.” (Id.) The appellate notice of the fact, or through the witness’s conceding or an
court reasoned that the defense had pretrial notice of the expert witness’s testifying that the treatise is authoritative. In
plaintiff’s use of the treatise, and the defendant’s “witnesses had like fashion, in Stapleton v. Moore, 403 Ill. App. 3d 147 (2010),
every opportunity to explain why the book did not discredit the appellate court cited numerous decisions in holding that a
their expert opinions in the case and to reiterate why their treatise’s authoritativeness may be based upon the competency
positions correctly reflected the standard of care and that it was of the author through the trial court’s taking judicial notice of
complied with.” Id. at ¶32. Perhaps taking into account the use the author’s competence, the witness’s conceding the author’s
of the manual on direct examination (which was not an issue competence, or the cross-examiner’s proving the author’s
addressed by the court, except to point out that it established competence by a witness with expertise in the subject matter.
(19) Reputation Concerning Personal or Family (19) Reputation Concerning Personal or Family
History. A reputation among a person’s family by History. Reputation among members of a person’s
blood, adoption, or marriage—or among a person’s family by blood, adoption, or marriage, or among a
associates or in the community—concerning the per- person’s associates, or in the community, concerning a
son’s birth, adoption, legitimacy, ancestry, marriage, person’s birth, adoption, marriage, divorce, death, legit-
divorce, death, relationship by blood, adoption, or imacy, relationship by blood, adoption, or marriage,
marriage, or similar facts of personal or family history. ancestry, or other similar fact of personal or family
history.
COMMENTARY
COMMENTARY
COMMENTARY
COMMENTARY
for bodily injury “expected or intended by any insured,” and out that the NGRI determination in the criminal proceedings
the insured had been convicted of first degree murder. In so did not determine whether the respondent intentionally and
holding, the supreme court abrogated the holding in Thornton unjustifiably caused the death of the decedent, the appellate
v. Paul, 74 Ill. 2d 132 (1978), which had held that a conviction court held that the doctrine of collateral estoppel did not apply,
constituted only prima facie evidence, which had the effect and thus the summary judgment order was improperly entered.
of preserving the opportunity to rebut the factual basis of the Note that the rule makes admissible, as an exception to
conviction insofar as those facts were applicable to a civil the hearsay rule, evidence of previous convictions. It does not
proceeding. The supreme court adopted instead the “modern address whether such convictions should be given preclusive
trend” that a criminal conviction acts as a bar and collaterally effect in subsequent litigation. From the holding in Savikas, it
estops the retrial of issues in a later civil trial that were litigated appears that the general rule in Illinois is that a conviction is
in the criminal trial. given preclusive effect. In Wells v. Coker, 707 F.3d 756 (7th Cir.
In In re Estate of Marjorie Ivy, 2019 IL App (1st) 181691, 2013), however, the Seventh Circuit discussed what it referred
however, the appellate court distinguished the decision in to as Illinois’ inconsistent general practice regarding preclu-
Savickas. There, the respondent had been found not guilty of sion in convictions based upon pleas of guilty. The court thus
the first degree murder of the decedent by reason of insanity held that the entry of summary judgment was erroneous and
(NGRI). The issue addressed by the appellate court was whether remanded the case to give the plaintiff-appellant “an oppor-
the trial court had properly entered summary judgment against tunity to contest or otherwise explain the facts that underlie
the respondent based on the prohibition in the Probate Act’s his guilty plea.” Wells, 707 F.3d at 764. It should be noted,
“Slayer Statute” (755 ILCS 5/2-6), which provides that a “person however, that the Wells court cited only post-Thornton v. Paul
who intentionally and unjustifiably causes the death of another” decisions but no post-Savikas decisions.
shall not receive property from the decedent’s estate. Pointing
(23) Judgments Involving Personal, Family, or (23) Judgment as to Personal, Family or General
General History, or a Boundary. A judgment that History, or Boundaries. Judgments as proof of mat-
is admitted to prove a matter of personal, family, or ters of personal, family or general history, or bound-
general history, or boundaries, if the matter: aries, essential to the judgment, if the same would be
(A) was essential to the judgment; and provable by evidence of reputation.
(B) could be proved by evidence of reputation.
COMMENTARY
(24) [Other Exceptions.] [Transferred to Rule (24) Receipt or Paid Bill. A receipt or paid bill
807.] as prima facie evidence of the fact of payment and as
prima facie evidence that the charge was reasonable.
COMMENTARY
into evidence does not conclusively establish that jury to consider whether to award none, part, or all
the entire amount of the bill must be awarded to of the bill as damages. Baker, 333 Ill. App. 3d at
the plaintiff. Baker, 333 Ill. App. 3d at 494. The 494.” Stanford, at ¶30.
admission of a bill into evidence merely allows the
Rule 804. Exceptions to the Rule Against Hearsay— Rule 804. Hearsay Exceptions; Declarant
When the Declarant Is Unavailable as a Witness Unavailable
(a) Criteria for Being Unavailable. A declarant is (a) Definition of Unavailability. “Unavailability as
considered to be unavailable as a witness if the declarant: a witness” includes situations in which the declarant—
(1) is exempted from testifying about the subject (1) is exempted by ruling of the court on the
matter of the declarant’s statement because the court ground of privilege from testifying concerning the
rules that a privilege applies; subject matter of the declarant’s statement; or
(2) refuses to testify about the subject matter (2) persists in refusing to testify concerning the
despite a court order to do so; subject matter of the declarant’s statement despite an
(3) testifies to not remembering the subject order of the court to do so; or
matter; (3) testifies to a lack of memory of the subject
(4) cannot be present or testify at the trial or matter of the declarant’s statement; or
hearing because of death or a then-existing infirmity, (4) is unable to be present or to testify at the
physical illness, or mental illness; or hearing because of death or then existing physical or
(5) is absent from the trial or hearing and the mental illness or infirmity; or
statement’s proponent has not been able, by process (5) is absent from the hearing and the propo-
or other reasonable means, to procure: nent of a statement has been unable to procure the
(A) the declarant’s attendance, in the case of a declarant’s attendance (or in the case of a hearsay
hearsay exception under Rule 804(b)(1) or (6); or exception under subdivision (b)(2), (3), or (4), the
(B) the declarant’s attendance or testimony, in declarant’s attendance or testimony) by process or
the case of a hearsay exception under Rule 804(b) other reasonable means.
(2), (3), or (4). A declarant is not unavailable as a witness if exemp-
But this subdivision (a) does not apply if the state- tion, refusal, claim of lack of memory, inability, or
ment’s proponent procured or wrongfully caused the absence is due to the procurement or wrongdoing of the
declarant’s unavailability as a witness in order to prevent proponent of a statement for the purpose of preventing
the declarant from attending or testifying. the witness from attending or testifying.
COMMENTARY
witness’s invocation of a privilege satisfied the requirement of the State’s theory was that the defendant and his passenger
unavailability, and also noted that, although it had not “adopted jointly possessed the cocaine and the defendant sought admis-
Rule 804(a) as an exhaustive definition of ‘unavailability’ under sibility of the passenger’s plea of guilty as a statement against
Illinois law,” it had “embraced the general principles reflected interest under IRE 804(b)(3), the appellate court held that the
therein.” passenger’s plea of guilty was not inconsistent with his having
In People v. Garcia, 2012 IL App (2d) 100656, the appellate joint possession of the cocaine with the defendant and that
court quoted and relied on the rule’s provisions concerning the defendant had failed to show the existence of any of the
“unavailability” in affirming the trial court’s ruling that denied bases provided by IRE 804(a) for establishing the passenger’s
admissibility of the plea of guilty for the offense of cocaine unavailability.
possession by the passenger in the defendant’s truck, where
(b) The Exceptions. The following are not excluded (b) Hearsay Exceptions. The following are not
by the rule against hearsay if the declarant is unavailable excluded by the hearsay rule if the declarant is unavail-
as a witness: able as a witness:
COMMENTARY
COMMENTARY
to comply with the court’s order to testify. Because refusal to of former testimony: (1) the unavailability of the witness who
testify renders the witness unavailable (see section 115-10.2(c) testified at the prior hearing, and (2) an adequate opportunity
and IRE 804(a)(2)), the statute effectively expanded the com- for effective cross-examination during the prior testimony.
mon law former-testimony rule (as well as the now-codified Regarding the “unavailability” requirement, the court
former-testimony rule at IRE 804(b)(1)), but it would have stressed the need for the prosecution to undertake good-faith
violated Crawford’s application of the confrontation clause. efforts prior to trial to locate and present the witness. Torres,
That problem was remedied, however, by Public Act 94-53, ¶¶ 54-55. Although the court questioned whether unavailabil-
effective June 17, 2005, which added subdivision (f) to the ity was adequately shown in this case by the State’s allegation
statute and which states: “Prior statements are admissible under that the absent witness had been deported (noting that “simply
this Section only if the statements were made under oath and establishing the fact of deportation, in support of unavailability,
were subject to cross-examination by the adverse party in a may no longer be enough to establish that requisite for admis-
prior trial, hearing, or other proceeding.” That addition makes sion”), it concluded that the record reflected that the defendant
the statute duplicative of IRE 804(b)(1). appeared to have stipulated to the witness’s unavailability, or
Section 115-10.4 of the Code of Criminal Procedure of conceded it or had forfeited the issue. Torres, ¶¶55-56.
1963 (725 ILCS 5/115-10.4; provided at Appendix R), which Regarding the “adequacy of cross-examination” require-
allows the admission of prior statements when the witness is ment, the court held that factors that must be considered
deceased, is another statute that was affected by Crawford. include: (1) that the cross-examination of the witness had
Public Act 94-53 added language to the statute’s subdivision the same “motive and focus” as the cross-examination at the
(d), which already required that the prior statement sought subsequent proceeding, and (2) that the opposing party had
to be admitted must have been made under oath at a trial, an opportunity for adequate cross-examination of the witness.
hearing, or other proceeding. The added language requires that As to the requirement of adequacy, the court noted that “what
the statement must have “been subject to cross-examination counsel knows while conducting the cross-examination may,
by the adverse party.” That amendment also makes the statute in a given case, impact counsel’s ability and opportunity to
duplicative of IRE 804(b)(1). effectively cross-examine the witness at the prior hearing.”
Torres, ¶62 (emphasis in original).
People v. Torres: Prerequisites for Admissibility of Former
Testimony In applying these factors to the case under review, the
The former-testimony exception to the hearsay rule is supreme court held that the trial court had erred in admitting
often invoked by the State when a witness who had testified the absent witness’s preliminary hearing testimony, based on
at a preliminary hearing in a criminal case is unavailable for its conclusions that at the earlier hearing: (1) defense counsel
trial testimony. In People v. Torres, 2012 IL 111302, without was not privy to certain inconsistent statements the witness had
referring to the codified rule, the supreme court addressed given to the police, (2) counsel did not know of the witness’s
the issues presented by this hearsay exception in criminal status as an alien or the circumstances of his departure from
cases. The court began its analysis by noting that (at least in this country, and (3) there were time and scope restrictions
a criminal case) “constitutional considerations are inextricably placed by the circuit court on counsel at the earlier hearing.
intertwined” with an evidentiary analysis on the question of Torres, ¶¶63-65.
admissibility. Torres, ¶ 47. This is based on a criminal defen- Clearly, knowledge of the requirements provided by the
dant’s Sixth Amendment right of confrontation. See Crawford v. Torres decision is essential for proper application of IRE 804(b)
Washington, 541 U.S. 36, 57-58 (2004). Consistent with U.S. (1) in determining the admissibility of former testimony as a
Supreme Court and its own holdings in prior cases, the Illinois hearsay exception.
Supreme Court noted the two prerequisites for the admission
Examples of Decisions Establishing Adequate and Inadequate In People v. Starks, 2012 IL App (2d) 110273, the State
Opportunity for Previous Examination
appealed the trial court’s grant of defendant’s motion in limine
In People v. Rice, 166 Ill. 2d 35 (1995), the supreme court
that excluded the deceased complainant’s testimony from
determined that the State had an inadequate opportunity to
an earlier sex-offense trial, in which convictions had been
cross-examine the defendant’s codefendant during a hearing on
reversed and the case remanded. Citing section 115-10.4 of
a motion to suppress evidence, because of the limited focus at
the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.4,
such a hearing. The supreme court thus reversed the appellate
which allows admission of a statement of a deceased declarant
court’s reversal of the trial court’s exclusion of the codefendant’s
— see Appendix R), IRE 804(b)(1), and other relevant cases (not
prior testimony during the trial when the codefendant invoked
including Torres, which had been decided 12 days earlier), the
his fifth amendment privilege against self-incrimination. The
appellate court upheld the trial court’s ruling. The court rea-
supreme court reasoned that the suppression hearing did not
soned that at the first trial, “defendant did not have an adequate
allow the State to learn of the codefendant’s relationship with
opportunity or similar motive to cross-examine complainant,
the defendant and to confront the codefendant’s exculpatory
because defendant was provided with incorrect serology test
evidence on behalf of the defendant at the prior hearing.
results, did not know about exculpatory DNA tests, and *** was
In People v. Sutherland, 223 Ill. 2d 187 (2006), the supreme
improperly barred from asking complainant about prior sexual
court determined that the defendant had ample opportunity in
conduct.” Starks, ¶28.
a prior trial to cross-examine a witness and the same motive
Decisions Involving Supreme Court Rule 414
and focus. It thus affirmed the admission of the deceased wit-
In People v. Hood, 2016 IL 118581, the State obtained a
ness’s prior testimony during a retrial.
court order under Supreme Court Rule 414 permitting the video
In People v. Kent, 2020 IL App (2d) 180887, ¶¶93-107, the
evidence deposition of the badly beaten 69-year-old victim of
appeal from the defendant’s second conviction for first-degree
an aggravated battery offense. The evidence deposition was
murder after his first conviction was reversed in People v. Kent,
taken and admitted at trial under IRE 804(b)(1), and the defen-
2017 IL App (2d) 140917, the appellate court applied Torres
dant was convicted. On appeal, the defendant contended that
and other cases in holding that the circuit court had erred in
the deposition testimony was improperly admitted because he
admitting, under IRE 804(b)(1), the testimony from the first trial
had not been present and thus his right to confront the witness
of a witness whom the State alleged was unavailable. The State’s
had been violated. In support, he alleged there was error in not
proffer, the court held, was unsupported by affidavit or sworn
obtaining a written waiver of his right to confront the witness
testimony. This decision highlights, as Torres and other cited
for the evidence deposition as required by Rule 414(e).
cases had emphasized, the necessity of presenting evidence
The supreme court rejected his contentions. It held that the
of the efforts used to procure the presence of an allegedly
requirements of Crawford had been satisfied: the witness was
unavailable witness.
unable to attend the trial because of his mental condition, and
In People v. Lard, 2013 IL App (1st) 110836, the appellate
the defendant had a prior opportunity to cross-examine the
court approved the trial admission of the preliminary hearing
victim at the evidence deposition. Though the defendant had
testimony of a deceased police officer who had testified to
not attended the deposition, he had waived his right to do so,
identifying the defendant as one of two men he observed at
and two of his attorneys had been present and had cross-exam-
a burglary scene, despite the defendant’s contention that his
ined the witness. The court acknowledged that the requirement
attorney did not possess knowledge during the preliminary
of a written waiver under Rule 414(e) had been violated, but
hearing examination that the deceased officer had responded
held that it was not a constitutional requirement, and there was
hours earlier to a break-in at the same location. The court held
ample evidence, including a stipulation by defense counsel,
that the earlier offense was irrelevant to the case at bar.
that the defendant had waived his right to be present. He thus stitutional rights, thus resulting in a reversal of his conviction
had waived his sixth amendment right to confront the witness. for first degree murder and a remand for a new trial.
People v. Weinke, 2016 IL App (1st) 141196, provides an
Seventh Circuit Decision Related to Rule 804(b)(1)
example of a case where an evidence deposition taken under
For an example of the Seventh Circuit’s application of FRE
Supreme Court Rule 414 was determined to have been taken
804(b)(1) (in circumstances equally applicable to IRE 804(b)
pursuant to an unjustified emergency basis, and under circum-
(1)), see U.S. v. Wallace, 753 F.3d 671 (7th Cir. 2014) (trial court
stances that deprived defense counsel of an adequate time to
properly refused admission of a videotaped recantation by a
prepare. The deposition, which incriminated the defendant and
non-testifying alleged purchaser of cocaine from the defendant,
was admitted into evidence after the deponent died months
on the basis that the tape was inadmissible hearsay that had not
later from a cause that defendant argued was unrelated to his
satisfied FRE 801(b)(1)’s requirements that the statements were
actions, was determined to have violated the defendant’s con-
made at a deposition or court hearing in which the declarant
had been subject to cross-examination).
(b)(2) Statement Under the Belief of Imminent (b)(2) Statement Under Belief of Impending
Death. In a prosecution for homicide or in a civil Death. In a prosecution for homicide, a statement
case, a statement that the declarant, while believing made by a declarant while believing that the declar-
the declarant’s death to be imminent, made about its ant’s death was imminent, concerning the cause or
cause or circumstances. circumstances of what the declarant believed to be
impending death.
COMMENTARY
“The belief of the dying man that death is impend- or circumstances of the underlying homicide; (2)
ing furnishes the guaranty of truthfulness which the declarant believes death is impending and
makes his declaration admissible in evidence. almost certain to imminently follow; and (3) the
The rule is that such a declaration must be made declarant is mentally capable of giving an accurate
under the fixed belief and moral conviction of statement regarding the cause or circumstances of
the person making it that his death is impending the homicide.” Gilmore, 356 Ill. App. 3d at 1031.
and certain to follow almost immediately, without People v. Perkins, 2018 IL App (1st) 133981, provides an
opportunity for repentance and in the absence of interesting analysis for the non-application of the dying dec-
all hope of avoidance, when he has despaired of laration exception. In that case the victim was shot in the face
life and looks to death as at hand. (People v. Maria, by the defendant. She made three statements identifying the
359 Ill. 231.) As this court said in the Maria case defendant as the person who shot her. However, despite the
(359 Ill. p. 235), ‘In the first instance the court seriousness of her injury, she gave no indication of a belief
must be satisfied, beyond a reasonable doubt, that in her impending death, she was coherent in making each
the statement was made in extremis, and unless it of her statements, and she died nine days after the shooting.
was so made it should not be allowed to go to the Reviewing and applying a number of decisions related to the
jury.’” Beier, 29 Ill. 2d at 515. dying-declaration exception to the hearsay rule, the appellate
People v. Gilmore, 356 Ill. App. 3d 1023 (2005), provides court concluded that the exception did not apply in this case.
the elements necessary for admission of a dying declaration: Perkins, at ¶¶ 56-66. Ultimately, however, the court allowed
“In order to admit a statement as a dying declara- admissibility under the forfeiture-by-wrongdoing exception to
tion, the proponent must show beyond a reasonable the hearsay rule. Id. at ¶¶81-88.
doubt that: (1) the statement relates to the cause
(b)(3) Statement Against Interest. A statement (b)(3) Statement Against Interest. A statement
that: which was at the time of its making so far contrary
(A) a reasonable person in the declarant’s to the declarant’s pecuniary or proprietary interest,
position would have made only if the person or so far tended to subject the declarant to civil or
believed it to be true because, when made, it criminal liability, or to render invalid a claim by the
was so contrary to the declarant’s proprietary or declarant against another, that a reasonable person
pecuniary interest or had so great a tendency to in the declarant’s position would not have made the
invalidate the declarant’s claim against someone statement unless believing it to be true. A statement
else or to expose the declarant to civil or criminal tending to expose the declarant to criminal liability
liability; and and offered in a criminal case is not admissible unless
(B) is supported by corroborating circum- corroborating circumstances clearly indicate the
stances that clearly indicate its trustworthiness, if trustworthiness of the statement.
it is offered in a criminal case as one that tends to
expose the declarant to criminal liability.
COMMENTARY
in custody, may well be motivated by a desire to curry favor was sufficient indicia of reliability concerning the witness’s
with the authorities and, accordingly, fail to qualify as against extrajudicial statement.
interest.” Caffey, 205 Ill. 2d at 99, citing Williamson v. United People v. Luna
States, 512 U.S. 594, 601-02 (1994) (holding that statements In People v. Luna, 2013 IL App (1st) 072253, the appellate
of the declarant that were partially self-exculpatory but that court held that the trial court’s denial of the defendant’s motion
inculpated the defendant were improperly admitted). to admit the out-of-court statements of two persons under this
Chambers v. Mississippi exception to the hearsay rule was proper, where neither of them
Chambers v. Mississippi, 410 U.S. 284 (1973), is often cited implicated themselves in the offenses, but merely asserted that
in cases that address the common-law version of this rule. In that they were present at the crime scene. Citing Tenney (quoting
case the United States Supreme Court found that, in addition People v. Keene, 169 Ill. 2d 1, 29 (1995)), the court stated that
to having erred in not allowing an adverse examination by the statements must be self-incriminating and against penal inter-
defendant of the witness who allegedly made the extrajudicial est, and that the supreme court has directed that because “‘a
statements that he (the witness) had committed the murder, the statement of such a nature is the bedrock for the exception, that
trial court also erred in not allowing the defendant to call the factor, obviously, must be present.’” Luna, at ¶ 145 (emphasis
witnesses to whom the statements allegedly had been made. added by the court).
The Court offered four factors that provided indicia of reliability People v. Cross
that were relevant in that case: (1) the statement was made In People v. Cross, 2021 IL App (4th) 190114, a prosecution
spontaneously to a close acquaintance shortly after the crime for first degree murder, defendant moved in limine to allow at
occurred; (2) the statement was corroborated by other evidence; trial evidence of a rap music video made by defendant’s cousin,
(3) the statement was self-incriminating and against the declar- a video that defendant argued was a third-party confession to
ant’s penal interest; and (4) in that case, there was an adequate the shooting of the victim. In the video, defendant’s cousin
opportunity to cross-examine the declarant. Note, however, raps, “Nigga shot up Granny house. Had to hunt him down.
that Chambers did not involve an out-of-court statement by an He gone. Where he at? Body resting in the fucking ground. He
absent witness. Rather, it involved prior testimony by a witness gone.” Defendant’s cousin had been shot and killed earlier, so
who was present and available for cross-examination. he was not available to testify. The trial court denied admission
People v. Bowell of the video, concluding that sufficient indicia of trustworthi-
Indeed, in People v. Bowell, 111 Ill. 2d 58 (1980), the Illinois ness did not exist.
Supreme Court held that the Chambers factors were “regarded On appeal after his jury conviction, defendant contended
simply as indicia of trustworthiness and not as requirements that the trial court had erred in not allowing admission of the
of admissibility.” For an Illinois Supreme Court case that dis- rap music video because it prevented him from presenting
cusses both Chambers and the application of the rule before its evidence that his cousin had made the music video in which
codification, see People v. Rice, 166 Ill. 2d 35 (1995) (finding he “took credit” for shooting the victim. After separately deter-
that there was insufficient indicia of the reliability of the code- mining that defendant had properly been found guilty beyond
fendant’s testimony at an earlier suppression hearing, and thus a reasonable doubt, the appellate court held that the trial court
holding that the testimony was inadmissible at trial under either had properly excluded the music video. The court offered
Chambers or FRE 804(b)(3)). See also People v. Tenney, 205 Ill. a number of reasons (see id. at ¶¶ 122-141) for so holding:
2d 411 (2002) (holding that it was error to exclude testimony (1) the statements were not made spontaneously to a close
from a witness that another had provided her a statement that acquaintance shortly after the crime occurred, their having
inculpated him and exculpated the defendant because there been made in a music video three months after the shooting,
which clearly required significant planning and effort; (2)
the statements lacked substantial corroboration, lacking any held that the trial court had not erred in barring the testimony of
details, other than the killing itself; (3) the statements were a witness, who would have testified that another person admit-
not particularly self-incriminating and against the declarant’s ted to him that he possessed the gun that the defendant was
interest because they were very vague, and that other segments charged with possessing, because of the lack of corroborating
of the video may have indicated that defendant’s cousin may circumstances that clearly indicated that the other person’s
not have been referring to himself specifically as the killer but hearsay statement was trustworthy.
instead could have been “glorifying” the murder of the victim In People v. Rebollar-Vergara, 2019 IL App (2d) 140871, ¶¶
by others, including defendant; (4) there was no opportunity to 77-89, based on the lack of trustworthiness, the appellate court
cross-examine defendant’s cousin because he was killed before affirmed the trial court’s exclusion of a codefendant’s statement
trial; and (5) the music video was an artistic endeavor in which that he alone was responsible for the murder offense and his
hip hop artists in particular frequently use their music to boast denial that defendant “had anything to do with this.” The appel-
about crimes that either they had no part in or are even entirely late court stressed that, though a surveillance video showed
fictional, so that the reliability of a statement is diminished that the codefendant was the shooter, it also undermined the
when it is created as a part of an artistic endeavor. codefendant’s other statements related to the offense.
People v. Wright In United States v. Hammers, 942 F.3d 1001 (10th Cir.
The takeaway from the cases, as illustrated by the wording 2019), the Tenth Circuit Court of Appeals cited the same
of Rule 804(b)(3) itself, and as emphasized by the Illinois required conditions provided by Wright. It reasoned that a
Supreme Court in People v. Wright, 2017 IL 119561, is that, “close relationship between the declarant and the defendant
for this exception to the hearsay rule to apply in a criminal can damage the trustworthiness of a statement.” Id. at 1011. In
case there are “three conditions that must be satisfied before that case, the court held that the district court had not abused
a statement will be admitted under the rule: ‘(1) the declarant its discretion in barring the declarant’s suicide note, which
must be unavailable, (2) the declarant’s statement must have accepted full responsibility for the offenses while exonerating
been against his or her penal interest, and (3) corroborating cir- the defendant, reasoning that the declarant (who did commit
cumstances must support the trustworthiness of the statement.’” suicide) had been dishonest and untrustworthy in connection
Wright, at ¶80, citing People v. Rice, 166 Ill. 2d 35, 43 (1995). with her underlying criminal conduct, and that her suicide note
The statement in Bowell that the four factors in Chambers are showed that she “had no intention of sticking around to face
merely related to trustworthiness and not requirements of criminal prosecution.” Id.
admissibility is borne out by the fact that the rule says nothing Need for “Unavailability”
about the first or fourth factors provided by Chambers, and See also the Author’s Commentary on IRE 804(a), discuss-
that are listed above—factors which, when present, merely ing the holding in People v. Garcia, 2012 IL App (2d) 100656,
contribute to trustworthiness. where, in a case alleging joint possession, the plea of guilty
Decisions on Trustworthiness to the offense of possession of cocaine of the passenger in
For a Seventh Circuit decision discussing in detail the defendant’s truck was held to be inadmissible on the basis that
“trustworthiness” requirement of the rule, see United States v. the passenger was not “unavailable” as required by IRE 804(a)
Henderson, 736 F.3d 1128 (7th Cir. 2013), where the court in order to trigger application of IRE 804(b)(3).
(b)(4) Statement of Personal or Family His- (b)(4) Statement of Personal or Family History.
tory. A statement about: (A) A statement concerning the declarant’s
(A) the declarant’s own birth, adoption, own birth, adoption, marriage, divorce, legiti-
legitimacy, ancestry, marriage, divorce, relation- macy, relationship by blood, adoption, or mar-
ship by blood, adoption, or marriage, or similar riage, ancestry, or other similar fact of personal
facts of personal or family history, even though or family history, even though declarant had no
the declarant had no way of acquiring personal means of acquiring personal knowledge of the
knowledge about that fact; or matter stated; or
(B) another person concerning any of these (B) a statement concerning the foregoing
facts, as well as death, if the declarant was related matters, and death also, of another person, if
to the person by blood, adoption, or marriage the declarant was related to the other by blood,
or was so intimately associated with the person’s adoption, or marriage or was so intimately asso-
family that the declarant’s information is likely to ciated with the other’s family as to be likely to
be accurate. have accurate information concerning the matter
declared.
COMMENTARY
COMMENTARY
the out-of-court declarant from testifying, but that the State she made to her pastor were not barred by the clergy privilege
need not “identify the specific testimony from the absent because the pastor had testified that there were no rules, prac-
witness that the defendant wished to avoid.” Peterson, at ¶ 42. tices, precepts, or customs of his church that bound him with
Noting that, under IRE 104(a), hearsay evidence is admissible respect to the confidentiality of his counseling sessions.
at a forfeiture hearing, and that “the court is not bound by
Perkins, Krisik, and Zimmerman: Appellate Court’s Application of
the rules of evidence except those with respect to privilege” Peterson
(Peterson, at ¶ 44), the supreme court found that the evidence People v. Perkins, 2018 IL App (1st) 133981, provides an
established that defendant sought to prevent his third wife from application of the doctrine of forfeiture-by-wrongdoing. After
testifying “at least in part” on matters related to their divorce, first rejecting the application of the dying declaration and
such as child custody, child support, maintenance, and division excited utterance exceptions to the hearsay rule, the decision
of property, and that it did not matter that the defendant may provides a review of the supreme court decision in Peterson,
have had other motives for killing his wife. As for the missing applying the holding in that decision to the case at bar, and
fourth wife, the supreme court held valid the State’s contention concludes that three statements identifying the shooter, made
that the defendant sought to prevent her from reporting his by the victim who was shot in her face before her death,
criminal conduct to the police, holding that the existence of a qualified as exceptions to the hearsay rule under the forfei-
pending legal proceeding is not a requirement. In supporting ture-by-wrongdoing exception, despite the absence of pending
its conclusion that intentionally silencing a potential witness legal proceedings. Pointing out that the equitable doctrine of
justifies application of the forfeiture by wrongdoing rule, the forfeiture-by-wrongdoing extinguishes confrontation clause
court stated: claims, the appellate court held admissible the victim’s three
“Were we to hold otherwise, the equitable under- statements and rejected the defendant’s claim to sixth amend-
pinnings of the forfeiture by wrongdoing doctrine ment protection. Perkins, at ¶¶81-88.
would be undermined, and the doctrine’s very In People v. Krisik, 2018 IL App (1st) 161265, the defendant
purpose—to prevent a defendant from thwarting was convicted of aggravated battery, which for sentencing pur-
the judicial process by taking advantage of his own poses was merged with a conviction for aggravated domestic
wrongdoing (Reynolds [v. United States], 98 U.S. battery. The victim of the offense was the defendant’s girl friend,
[145], at 159 [1819]; [In re] Rolandis G., 232 Ill. who was the mother of his infant son. After the offense, the
2d [13] at 40 [(2008)]—would be defeated. Equity victim gave an assistant state’s attorney a typewritten statement,
demands that a defendant who silences a witness, which described the violence inflicted on her by the defendant.
or a potential witness, through threats, physical The State provided the trial court recorded evidence of the
violence, murder, or other wrongdoing should not defendant’s conversations with the victim and the defendant’s
be permitted to benefit from such conduct based mother wherein he sought to have the victim relocate to a differ-
solely on the fact that legal proceedings were not ent state or otherwise avoid the service of a subpoena for trial.
pending at the time of his wrongdoing.” Peterson, The victim was unable to be served with a subpoena and did
at ¶57. not appear for trial. The issue on appeal concerned the propriety
Finally, regarding the defendant’s contention that statements of the admission in evidence of the victim’s typed statement,
made by his missing fourth wife were privileged and thus with the defendant contending that the State failed to prove
should not have been admitted, the supreme court held that the the causation element of its forfeiture by wrongdoing claim.
statements she made to an attorney were not barred because Because the victim had testified at the preliminary hearing that
the attorney had informed her that he could not represent her, “she did not want to press felony charges against defendant
so there was no attorney-client privilege; and the statements because he is her son’s father and she was concerned about the
child not having his father around” (Krisik at ¶ 42), there was of forfeiture by wrongdoing applied, the only questions for the
some basis for the defendant’s contention that the victim chose trial court to consider was whether evidence was (1) relevant
to avoid service and to not attend court on her own initiative. and (2) otherwise admissible, which is what the trial court did
The appellate court rejected that argument, concluding that in admitting three of the victim’s statements while holding that
causation need not be established by direct evidence or testi- other statements offered by the State were unnecessary and
mony and may be established by inference from circumstantial of limited probative value—a proper application of Rule 403
evidence. Id. at ¶55. Based on the preponderance-of-evidence because the excluded statements had reduced probative value
requirement and the standard of review applicable to forfeiture for they start to become cumulative. Id. at ¶121.
by wrongdoing, the appellate court concluded that the trial Finally, the appellate court held that the victim’s “statements
court’s admission of the typed statement was not against the that she was afraid of defendant, without any further context,
manifest weight of the evidence. Id. at ¶57. amount to an opinion as to defendant’s character, opening the
In People v. Zimmerman, 2018 IL App (4th) 170695, an door to the possibility that the jury would convict defendant on
interlocutory appeal of the trial court’s rulings related to the an impermissible basis,” and were thus properly barred by the
doctrine of forfeiture by wrongdoing, the appellate court trial court. Id. at ¶124.
rejected numerous arguments made by the State. Initially, the
Conspiracy Theory Applied to Doctrine of Forfeiture by
court noted that in this case the application of the doctrine of Wrongdoing
forfeiture by wrongdoing was not at issue, the only issue being In People v. Davis, 2018 IL App (1st) 152413, ¶¶ 30-42, a
“the scope of the evidence admissible under the doctrine of witness to the offenses of murder and attempted murder testified
forfeiture by wrongdoing and the trial court’s role in determin- before the grand jury, providing incriminatory evidence against
ing that scope.” Zimmerman, at ¶ 99. The court first rejected the two defendants. Afterwards, the witness was murdered by
the State’s contention that the trial court erred in barring state- two men who were later convicted of that offense. Although
ments made to witnesses by the victim before the victim was it was clear that the defendants had not personally killed the
murdered, a contention based on the trial court’s insistence, witness who had given grand jury testimony implicating them
during the hearing to bar statements, that witnesses relate to in the earlier offenses, the grand jury testimony of the deceased
the best of their ability specific statements made by the victim, witness was admitted under the doctrine of forfeiture by wrong-
rather than providing conclusions, opinions, or speculation. doing. The issue confronting the appellate court was whether
The appellate court ruled that the State’s contention was not the doctrine could be invoked based on a conspiracy theory of
borne out by the record, which established that the trial court liability as set forth in Pinkerton v. U.S., 328 U.S. 640 (1946).
did not unduly limit or restrict testimony by any witness during Citing decisions of federal circuit courts of appeal and
the hearing on the motion to suppress statements, despite its relying on the evidence—including even hearsay evidence as
understandable preference for specific statements. allowed by IRE 104(a)—the appellate court held that the trial
Arguing that IRE 804(b)(5) does not limit the subject matter court’s finding that the defendants intended to, and did procure
of the statements that may be admissible under the doctrine of the unavailability of the witness was not against the manifest
forfeiture by wrongdoing, the State contended also that the trial weight of the evidence. The court held that there was evidence
court had erred in limiting the admissible evidence to statements to support finding that the defendants and the killers of the
that “are evidence of defendant’s specific intent to prevent the witness were in a conspiracy to kill the witness, and that the
victim from being a witness.” Id. at ¶108. Acknowledging that killing of the witness was undertaken with the purpose of caus-
the State was correct on the legal issue of the rule not limiting ing the witness’s unavailability as a witness. Pointing out that
the subject matter of the victim’s statements, the appellate the misconduct of one conspirator may be imputed to another
court held that, once the trial court decided that the doctrine conspirator if the misconduct was within the scope and in
furtherance of the conspiracy, and was reasonably foreseeable the equitable considerations at the center of the doctrine,”
to him, the court concluded that “there is evidence defendants’ and because of the party’s right to challenge the credibility of
co-conspirator killed [the witness] because of his cooperation the witness who offers testimony about the statement through
with police and that intent can be imputed to them.” Davis, at cross-examination).
¶42. Repealed Statutes
United States Supreme Court Decisions: No Confrontation Clause Note that, because they were decided before the Illinois
Bar and Intent to Prevent Witness from Testifying a Necessary
Factor evidence rules were codified, Stechly and Hanson considered
In Davis v. Washington, 547 U.S. 813, 833 (2006), the application of this hearsay exception based on a statute that was
United States Supreme Court noted that the federal rule codi- repealed by Public Act 99-243, effective August 3, 2015. That
fied the common-law forfeiture doctrine as a hearsay exception statute was section 115-10.6 of the Code of Criminal Procedure
that does not violate the confrontation clause; and in Giles v. of 1963 (725 ILCS 5/115-10.6). The statute made admissible
California, 554 U.S. 353, 374 (2008), citing Davis, the Court the statements of a declarant who was killed by the defendant
stated: “The common-law forfeiture rule was aimed at removing to prevent the declarant from testifying in a criminal or civil
the otherwise powerful incentive for defendants to intimidate, case. It was substantially identical to IRE 804(b)(5), except for
bribe, and kill the witnesses against them—in other words, it is its murder requirement and its requirement—in section 115-
grounded in ‘the ability of courts to protect the integrity of their 10.6(e)(2)—for reliability of the statement. As noted above,
proceedings.’” Giles limited the doctrine’s application to cases Hanson held that reliability is not an element for admissibility
where there is evidence of the defendant’s intent to prevent the of a statement under the doctrine of forfeiture by wrongdoing.
witness from testifying, holding that it did not automatically And, as also noted above, that principle is the focus of the
apply where the offense is murder. Peterson decision. Thus, the repeal of section 115-10.6 means
Stechly and Hanson: Pre-Codification Illinois Decisions that IRE 804(b)(5) alone will be applied in all current and future
For an early pre-codification and a pre-Giles Illinois Supreme cases involving forfeiture by wrongdoing—ending the confu-
Court decision on forfeiture by wrongdoing, one that provides sion related to having a statute and a rule addressing the same
a thorough analysis of the common-law rule and its application subject, with one of them (the statute) containing an extra (and,
in Illinois, see People v. Stechly, 225 Ill. 2d 246 (2007) (holding as illustrated by the cases, an unnecessary) provision.
that, based on prior U.S. Supreme Court decisions and the Note, too, that Public Act 99-423 also repealed what was
specific wording of FRE 804(b)(6), which codified the com- section 115-10.7 of the Code of Criminal Procedure (725 ILCS
mon-law equitable doctrine of forfeiture by wrongdoing and is 5/115-10.7). That statute made admissible the statements of
the counterpart to the Illinois rule, the common law required any unavailable witness whose absence was wrongfully pro-
proof of an intent to prevent the witness from testifying, proof cured. The repeal was appropriate because it was unnecessary
that is established by a preponderance of the evidence). See to have two statutes applying the same principles to similar
also People v. Hanson, 238 Ill. 2d 74, 97-99 (2010) (expressly factual scenarios, when a single rule would suffice. IRE 804(b)
recognizing that the doctrine of forfeiture by wrongdoing (5) alone suffices for all cases involving forfeiture by wrongdo-
serves as an exception to the hearsay rule; also holding that ing—whether by murder or by any other means. Because both
the doctrine applies to both testimonial and nontestimonial statutes provided pre-codification application of the hearsay
statements, thus extinguishing confrontation clause claims; exception for forfeiture by wrongdoing, they are provided in
and further holding that the reliability of the statement is not the appendix at Appendix N.
relevant in determining admissibility, because such a require- People v. Nixon and People v. Coleman
ment is inconsistent with the party’s having forfeited the right In People v. Nixon, 2016 IL App (2d) 130514, the appellate
to examine the absent declarant and would thus “undermine court affirmed the circuit court’s admission of the victim’s
written statement to police about the defendant’s actions. The Seventh Circuit Decisions Applying the Rule
court held that the absence of the victim from the trial had For a Seventh Circuit opinion applying FRE 804(b)(6) (the
adequately established forfeiture by wrongdoing based on the federal counterpart to IRE 804(b)(5)), see U.S. v. Jonassen, 759
victim’s fear of the defendant and evidence of the defendant’s F.3d 653 (7th Cir. 2014). In Jonassen, where the defendant was
“friendly inducement” efforts. convicted of kidnapping his 21-year-old daughter and obstruc-
In People v. Coleman, 2014 IL App (5th) 110274, ¶¶ 130- tion of justice, the daughter, who had given pretrial statements
39, where the defendant was convicted of murdering his wife to the FBI, testified at trial, but responded to questions with
and his two sons, the appellate court approved the testimony answers that were the equivalent of having no memory of the
of five witnesses who testified about statements made to them underlying facts. Based on substantial evidence that the defen-
by the wife/victim about her concern that the defendant wished dant had made numerous efforts at convincing his daughter
to divorce her because she and their sons were ruining his life. not to testify against him, efforts that the court concluded were
There also was evidence that the defendant had made plans to successful, the Seventh Circuit held that the daughter was
divorce his wife, and that there was the possibility of his losing unavailable under Rule 804(a), and her pretrial statements to
his job with a religious organization if he did so. Although the the FBI were therefore properly admitted.
appellate court did not cite IRE 804(b)(5), it cited the relevant For an example of a Seventh Circuit decision that applied the
statute (section 115-10.6 of the Code of Criminal Procedure holding in Giles v. California, 554 U.S. 353 (2008) (holding the
of 1963 before its repeal effective on August 3, 2015), as well forfeiture by wrongdoing exception to the hearsay rule applies
as the counterpart federal rule of evidence and common law, only where the reason for the defendant’s wrongdoing is to
to conclude that, under the statute and the common law, the prevent the declarant from testifying), see Jensen v. Clements,
admission of the statements related to the witnesses by the 800 F.3d 892 (7th Cir. 2015), where in the context of the review
deceased wife established a motive for the defendant’s com- of a mandamus ruling, the court held that, in the prosecution
mitting the murders, and that the forfeiture-by-wrongdoing of the defendant for murder, in the absence of evidence that
exception to the hearsay rule justified the admission of the the defendant killed his wife to prevent her from testifying, it
statements, even though there had not yet been a divorce filing. was error—and not harmless error—to admit a letter and other
accusatory statements made by the defendant’s wife prior to
her death.
Rule 805. Hearsay Within Hearsay Rule 805. Hearsay Within Hearsay
Hearsay within hearsay is not excluded by the rule Hearsay included within hearsay is not excluded
against hearsay if each part of the combined statements under the hearsay rule if each part of the combined
conforms with an exception to the rule. statements conforms with an exception to the hearsay
rule provided in these rules.
COMMENTARY
Rule 806. Attacking and Supporting the Declarant’s Rule 806. Attacking and Supporting Credibility of
Credibility Declarant
When a hearsay statement—or a statement described When a hearsay statement, or a statement defined
in Rule 801(d)(2)(C), (D), or (E)—has been admitted in Rule 801(d)(2)(C), (D), (E), or (F), has been
in evidence, the declarant’s credibility may be attacked, admitted in evidence, the credibility of the declarant
and then supported, by any evidence that would be may be attacked, and if attacked may be supported,
admissible for those purposes if the declarant had testi- by any evidence which would be admissible for those
fied as a witness. The court may admit evidence of the purposes if declarant had testified as a witness. Evidence
declarant’s inconsistent statement or conduct, regard- of a statement or conduct by the declarant at any time,
less of when it occurred or whether the declarant had an inconsistent with the declarant’s hearsay statement, is
opportunity to explain or deny it. If the party against not subject to any requirement that the declarant may
whom the statement was admitted calls the declarant as have been afforded an opportunity to deny or explain.
a witness, the party may examine the declarant on the If the party against whom a hearsay statement has been
statement as if on cross-examination. admitted calls the declarant as a witness, the party is
entitled to examine the declarant on the statement as if
under cross-examination.
COMMENTARY
satisfied the requirements of IRE 901 by authenticating the of Criminal Procedure of 1963, because the defendants had
affidavit through the testimony of the notary. As part of its “never sought admission of the affidavit as substantive evidence
analysis, the court noted that, even before the codification of under these statutory provisions.” Id. at ¶ 55. Pointing out
Illinois’ evidence rules, the appellate court in People v. Smith, that the defendants sought admission of the affidavit only for
127 Ill. App. 3d 622, 630 (1984) had “recognized that, where impeachment purposes, consistent with the provisions of IRE
a statement of an absent declarant is properly admitted into 806, and noting that error in denying admission of the affidavit
evidence under a hearsay exception, ‘the opposing party may was not harmless because of the importance of the testimony
impeach such statement with a prior inconsistent statement by of the witness, the appellate court reversed the convictions and
the declarant.’” Id. at ¶ 46. The appellate court rejected the remanded the case for retrial, during which the affidavit may be
State’s argument that the defendants had failed to satisfy the admitted as a prior inconsistent statement.
requirements of section 115-10.1 and 115-10.2 of the Code
COMMENTARY
the declarant’s name and address, so that the party consideration of corroborating evidence, though
has a fair opportunity to meet it. some courts have disagreed. The rule now provides
Note that the current amended rule deletes two of the four for a uniform approach, and recognizes that the
pre-amended conditions for admissibility. The deleted subdi- existence or absence of corroboration is relevant
visions are (a)(2), related to “evidence of a material fact,” and to, but not dispositive of, whether a statement
(a)(4), related to serving “the purpose of these rules and the is accurate. Of course, the court must not only
interests of justice.” The amended rule retains subdivision (a) consider the existence of corroborating evidence
(1), related to the requirement of trustworthiness, but it deletes but also the strength and quality of that evidence.
the equivalence standard and explains how “sufficient guaran- The change to the trustworthiness clause does not
tees of trustworthiness” are determined. The amended rule also at all mean that parties may proceed directly to the
retains as subdivision (a)(2) what was (a)(3) in the pre-amended residual exception, without considering admis-
rule, and does so without any alteration. sibility of the hearsay under Rules 803 and 804.
Providing a portion of the note on the amendment of Rule Indeed Rule 807(a)(1) now requires the proponent
807 by the federal Advisory Committee on Rules of Evidence to show that the proffered hearsay is a statement
best explains the purposes of the amended rule and the reasons that “is not specifically covered by a hearsay
for its amendment: exception in Rule 803 or 804.” Thus Rule 807
Courts have had difficulty with the requirement remains an exception to be invoked only when
that the proffered hearsay carry “equivalent” necessary.
circumstantial guarantees of trustworthiness. The In deciding whether the statement is supported by
“equivalence” standard is difficult to apply, given sufficient guarantees of trustworthiness, the court
the different types of guarantees of reliability, of should not consider the credibility of any witness
varying strength, found among the categorical who relates the declarant’s hearsay statement in
exceptions (as well as the fact that some hearsay court. The credibility of an in-court witness does
exceptions, e.g., Rule 804(b)(6), are not based not present a hearsay question. To base admis-
on reliability at all). The “equivalence” standard” sion or exclusion of a hearsay statement on the
has not served to limit a court’s discretion to witness’s credibility would usurp the jury’s role of
admit hearsay, because the court is free to choose determining the credibility of testifying witnesses.
among a spectrum of exceptions for comparison. The rule provides that the focus for trustworthiness
Moreover, experience has shown that some is on circumstantial guarantees surrounding the
statements offered as residual hearsay cannot making of the statement itself, as well as any inde-
be compared usefully to any of the categorical pendent evidence corroborating the statement.
exceptions and yet might well be trustworthy. The credibility of the witness relating the statement
Thus the requirement of an equivalence analysis is not a part of either enquiry.
has been eliminated. Under the amendment, the The Committee decided to retain the requirement
court is to proceed directly to a determination of that the proponent must show that the hearsay
whether the hearsay is supported by guarantees of statement is more probative than any other evi-
trustworthiness. dence that the proponent can reasonably obtain.
The amendment specifically requires the court to This necessity requirement will continue to serve
consider corroborating evidence in the trustwor- to prevent the residual exception from being used
thiness enquiry. Most courts have required the as a device to erode the categorical exceptions.
The requirements that residual hearsay must be In United States v. Wehrle, 985 F.3d 549 (7th Cir. 2021),
evidence of a material fact and that its admission the Seventh Circuit applied the five elements required by
will best serve the purposes of these rules and FRE 807 before its 2019 amendment. Pointing out that trade
the interests of justice have been deleted. These inscriptions—such as “Made in China” and “Product of China”
requirements have proved to be superfluous in that affixed to such items as cameras, flash cards, and hard drives—
they are already found in other rules (see, Rules “are self‐authenticating, meaning they ‘require no extrinsic
102, 401). evidence of authenticity in order to be admitted’” (Wehrle,
Seventh Circuit’s Handling of Pre-Amended FRE 807 at 556, citing FRE 902), the Seventh Circuit held that such
In United States v. Moore, 824 F.3d 620 (7th Cir. 2016), the inscriptions “exhibit a high level of trustworthiness, satisfying
Seventh Circuit noted that “[a] proponent of hearsay evidence Rule 807.” Id. In rejecting the defendant’s argument based on
must establish five elements in order to satisfy [Federal] Rule the confrontation clause, the court held that the inscriptions are
[of Evidence] 807: ‘(1) circumstantial guarantees of trustwor- nontestimonial because “[t]he inscriptions denoting an item’s
thiness; (2) materiality; (3) probative value; (4) the interests foreign origin are not created in preparation for a future judicial
of justice; and (5) notice.’” The court also noted that it had proceeding. Rather, they are created to comply with federal
previously warned against the liberal and frequent utilization regulations requiring labels of place of origin for imported
of FRE 807 “lest the residual exception become the exception products.” Id.
that swallows the hearsay rule.” In Moore, which involved a The Takeaway
probation officer’s notes concerning a deceased person and As the amended rule and the Advisory Committee’s note
the probation records of the deceased person’s phone num- make clear, two of the five requirements provided by Moore for
bers—phone numbers frequently called by the defendant, who Rule 807 application no longer exist. Although federal judges
claimed he was not close to the deceased person—the Seventh can be expected to exercise appropriate discretion in applying
Circuit held that the exception was particularly apt. Moore also the rule, so that the residual exception does not swallow the
cites to other Seventh Circuit Court decisions that admitted rule, there is no question that its amendment makes its appli-
hearsay statements under FRE 807. cation less difficult.
Author’s Commentary on Non‑Adoption of Fed. R. Evid. 807; Illinois Statutory Residual Hearsay Exceptions; Application of
Crawford’s “Testimonial Hearsay” in Criminal Cases
The Illinois Supreme Court “has specifically declined to is unavailable. The admissibility of some of these statements
adopt this [predecessor to FRE 807’s residual] exception” to is open to question, however, because of the United States
the hearsay rule. People v. Olinger, 176 Ill. 2d 326, 359 (1997). Supreme Court decision in Crawford v. Washington, 541 U.S.
Illinois, however, provides a number of statutory hearsay 36 (2004). In Crawford, the Supreme Court repudiated the
exceptions, which may be referred to as “residual exceptions,” “indicia of reliability” standard set forth in Ohio v. Roberts, 448
for certain available and unavailable witnesses in both criminal U.S. 56 (1980), which had held that hearsay statements were
and civil cases. So, although Illinois has not codified FRE 807, admissible where indicia of reliability were present if the evi-
it has created a number of reliability-based residual exceptions dence fell within a firmly rooted hearsay exception or bore par-
to the hearsay rule through statutory enactments. ticularized guarantees of trustworthiness. Crawford held that,
Crawford v. Washington rather than the indicia of reliability test, the Sixth Amendment
A number of Illinois criminal statutes provide for the admis- confrontation clause prohibits admission of “testimonial” state-
sibility of hearsay statements where the out-of-court declarant ments when the out-of-court declarant does not testify or the
defendant did not have an opportunity to cross-examine the Note, also, that section 115-10(c) requires a jury instruction
unavailable declarant in a prior proceeding. Further discussion (provided by IPI Criminal 4th No. 11.66) when a statement is
of Crawford and its progeny is provided infra. admitted under this section. See People v. Mitchell, 155 Ill. 2d
344, 353-54 (1993) (holding that failure to give the instruction,
Illinois Statutes that Allow Residual Hearsay Exceptions in
Criminal Cases combined with the error in the trial court’s not determining
Numerous Illinois statutes allow the admission of what reliability of the statements, “together with the serious con-
would normally be hearsay statements but, depending on the tradictions in the testimony of [the victim],” resulted in plain
statutory language, are referred to as either not hearsay or an error). But see also People v. Jackson, 2015 IL App (3d) 140300,
exception to the hearsay rule. Most of the statutes are in the ¶¶ 50-57, where the defendant had not objected to the trial
Code of Criminal Procedure of 1963. They include: court’s failure to give the required instruction, the appellate
• Section 115-10 (725 ILCS 5/115-10; provided at court cited People v. Sargent, 239 Ill. 2d 166, (2010), in holding
Appendix U and addressed, infra, under the three that, because the defendant had not contended that review
separate headings of People v. Cookson, People was required under the first prong of the plain error test and
v. Kitch, and Other Decisions Applying Section review was not warranted under the second prong of that test,
115-10), where a child under the age of 13 or a the failure to give the required cautioning instruction did not
person who is mentally retarded is the victim of constitute error.
the types of physical or sexual acts enumerated in • Section 115-10.2 (725 ILCS 5/115-10.2; provided
the statute. at Appendix O), where a witness refuses to testify
Section 115-10 has two subdivisions that merit special despite a court order to do so and the prior state-
attention. Section 115-10(a)(1) allows, as an exception to the ments were made under oath and were subject to
hearsay rule, “testimony by the victim of an out of court state- cross-examination by the opposing party in a prior
ment made by the victim that he or she complained of such trial, hearing, or other proceeding.
act to another.” This section creates a hearsay exception when • Section 115-10.2a (725 ILCS 5/115-10.2a;
the victim testifies to what he or she previously said about the provided at Appendix P), where a declarant is
act. It fully accommodates Crawford’s requirements, because deemed to be unavailable to testify in a domestic
the declarant/victim testifies about his or her own out-of-court violence prosecution. For a relevant decision on
statements and is subject to cross-examination about them. this statute, see People v. Burnett, 2015 IL App (1st)
Section 115-10(a)(2), on the other hand, provides for a 133610 (holding that the victim of the defendant’s
hearsay exception for “testimony of an out of court statement violation of an order of protection was unavailable
made by the victim describing any complaint of such act or as a witness under the statute because she refused
matter or offense which is the subject of a prosecution for a to answer some questions, thus satisfying the
sexual or physical act against that victim.” This section antici- statute’s requirement for a hearsay exception, and
pates testimony from someone other than the victim—someone further holding that the victim was available under
who was told about the act by the victim or who heard the Crawford because she answered both preliminary
victim’s statement. It creates a hearsay exception where the questions as well as questions about the offense,
victim does not testify—provided that, as required by section thus satisfying sixth amendment confrontation
115-10(b)(2)(B), the victim “is unavailable as a witness and clause requirements). For another relevant deci-
there is corroborating evidence of the act which is the subject sion, see People v. Busch, 2020 IL App (2d) 180229
of the statement.” (reasoning that the requirements of the statute were
satisfied, but noting that the statutory requirement
not required because all three had testified at the adjudicatory and Trinidad C. v. Augustin L., 2017 IL App (1st) 171148, as
hearing and the trial court’s determination of abuse and neglect decisions that applied the Code of Civil Procedure. Agreeing
was not against the manifest weight of the evidence. with the reasoning in Flannery, the court held that the Code of
In In re Natalia O., 2019 IL App (2d) 181014, the appellate Civil Procedure’s section 8-2601 is the applicable statute. Id.
court applied In re A.P. and In re An. W. in holding that prior at ¶ 22. Noting that section 8-2601 is the civil counterpart to
statements by the respondent’s daughter concerning sexual section 115-10 of the Code of Criminal Procedure of 1963 (725
abuse, which she later recanted through her testimony at trial, ILCS 5/115-10; see Appendix U) and that like the criminal stat-
were properly admitted in evidence and could serve as the ute it applies in both bench and jury trials, the court remanded
basis for the trial court’s findings of abuse and neglect without the case to the circuit court because the three minor children
the need for corroboration. whose out-of-court testimony had been admitted were old
Section 8-2701 of the Code of Civil Procedure (735 ILCS enough to testify in court, but the trial court had not complied
5/8-2701; provided at Appendix S) has provisions involving an with section 8-2601’s requirement to determine whether they
unavailable elder adult, which are similar to those in section were unavailable to testify.
115-10.3 of the Code of Criminal Procedure (provided at Regarding Discharge Hearings, see People v. Waid, 221 Ill.
Appendix Q). Consistent with statutes that apply to civil cases, 2d 464 (2006) (holding that a discharge hearing under sections
the statute is unaffected by Crawford, because Crawford is 104-23 and 104-25 of the Code of Criminal Procedure (725
limited to an accused’s constitutional right to confrontation, ILCS 5/104-23, 104-25) is civil in nature, and thus “section
and does not address evidentiary rules related to hearsay. 104-25(a), which allows the admission of hearsay or affidavit
Section 8-2601 of the Code of Civil Procedure (735 ILCS evidence at a discharge hearing, does not violate the confron-
5/8-2601; provided at Appendix T) has provisions similar to tation clause,” nor does it violate the due process clause). Two
section 115-10 of the Code of Criminal Procedure (provided at relevant appellate court cases are People v. Orengo, 2012 IL
Appendix U) that are applicable to a child under the age of 13. App (1st) 111071 (allowing admission in discharge hearing
That statute is unaffected by the Crawford decision because, of outcry statements about criminal sexual misconduct made
like section 8-2701 of the Code of Civil Procedure, it applies to two persons by the three-year-old victim), and People v.
only to civil proceedings. Lewis, 2021 IL App (3d) 180259 (applying Waid and Orengo,
Regarding Order of Protection cases, in Arika M. v. in allowing admission in discharge hearing of the deposition of
Christopher M., 2019 IL App (4th) 190125, the appellate court an elderly witness with health problems).
pointed out that “the different districts of the Illinois Appellate Significance of These Statutes
Court disagree on the statute that governs the admissibility of The statutes that provide hearsay exclusions or exceptions,
a child’s out-of-court statements regarding abuse in order of not otherwise provided by the codified evidence rules, represent
protection cases when the alleged abuser is a parent.” Id. at the legislature’s valid exercise of its ability to create evidence
¶ 15. The court reasoned that the two possible statutes related rules. Such rules are subject to codification and amendment.
to such cases are section 606.5(c) of the Illinois Marriage and See People v. Dabbs, 239 Ill. 2d 277, 293 (2010) (holding that
Dissolution Act (750 ILCS 5/606.5(c)) and section 8-2601 of the “propensity rule” in Rule 404(b) is of common law origin
the Code of Civil Procedure (735 ILCS 5/8-2601). Id. It cited and not of constitutional magnitude, and therefore subject to
Daria W. v. Bradley W., 317 Ill. App. 3d 194 (3d Dist. 2000); revision).
Countryman v. Racy, 2017 IL App (3d) 160379; and In re In civil cases, except for substantive due process consid-
Marriage of Gilbert, 355 Ill. App. 3d 104 (1st Dist. 2004) as erations, there is no constitutional bar to creating exclusions
decisions that applied the Dissolution Act in such cases; and In or exceptions to the hearsay rule by statute, because the con-
re Marriage of Flannery, 328 Ill. App. 3d 602 (2d Dist. 2002), frontation clause does not apply to such cases and because the
legislature can create and amend evidence rules. In criminal rules of evidence related to hearsay), unless the out-of-court
cases, however, the confrontation clause does apply, and out- declarant is present or the defendant had an opportunity to
of-court statements deemed to be “testimonial” are barred cross-examine the unavailable declarant in a prior proceeding.
under Crawford. In Crawford, the prosecutor introduced a recorded statement
The significance of the statutes that provide exclusions or that the defendant’s wife had made during police interrogation,
exceptions to the hearsay rule in criminal cases is that they as evidence that the defendant’s stabbing was not in self-de-
may provide a legitimate basis for the admission of out-of-court fense in an assault and attempted murder prosecution. But the
statements—because they eliminate the hearsay bar—as long defendant’s wife did not testify at trial because of the State of
as they satisfy the requirements of the confrontation clause. For Washington’s marital privilege. Following a thorough review of
example, when a witness, consistent with a statute that allows the confrontation clause and the evils it was designed to pre-
the substantive admission of hearsay under a hearsay exception vent, the U.S. Supreme Court held that, for reasons referenced
or exclusion, gives testimony reciting her own prior statements above, the statements were testimonial hearsay and improperly
that are consistent with her testimony at the proceeding, an admitted in violation of that clause.
objection that prior consistent statements are barred by the Davis v. Washington; Hammon v. Indiana
hearsay rule should fail, because the out-of-court declarant is After Crawford, in separate but consolidated cases, the
the witness who is subject to cross-examination on her out-of- U.S. Supreme Court decided cases that provided examples
court statements, thus satisfying one of Crawford’s exceptions of both testimonial and nontestimonial statements. In Davis
for the prohibition related to “testimonial statements.” For a v. Washington, 547 U.S. 813 (2006), the Court held that the
close but not identical analogy, see People v. Applewhite, 2016 declarant’s statements in a 911 call (in which she described
IL App (4th) 140588 (holding that section 115-10 of the Code the defendant’s contemporaneous violence) were nontestimo-
of Criminal Procedure creates an exception to IRE 613(c)’s nial—as descriptive of an ongoing emergency and not solely of
prohibition of the substantive application of prior consistent past events—and thus admissible, despite the absence of the
statements). declarant (defendant’s former girlfriend) at the trial.
In sum, in criminal cases, these statutes, which might be In contrast, in a companion case decided along with Davis
referred to as residual exceptions to the hearsay rule, eliminate (Hammon v. Indiana), the defendant’s wife, while separated
the hearsay obstacle, but they still require adherence to the from her husband in a separate room of their home, informed
confrontation clause. police of the domestic abuse she had just suffered at his hands.
Crawford and Its Progeny This was deemed not to have satisfied the “ongoing emergency”
If the statements in the criminal statutes listed supra are exception, but merely a narrative about past events, and thus
deemed to be “testimonial statements” (a term not fully defined constituted testimonial hearsay that was not admissible when
in Crawford, but one that certainly refers to statements made the wife did not appear at her husband’s trial.
in response to police interrogation or police questioning “to From the holdings in Davis/Hammon, the Supreme Court
establish or prove past events potentially relevant to later articulated these general principles:
criminal prosecution” (see Davis v. Washington, 547 U.S. 813, “Statements are nontestimonial when made in the
822 (2006)), and, in the words of Crawford, 541 U.S. at 68, course of police interrogation under circumstances
“to prior testimony at a preliminary hearing, before a grand objectively indicating that the primary purpose of
jury, or at a former trial”), the Crawford decision renders the the interrogation is to enable police assistance to
hearsay statements of each of the non-testifying declarants in meet an ongoing emergency. Bur they are testimo-
each of the statutes inadmissible, pursuant to the constitutional nial when the circumstances objectively indicate
protection afforded by the confrontation clause (not by the that there is no such ongoing emergency, and
that the primary purpose of the interrogation is to an out-of-court substitute for trial testimony). In holding that the
establish or prove past events potentially relevant victim’s out-of-court statements were properly admitted, the
to later criminal prosecution.” Davis, 547 U.S. at Court held that the fact that the victim did not testify because
822. he was found incompetent to do so, or that the teachers who
Michigan v. Bryant questioned him may have been subject to mandatory reporting
Later, in Michigan v. Bryant, 562 U.S. 344 (2011), the Court requirements, did not affect the admissibility of the statements.
applied the “ongoing emergency” doctrine in a case where Two statements of the Court about out-of-court statements
police questioned the mortally wounded victim, who had been are noteworthy, and may be harbingers of later decisions:
shot and was found in a gas station parking lot. The victim’s “Statements by very young children will rarely, if ever, impli-
statements, which included naming the defendant, in response cate the Confrontation Clause” (id. at 247-48), and “Statements
to police questioning about who shot him and where and how made to someone who is not principally charged with uncov-
it happened, were deemed to be nontestimonial because they ering and prosecuting criminal behavior are significantly less
had the “primary purpose” of enabling police to meet an ongo- likely to be testimonial than statements given to law enforce-
ing emergency caused by the potential danger to the victim, to ment officers.” Id. at 249.
the police, and to others because of the violence inflicted by an
Seventh Circuit Analysis of Evolution of “Testimonial Statements”
unapprehended person with a gun. Since Crawford
For a recent Seventh Circuit decision applying the ongoing The U.S. Supreme Court has not provided a definitive
emergency doctrine in affirming the denial of habeas corpus definition of when “testimonial statements” are considered
from an Illinois Appellate Court decision, see Damon Goodloe violative of the defendant’s right to confrontation. But its deci-
v. Brannon, 4 F.4th 445 (7th Cir. 2021), where the shooting sions—those provided supra and infra—have provided some
victim who later died at the hospital told police that Damon answers. For an insightful Seventh Circuit decision tracking
had shot him and later identified the defendant as the shooter the Court’s evolution in answering that important question, see
when the defendant was brought to him while he was in an United States v. Norwood, 982 F.3d 1032 (7th Cir. 2020), at
ambulance. 1042-1051.
Ohio v. Clark “Testimonial” Statements Related to Police Questioning
In Ohio v. Clark, 576 U.S. 237, 135 S. Ct. 2173 (2015), Davis (fortified by Bryant and Clark), provides insight as
another U.S. Supreme Court discussion of “testimonial to when statements made to police officers are testimonial or
hearsay,” statements of the three-year-old victim to preschool nontestimonial. The quote from Davis deserves repetition:
teachers that the defendant was responsible for his bruises “Statements are nontestimonial when made in the
were held not to have violated the confrontation clause and course of police interrogation under circumstances
to be admissible. Stating that “the primary purpose test is a objectively indicating that the primary purpose of
necessary, but not always sufficient, condition for the exclusion the interrogation is to enable police assistance to
of out-of-court statements under the Confrontation Clause” meet an ongoing emergency. They are testimonial
(id. at 576 U.S. at 246), while declining “to adopt a rule that when the circumstances objectively indicate that
statements to individuals who are not law enforcement officers there is no such ongoing emergency, and that the
are categorically outside the Sixth Amendment” (id.), the Court primary purpose of the interrogation is to establish
held that the “primary purpose” of the conversation (i.e., the or prove past events potentially relevant to later
purpose of the interrogator and that of the out-of-court declar- criminal prosecution.” Davis, 547 U.S. at 822.
ant) were not primarily intended to be “testimonial” (i.e., the Consistent with this statement from Davis is the appellate
statements were not given with the primary purpose of creating court decision in People v. Dobbey, 2011 IL App (1st) 091518
(holding that statements identifying the shooter, made to a ers” pursuant to statute, were testimonial and were therefore
witness by the deceased victim shortly after the victim had improperly admitted into evidence.
been shot in the chest, were nontestimonial and thus not In re Rolandis G.
subject either to the Crawford analysis or exclusion under the In In re Rolandis G., 232 Ill. 2d 13 (2008), a juvenile defen-
confrontation clause). dant was adjudicated a delinquent based on an aggravated
For a discussion of the Crawford-related U.S. Supreme criminal sexual assault offense on a six-year-old boy. When
Court’s decisions in Melendez-Diaz and Bullcoming, and the asked at trial about the events that occurred on the day in ques-
Illinois Supreme Court’s decision in People v. Leach, 2012 IL tion, the boy “resolutely refused to respond,” and the trial court
111534, see the Author’s Commentary on Ill. R. Evid. 803(8); found him unavailable as a witness. Pursuant to section 115-10
and for a discussion of the U.S. Supreme Court’s decision in of the Code of Criminal Procedure (see Appendix U), the trial
Williams v. Illinois, see the Author’s Commentary on Ill. R. Evid. court allowed into evidence statements the boy had made to his
703. For summaries of other relevant cases, see the discussions mother and later to a police officer, and a videotaped interview
immediately following and those at the end of this Commentary. with a child advocate, in which a police detective was present.
People v. Stechly On appeal, the appellate court ruled that the statement to the
In People v. Stechly, 225 Ill. 2d 246 (2007), the Illinois mother was nontestimonial, but that the other two statements
Supreme Court endeavored to determine what constituted a had been improperly introduced because they were testimo-
“testimonial statement” under Crawford’s confrontation-clause nial. On review by the supreme court, the State accepted the
analysis. The court concluded that such a statement has two appellate court’s rulings regarding the nontestimonial nature
components: (1) solemnity—the statement “must be made of the statement to the mother and the testimonial nature of
in solemn fashion,” and (2) “the statement must be intended the statement to the police officer. The primary issue before
to establish a particular fact” about events that previously the supreme court, then, concerned the nature of the video-
occurred. The court concluded that statements produced by taped statement. Applying the standards provided in Stechly,
police interrogation about past events and statements made by the supreme court held that the boy’s videotaped statements
persons without police interrogation, but with the intent of hav- during the interview conducted by the child advocate that was
ing them used in prosecution, qualify as testimonial. In deter- witnessed by the police detective was testimonial and therefore
mining the component involving the intent of the declarant, improperly admitted. Nevertheless, based on the overwhelm-
the court held that a person’s age and extent of understanding ing evidence of the defendant’s guilt, the court found that the
should be “among the circumstances potentially relevant to error was harmless beyond a reasonable doubt.
evaluating whether the objective circumstances of the state- In re Brandon P.
ment would have led a reasonable declarant to understand that In In re Brandon P., 2014 IL 116653, the supreme court
his or her statement could be used in a subsequent prosecution applied In re Rolandis G. in holding that out-of-court statements
of the defendant.” In applying those considerations to the case by a three-year-old were improperly admitted under section
at bar—involving sexual offenses on a five-year-old girl who 115-10 (see Appendix U), after reasoning that the three-year-
was determined to be unavailable as a witness for trial because old was unavailable to testify because of her youth and her
of the risk of trauma to her—the court held that (1) the girl’s fear, and noting that she “could barely answer the trial court’s
statements to her mother were admissible as nontestimonial preliminary questions, and then completely froze when the
and in compliance with the requirements of section 115-10 State attempted to begin its direct examination of her.” Brandon
of the Code of Criminal Procedure (the statute is at Appendix P., at ¶47. As in In re Rolandis G., supreme the court held that,
U in this guide); and (2) the girl’s statements given after those because of the other evidence of the defendant’s guilt, the error
to her mother to two persons described as “mandated report- was harmless beyond a reasonable doubt.
of sexual offenses testified at trial, the Illinois Supreme Court who had interviewed her; and a videotaped police interview in
upheld the statute in response to the defendant’s contentions which she described the sex act and the two previous similar
premised on Crawford, and also approved the admission of acts was played for the jury.
the victim’s out-of-court statements about the offenses made to In approving the admission of this evidence, the appellate
others, including to a DCFS investigator, police officers, and a court first rejected the defendant’s contention that section 115-
foster parent. 10, in allowing the admission of prior consistent statements of
People v. Kitch witnesses, conflicts with IRE 613(c) which denies substantive
On the other hand, section 115-10(b)(2)(B) (see Appendix admission of such statements. The court held that section 115-
U) allows (in the prefatory language of section 115-10(a)(2)) 10 specifically provides for a hearsay exception and is thus an
“testimony of an out of court statement made by the victim exception to that rule. The court then rejected the defendant’s
describing any complaint of such act or matter or detail per- contention that the evidence admitted was unnecessarily
taining to any act which is an element of an offense which cumulative, specifically rejecting “any notion that current
is the subject of the prosecution,” when the victim (in the Illinois jurisprudence requires section 115-10 to be narrowly
language of section 115-10(b)(2)(B)) “is unavailable as a construed.” Applewhite, at ¶73. Noting that the trial court had
witness and there is corroborative evidence of the act which complied with the statute’s requirement to conduct a hearing
is the subject of the statement,” and (under section 115-10(b) and had determined “that the time, content, and circumstances
(1)) the court finds that the statement is reliable. In People of the statement provide[d] sufficient safeguards of reliability”
v. Kitch, 239 Ill. 2d 452 (2011), in rejecting the defendant’s (id. at ¶ 74; citing 725 ILCS 115-10(b)(1)), the court affirmed
contention that section 115-10 is facially unconstitutional, but the defendant’s conviction.
in discussing section 115-10(b)(2)(B) (which was not directly In People v. Rottau, 2017 IL App (5th) 150046, the appellate
under review in the case), the supreme court pointed out that court approved the admission of videotaped interviews of an
Crawford “requires something different: where the declarant is under-13-years-of-age girl concerning sexual activities with her
unavailable, the defendant must have had a prior opportunity stepfather, under section 115-10, where the girl testified about
for cross-examination.” them when she was 18 years of age.
Other Decisions Applying Section 115-10 In People v. Dabney, 2017 IL App (3d) 140915, the defen-
Section 115-10 of the Code of Criminal Procedure of 1963 dant, a family friend, was charged with committing four sepa-
(725 ILCS 5/115-10; provided at Appendix U), which has been rate acts of sexual conduct against a 10 year-old girl. A forensic
referred to numerous times in this commentary, provides for an interviewer with Child Network conducted a video-recorded
exception to the hearsay rule for statements made by children interview of the girl, who testified at trial about two of the acts
under the age of 13 (or “a person with a moderate, severe, or of sexual conduct, but said nothing about the other two acts.
profound intellectual ability”) who are the victims of numerous The video recording of the girl’s interview, which contained
listed physical and sexual offenses. It deserves special atten- information about all four of the sexual acts, was admitted into
tion, because of its likely application in many offenses against evidence under section 115-10. The defendant was convicted
children under the age of 13. of all four of the acts and sentenced to concurrent terms of
People v. Applewhite, 2016 IL App (4th) 140588, is illus- imprisonment. The issue on appeal, based on the defendant’s
trative. In that case, shortly after the offense, the 11-year-old contention that his constitutional rights under the confrontation
victim informed her mother and a nurse and two police officers clause were violated, concerned the propriety of the admission
of the sex act the defendant committed on her. Her detailed of the video recording as to the two acts about which the vic-
description of the act, as well as two other previous acts tim had not testified, as well as the convictions for those two
involving the defendant, were testified to by her and by those offenses.
Because the defendant had not objected to the admission the State from presenting information to the jury by
of the video recording, the appellate court engaged in plain any means. See K.E.F., 235 Ill. 2d at 540; Brindley,
error review, which required an initial determination as to 2017 IL App (5th) 160189, ¶ 16. In this case, the
whether error had occurred. Noting that the video contained answer to that question is no.” Lee, at ¶13.
information about the four sexual acts, citing numerous appel- Admissibility of “Nontestimonial” Statements
late court decisions that had addressed similar circumstances Despite the limitations on admitting “testimonial” state-
and reached the same conclusion, and based on its reasoning ments, when out-of-court statements are deemed to be
that the defendant had an opportunity for effective cross-ex- “nontestimonial” section 115-10 (see Appendix U) allows
amination which did not guarantee effectiveness in the fashion admissibility when its provisions are satisfied, even when the
that a defendant may desire, the appellate court held that the minor witness does not testify. An example of a case allowing
defendant’s confrontation rights had not been violated. The such out-of-court statements is In re Kenneth W, 2012 IL App
convictions for the four separate charges were affirmed. (1st) 102787, ¶¶ 64-72 (holding out-of-court statements made
In People v. Lee, 2020 IL App (5th) 180570, the issue to her father by a four-year-old girl, who was a victim of sex
addressed by the appellate court was whether it had jurisdic- offenses, were admissible under section 115-10 because they
tion under S. Ct. R. 604(a)(1) to rule on the State’s interlocu- were both reliable and corroborated, and they were found to
tory appeal of the trial court’s order excluding admission of be nontestimonial and thus did not violate Crawford).
statements, sought to be admitted under section 115-10(a), of
People v. Melchor; In re E.H.—Determining Evidentiary Issues
the defendant’s three young daughters about his alleged sexual before Constitutional Questions
abuses. Reasoning that the trial court’s order did not have the Although it is a rule that has primary significance in courts
effect of suppressing evidence, as required by Rule 604(a)(1), of review, because it also is relevant to the process that should
the court dismissed the appeal based on lack of jurisdiction be followed by a trial court in determining admissibility of
because the State had acknowledged that the evidence was evidence that might have a constitutional impediment, it is
admissible by other means, specifically, the testimony of the important to be aware of the supreme court’s mandate that
three daughters. “[w]hen a court is asked to evaluate the admission of out-of-
The appellate court distinguished its prior holding under court statements into evidence, the first step is determining
section 115-10(a), in which it reversed excluded evidence, whether the statement passes muster as an evidentiary matter.”
in People v. Brindley, 2017 IL App (5th) 160188, where the People v. Melchor, 226 Ill. 2d 24, 34 (2007), citing In re E.H.,
suppressed evidence was an audio-video recording of the 224 Ill. 2d 172, 179 (2006) (emphasis in original). In Melchor,
very drug transaction at issue, rather than a statement about the supreme court went on to state:
the transaction. It also distinguished the holding in People v. “If the proponent seeks to admit the statement pur-
Bowen, 183 Ill. 2d 103 (1998), where, on the direct appeal of suant to a statutory hearsay exception, the court
the defendant, the supreme court affirmed the admission of the must evaluate the statement to determine whether
videotaped statement of the three-year-old victim of a sexual it meets the statute’s requirements. We reasoned
offense in addition to her trial testimony. In this interlocutory [in E.H.]: ‘Only once the statement has first been
appeal by the State, based on Rule 604(a), the appellate court found admissible as an evidentiary matter should
stated the jurisdictional issue and its response as follows: constitutional objections—including Crawford-
“The jurisdictional question, however, is not based confrontation clause claims—be dealt
whether evidence is admissible, how reliable the with. [Citations.] This is the only analytical “flow
evidence is, or what purpose it serves; the question chart” that comports with the rule that courts must
is simply whether the ruling appealed precludes avoid considering constitutional questions where
the case can be decided on nonconstitutional already has had a chance to impeach the witness’s
grounds.’” Melchor, 226 Ill. 2d at 34, citing E.H., credibility and establish that she has a motive to
224 Ill. 2d at 179-80. lie, then any constitutional concerns vanish and
Additional Author’s Commentaries Related to Crawford we review the district court’s decision to limit
For more on Crawford’s application of the confrontation additional inquiries only for abuse of discretion.
clause to “testimonial statements,” in addition to those cases Even if the court errs in barring cross, that error
discussed above and below, see the Author’s Commentary on is harmless depending upon factors such as the
Ill. R. Evid. 703 related to Williams v. Illinois, and the Author’s importance of the witness’s testimony in the pros-
Commentary on Ill. Rs. Evid. 803(6) and 803(8) related to ecution’s case, whether the testimony was cumu-
People v. Leach concerning autopsy reports as business records. lative, the presence or absence of corroborating or
contradictory evidence, and the overall strength of
Seventh Circuit’s Holding Regarding Trial Court’s Discretionary the prosecution’s case.” Groce, 891 F.3d at 268-69
Limitations on Cross-Examination Consistent with Confrontation
Clause (internal citations, ellipsis, and quotation marks
In United States v. Groce, 891 F.3d 260 (7th Cir. 2018), omitted).
the Seventh Circuit had this to say about the district court’s
discretion in limiting cross-examination within the bounds of Synopsis of United States and Illinois Supreme Court Decisions
Addressing DNA Analysis, Lab Reports, and Expert Testimony
the confrontation clause: Based on Work of Others
“A court has broad discretion to limit cross, This commentary has focused on decisions about statutes
within the Confrontation Clause’s bounds. The designed to allow admissibility of out-of-court statements
Confrontation Clause guarantees a defendant under certain conditions and the effect of Crawford on their
an opportunity for effective cross-examination, admissibility. But no discussion of the confrontation clause and
but there is no guarantee of cross-examination the jurisprudence that stems from Crawford’s holding would
to whatever extent the defense might wish. We be complete without a discussion of United States and Illinois
review a limit on cross de novo if it directly Supreme Court decisions that address the broader question of
implicates the Confrontation Clause’s core values; whether statements unrelated to a specific statute are testimo-
otherwise we review for abuse of discretion. nial or nontestimonial. Other parts of this guide have discussed
Impeaching a witness is a core value. Exposing a the first three of the four cases listed below. But they are listed
witness’s motivation, biases or incentives for lying again and one is added, together with parenthetical summaries,
is a core value. But once a trial court permits a to complete this commentary—a commentary focused in large
defendant to expose a witness’s motivation, it is of part on the evolution of Crawford’s jurisprudence.
peripheral concern to the Sixth Amendment how Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)
much opportunity defense counsel gets to hammer (sworn certificates of forensic analysts reporting the results of
that point home to the jury. The Confrontation testing that were admitted into evidence to establish that the
Clause does not give a defendant a boundless right substance seized from the defendant was cocaine constituted
to impugn the credibility of a witness. The court testimonial statements for confrontation clause purposes; four
has wide latitude to impose reasonable limits on of the five justices who comprised the majority reasoned that
such cross-examination based on concerns about the sworn certificates were prepared for use in a criminal trial,
harassment, prejudice, confusion of the issues, the and that they therefore were the equivalent of testimony against
witness’ safety, or interrogation that is repetitive the defendant).
or only marginally relevant. If the defendant
For a relevant decision applying Melendez-Diaz (and was designed to reach, this alternative basis being very similar
Bullcoming), see United States v. Barber, 937 F.3d 965 (7th Cir. to Justice Thomas’ reasoning (as the fifth vote for the plurality)
2019) (holding that, though an ATF report that a firearm dealer that the lab test lacked the solemnity necessary to trigger con-
was currently federally licensed (to establish that element in frontation clause application). See the Author’s Commentary to
the count for stealing firearms from a federally licensed firearm Ill. R. Evid. 703 for a discussion of Williams.
dealer) was improperly admitted in violation of the confron- People v. Barner, 2015 IL 116949. The facts in this Illinois
tation clause, that error was harmless because the owner of case, which concerns DNA evidence related to a sex offense,
the dealership testified to its current licensing and produced a are similar to those in Williams. In its opinion, the Illinois
current license). Supreme Court provides a comprehensive summary of the
Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705 three U.S. Supreme Court decisions given above, as well as
(2011) (a lab report that certified the results of a blood-alcohol its own decision in People v. Leach, 2012 IL 111534, which
test on a sample taken from the defendant when he was arrested is thoroughly discussed in the Author’s Commentary on IRE
for driving while intoxicated was improperly admitted into 803(8). In this, its most recent decision on Crawford, and
evidence, because the test results were testimonial as the lab consistent with Williams, the supreme court held that there was
report was created for an evidentiary purpose in aid of a police no violation of the confrontation clause where State witnesses
investigation, and the surrogate testimony of a scientist who were allowed to testify concerning the DNA laboratory work
did not participate in the testing did not meet constitutional and conclusions of nontestifying scientists regarding the restric-
requirements). tion fragment length polymorphism (RFLP) analysis method
Williams v. Illinois, 567 U.S. 50, 132 S. Ct. 2221 (2012) and the short tandem repeat (STR) method. Applying the test
(DNA expert’s testimony that DNA taken from a vaginal swab provided in Leach in regard to the testimony about the RFLP
of the rape victim matched the defendant’s DNA was properly method, the court held that the analysis was not performed for
admitted into evidence, even though the expert had no first- the primary purpose of accusing a targeted individual or for
hand knowledge of the sources of the DNA or of the underlying the primary purpose of providing evidence in a criminal case.
testing, and where, unlike in Melendez-Diaz and Bullcoming, As for the evidence about the STR testing, the court noted that
no report was admitted into evidence. Four of the five justices in the record failed “to establish that it was done for the primary
the plurality reasoned that the testimony was admissible under purpose of targeting defendant or creating evidence for use
Rule 703 as evidence reasonably relied upon by experts; and in a criminal prosecution” (Barner, at ¶ 69), but even if the
admissible, in the alternative, even if the report of the lab that defendant’s right of confrontation had been violated, the court
did the testing had been admitted into evidence, because it was held, any error in the admission of the evidence was harmless
dissimilar from statements such as affidavits, depositions, prior beyond a reasonable doubt.
testimony, and confessions, which the confrontation clause
(B) a particular business, if the call was made self-identification, show the person answering to be
to a business and the call related to business rea- the one called, or (B) in the case of a business, the
sonably transacted over the telephone. call was made to a place of business and the conver-
(7) Evidence About Public Records. Evidence sation related to business reasonably transacted over
that: the telephone.
(A) a document was recorded or filed in a (7) Public Records or Reports. Evidence that
public office as authorized by law; or a writing authorized by law to be recorded or filed
(B) a purported public record or statement is and in fact recorded or filed in a public office, or a
from the office where items of this kind are kept. purported public record, report, statement, or data
(8) Evidence About Ancient Documents or compilation, in any form, is from the public office
Data Compilations. For a document or data com- where items of this nature are kept.
pilation, evidence that it: (8) Ancient Documents or Data Compila-
(A) is in a condition that creates no suspicion tion. Evidence that a document or data compilation,
about its authenticity; in any form, (A) is in such condition as to create no
(B) was in a place where, if authentic, it would suspicion concerning its authenticity, (B) was in a
likely be; and place where it, if authentic, would likely be, and (C)
(C) is at least 20 years old when offered. has been in existence 20 years or more at the time it
(9) Evidence About a Process or System. Evi- is offered.
dence describing a process or system and showing (9) Process or System. Evidence describing a
that it produces an accurate result. process or system used to produce a result and show-
(10) Methods Provided by a Statute or ing that the process or system produces an accurate
Rule. Any method of authentication or identifica- result.
tion allowed by a federal statute or a rule prescribed (10) Methods Provided by Statute or Rule. Any
by the Supreme Court. method of authentication or identification provided
by statute or by other rules prescribed by the Supreme
Court.
COMMENTARY
(2005) (holding that, on appeal, a “defendant’s challenge to the voices of the people in the conversation and testifies that the
State’s chain of custody is properly considered an attack on the [recording] accurately portrays the conversation,” the appellate
admissibility of the evidence, rather than a claim against the court reasoned that “where there is no witness with personal
sufficiency of the evidence, and is subject to the ordinary rules knowledge of what the recordings portray, a sufficient founda-
of waiver”). tion to admit the recording may be laid under what is known as
Application of the Silent Witness Theory the silent witness theory,” where “a recording may be admitted
People v. Reynolds, 2021 IL App (1st) 181227, deserves seri- without the testimony of a witness with personal knowledge of
ous consideration for it provides the bases for authenticating what the recording portrays as long as there is sufficient proof
audio recordings of two jail telephone calls without relying on of the reliability of the process that produced the recording.”
the typical foundations for admission of such recordings and Id. at ¶49.
without relying on any subdivision of IRE 901(b), by relying Reynolds offers a thorough analysis of the evidence that
on proof of authentication through the “silent witness theory.” sufficiently demonstrated the accuracy and reliability of the
In Reynolds, the State presented evidence that, while the process that produced the recordings of the jail calls. It relied
defendant was in pretrial custody for felony offenses, two sep- on the testimony of the sheriff’s employee who testified con-
arate telephone conversations, which provided incriminating cerning the workings of the jail’s inmate phone system, includ-
information against the defendant, were recorded by the jail’s ing its monitoring and recording; the fact that the male caller
inmate phone system. The recorded conversations involved provided the defendant’s name and personal identification
the same man and the same woman. The State contended number; that there was no need for a voice recognition feature;
that the recorded male’s voice was defendant’s. The defendant and, citing People v. Viramontes, 2017 IL App (1st) 142085,
contended that the State failed to lay a proper foundation to ¶ 71, and People v. Taylor, 2011 IL 110067, ¶ 39, holding that
authenticate the recordings. “the fact that the audio recording[s] exist[] at all demonstrates
In addition to pointing out the typical foundational require- [that] the system was acting correctly” (Reynolds, at ¶55), thus
ments for admitting audio recordings (see Reynolds, at ¶ 50), rejecting the defendant’s contentions that the State “offered no
and noting that an audio recording is generally authenticated evidence regarding the capability of the recording device, the
“when a participant to the conversation or a person who competency of the individual who operated it, or whether the
heard the conversation while it was taking place identifies the device was operating properly when the calls were made.” Id.
Author’s Commentary on Ill. R. Evid. 901(b) and its Subdivisions
IRE 901(b) is identical to the federal rule before the latter’s or identification. For an example of the application of the rule,
amendment solely for stylistic purposes effective December see People v. Tetter, 2018 IL App (3d) 150243, ¶¶25-34, where
1, 2011. Except for language added to IRE 901(b)(4), effective the appellate court affirmed the admission of a voicemail
September 17, 2019 (which is discussed below), the numbered recording which the complaining witness in a prosecution for
subdivisions that comprise IRE 901(b) are identical to their fed- aggravated criminal sexual abuse identified as a message she
eral counterparts before the December 1, 2011 amendments. left on the defendant’s voicemail, and on which she stated that
They offer a series of illustrations—as examples only, and not she was 16 years of age, thus establishing the relevant element
as a complete list—of evidence that satisfies the requirement of of defendant’s knowledge of her age. That the recording was
authenticating or identifying an item of evidence. captured from the defendant’s cell phone on a thumb drive
IRE 901(b)(1) by the U.S. Secret Service through an unknown method or that
IRE 901(b)(1) provides the obvious illustration that testimony a challenge to the complaining witness’s credibility may have
of a witness with knowledge that an item of evidence is what it affected the weight of the evidence, but not its admissibility.
is claimed to be provides sufficient evidence of authentication
The federal rule analysis is identical. See United States In its analysis, the appellate court first cited section 8-1206
v. Brewer, 915 F.3d 408 (7th Cir. 2019) ( “Rule 901 does not of the Code of Civil Procedure (735 ILCS 5/8-1206), which
expressly describe how videotape evidence may be authenti- “provides that the authenticity of court records ‘may be proved
cated, but we have held that the government can authenticate by copies examined and sworn to by credible witnesses.’”
a recording ‘by offering testimony of an eyewitness that the Pitts, at ¶ 64 (emphasis added by the court). Acknowledging
recording accurately reflects’ the events as they occurred. that the State had provided no live testimony regarding the
United States v. Eberhart, 467 F.3d 659, 667 (7th Cir. 2006); see authenticity of the copy of the complaint for the search war-
also United States v. Cejas, 761 F.3d 717, 723 (7th Cir. 2014).” rant, the appellate court noted that “under the Illinois Rules of
Brewer, 915 F.3d at 417. Evidence, sworn testimony is not the only way to authenticate
IRE 901(b)(2) and (3) a document.” Id. at ¶71. The court pointed out that, in addition
For a statute comparable to IRE 901(b)(2) and (3), see sec- to witness testimony under IRE 901(b)(1) (which, the court
tion 8-1501 of the Code of Civil Procedure, 735 ILCS 5/8-1501, reasoned, provided the same authentication method as that
which reads: provided in section 8-1206), authentication may be established
“In all courts of this State it shall be lawful to prove by the trier of fact comparing the document to other authenti-
handwriting by comparison made by the witness or jury cated documents under IRE 901(b)(3), “or by the document’s
with writings properly in the files of records of the case, ‘[a]ppearance, contents, substance, internal patterns, or other
admitted in evidence or treated as genuine or admitted distinctive characteristics, taken in conjunction with circum-
to be genuine, by the party against whom the evidence stances’” under IRE 901(b)(4). Pitts, at ¶72.
is offered, or proved to be genuine to the satisfaction of The court concluded “that these alternative methods of
the court.” authentication in the rules of evidence act to supplement
Sections 8-1502 and 8-1503 of the same Code require the method of authentication provided in section 8-1206.”
notice of the use of handwriting standards to the opposing Therefore, to avoid a conflict between the rules of evidence
party and an opportunity for the opposing party to examine and a statutory rule of evidence, the court refused to read sec-
any proposed handwriting standards. tion 8-1206 as providing the exclusive method for providing
IRE 901(b)(3) and (4) authentication.
IRE 901(b)(3) and IRE 901(b)(4) were subject to in-depth After then engaging in a thorough analysis of the first page
analysis by the appellate court in People v. Pitts, 2016 IL App of the complaint for search warrant and the warrant itself, and
(1st) 132205. In that case, at a motion-to-suppress hearing, the comparing it to the contents of the purported second page of the
second page of a complaint for search warrant was missing. The complaint, the appellate court determined that the requirement
complaint had been signed by the judge issuing the warrant of authentication was satisfied because of a “[c]omparison ***
and it led to the issuance of a search warrant that resulted in with specimens which have been authenticated” under IRE
the recovery of firearms and ammunition, which in turn led 901(b)(3); or alternatively, under IRE 901(b)(4), “based on the
to criminal charges based on weapons violations. To compen- ‘[a]ppearance, contents, *** or other distinctive characteristics’
sate for the missing page at the hearing, the State offered an of the second page ‘taken in conjunction with circumstances,’
unsigned copy of the complaint. The trial court accepted the such as the fact that the second page continues a sentence from
copy and denied the motion to suppress. On appeal after the the first page, clearly covers the same subject matter, and con-
defendant’s conviction, the issue before the appellate court tains the same distinctive legend as both the first page and the
concerned the propriety of the trial court’s considering the warrant itself.” Pitts, at ¶ 79. Accordingly, the appellate court
purported duplicate copy of the second page of the complaint upheld the authentication of the substitute second page of the
in denying the defendant’s motion to suppress the evidence.
complaint for search warrant and affirmed the conviction of phone calls, the witness checked the caller ID and that the
the defendant. same number always appeared for the same caller.”). For other
IRE 901(b)(4) examples of this rule’s application to phone conversations, see
Effective September 17, 2019, the supreme court amended the discussion of IRE 901(b)(6) just below.
IRE 901(b)(4). Immediately after the phrase “or other distinctive Regarding circumstantial evidence of authorship for the
characteristics” the court added “of an item, including those admissibility of an e-mail message, see People v. Diomedes,
that apply to the source of an electronic communication.” 2014 IL App (2d) 121080, ¶¶ 17-19 (citing IRE 901(b)(4) in
Until that revision, no evidence rule had specifically addressed holding that authentication requirements for admissibility of
authentication of electronic communications such as text an e-mail message may be satisfied where the document’s
messages, emails, and social media sites. Before the amend- contents, in conjunction with other circumstances, reflect dis-
ment, Rule 901(b)(4), which provides circumstantial evidence tinctive characteristics; and there is no obligation to prove that
of authenticity based on “distinctive characteristics,” was the IP address from which the e-mail was sent was connected
nevertheless the go-to rule for a trial court’s determination of to the defendant).
an electronic communication’s authenticity. But the supreme Regarding the authentication requirements for admission of
court’s amendment now makes it clear that such communica- sent and received text messages, see People v. Walker, 2016 IL
tions are subject to the rule. The court recognizes the impact App (2d) 140566 (applying IRE 901(b)(4) to establish circum-
of rapidly evolving technology on the admissibility of evidence stantial evidence that defendant arranged or was accountable
and the need for the rules to keep pace. The amendment makes for a fourth cocaine sale, where text messages involving a
explicit what previously was implicit. (Note that in People phone number used by an undercover officer to receive and
v. Brand, 2021 IL 125945, ¶ 38, which is discussed infra, in make calls to defendant and buy cocaine from him three prior
affirming the admission of the defendant’s use of an alias name times before using only text messages for the fourth drug pur-
in Facebook postings, the supreme court quoted this paragraph, chase). Also, see the Seventh Circuit decisions in United States
thus embracing the fact that IRE 901(b)(4) implicitly applied v. Lewisbey, 843 F.3d 653 (7th Cir. 2016) (applying FRE 901(b)
even before the court’s September 17, 2019 amendment.) (4), which is identical to its Illinois counterpart, in holding that
It is especially important for those who proffer evidence the defendant’s text messages and Facebook posts satisfied the
of documents or communications (whether electronic or rule’s requirements and were properly admitted); and United
otherwise) to stress the distinctive characteristics that will States v. Barber, 937 F.3d 965 (7th Cir. 2019) (citing Lewisbey
lead the trial judge to determine that the proffered evidence is and relying on direct and circumstantial evidence that estab-
admissible as authentic and, if admitted, will lead the jury to lished Facebook account belonged to defendant).
give the evidence the desired weight. With those goals in mind, In People v. Harper, 2017 IL App (4th) 150045, one of the
the following decisions are offered as examples of success and issues was the propriety of the admission of a series of text
failure in obtaining admissibility. messages to the defendant from an unidentified person. The
Regarding IRE 901(b)(4), see the pre-codification decision gist of the texts was that the unidentified text-sender had heard
in People v. Towns, 157 Ill. 2d 90, 104 (1993) (“In authenti- that the defendant and “some of your guys” were responsible
cating a document by circumstantial evidence, factors such as for a killing that had occurred just hours earlier. In its anal-
appearance, contents, and substance need to be considered.”). ysis, the appellate court held that a “record from the phone
Regarding the admissibility of “Caller ID” as a foundational company, showing the time and recipient or maker of calls to
basis for proving the source of a phone call, see People v. or from a number registered to defendant, is admissible as a
Caffey, 205 Ill. 2d 52 (2001) (“Reliability may be established business record. The same is true with regard to text messages.
when the witness testifies that when he or she received tele- The fact calls and texts were made and received by defendant
was properly authenticated.” Harper, at ¶ 57. Despite the fact “Santos” was represented to be the last name of the defen-
that the State had established a proper foundation to introduce dant’s mother, but the State presented no evidence of that
evidence that calls and texts were made and received by the latter fact. The Facebook post contained “a photograph of
defendant, the appellate court held that the content of the text someone allegedly resembling defendant and an undated post
messages should not have been admitted, because the State that states, ‘its my way or the highway.....leave em dead n his
had not identified who sent the messages, and the content of driveway.’” Kent, at ¶81. During a pretrial hearing, there was a
the messages was blatant hearsay. Id. at ¶62. Allowing the jury representation that the Facebook post was associated with an IP
to see this prejudicial and inadmissible evidence constituted address belonging to the woman referred to above, but the State
reversible error. presented no Facebook records at trial. The Facebook post was
See also People v. Watkins, 2015 IL App (3d) 120882 (hold- admitted over the defendant’s objections. The significant issue
ing that drug-related text messages recovered from a cell phone on appeal was the propriety of the admission of the screenshot
located near recovered cocaine in an apartment shared by oth- of the Facebook post.
ers, used to connect the phone and the drugs to the defendant, Noting that the parties had not cited, and that its research
were improperly admitted into evidence because “there were had not discovered, any Illinois case addressing the admissi-
no cell phone records to indicate that the cell phone belonged bility of a Facebook post allegedly attributable to a criminal
to or had been used by defendant or anyone else at the resi- defendant, the appellate court relied heavily (see Kent, at
dence; there was no eyewitness testimony to indicate that the ¶¶ 88-100) on a Second Circuit Court of Appeals case, United
cell phone belonged to or had been used by defendant or that States v. Vayner, 769 F.3d 125 (2d Cir. 2014)—a decision which
the messages were being sent to defendant; and there were no the Seventh Circuit in United States v. Barber, 837 F.3d 965
identifying marks on the cell phone itself or on the cell phone’s (7th Cir. 2019), later distinguished, stating: “the government’s
display screen to indicate that the cell phone belonged to or case was so weak that at first it did not even try to admit the
had been used by defendant (other than possibly the references website at issue as the defendant’s. When it did try, the govern-
to ‘Charles’ [which was defendant’s first name] in the text ment could point to nothing in the record suggesting that the
messages)” and because the police officer who provided expert defendant had ties to the website.” Barber, 837 F.3rd at 970.
testimony about the meaning of the text messages was unable Stressing the ease with which a fictitious Facebook posting can
to authenticate the text messages because he “had no personal be achieved and that the State failed to present any evidence
knowledge of the text messages and had no idea who was the that it was not public knowledge that the victim was killed
owner or user of the cell phone”). Id. at ¶38. on his own driveway, the appellate court in Kent concluded
In People v. Kent, 2017 IL App (2d) 140917, the defendant that “to argue that the Facebook post was tantamount to an
was convicted of the first-degree murder of the victim who was admission that defendant killed the victim in his driveway, Rule
shot and killed on his driveway. The victim had two children 901 required ‘some basis’ on which a reasonable juror could
by the woman who was at that time in a relationship with conclude that the post was not just any Internet post, but was
the defendant. Two days before the shooting, the defendant, in fact created by defendant or at his direction.” Kent, at ¶119.
accompanied by the woman, had gone to the location where The court reversed the defendant’s conviction, holding that the
the victim resided. There, the defendant was involved in a admission of the Facebook posting was error and that the error
violent altercation with the victim. The day after the shooting, was not harmless.
a detective took a screenshot of a Facebook post on a profile Postscript on Kent: The retrial of Kent, which resulted in
under the name “Lorenzo Luckii Santos.” The screenshot was another conviction for first-degree murder, was again reversed
deleted later on the day it was discovered. “Lorenzo” is the and remanded by the appellate court in People v. Kent, 2020 IL
defendant’s first name; “Luckii” is the defendant’s nickname; App (2d) 180887. In Kent II, the State’s claim that a key witness
in the earlier trial was unavailable for trial resulted in the trial tion, (3) business records of an Internet service provider
court’s admission of the witness’s earlier testimony under IRE or cell phone company show that the communication
804(b)(1). The appellate court reversed the conviction and originated from the purported sender’s personal com-
remanded the case because the State failed to support its claim puter or cell phone under circumstances in which it is
that the witness was unavailable by affidavit or sworn testimony. reasonable to believe that only the purported sender
People v. Curry, 2020 IL App (2d) 180148, is another would have had access to the computer or cell phone,
Facebook-related decision that distinguishes Kent. In so doing (4) the communication contains information that only
the appellate court noted that in Kent “the only evidence of the purported sender could be expected to know, (5)
authentication [of the Facebook post] was the defendant’s the purported sender responds to an exchange in such a
nickname and a photograph allegedly resembling Kent.” Curry, way as to indicate circumstantially that he was in fact the
at ¶ 54 . In contrast, here the appellate court, noting that author of the communication, or (6) other circumstances
Facebook messages are akin to e-mails or text messages, held peculiar to the particular case may suffice to establish
that Facebook postings sent by the defendant to the victim of a prima facie showing of authenticity.” Brand, at ¶ 44,
his sexual offense were properly admitted under IRE 902(11) citing Kent, 2017 IL App (2d) 140917, at ¶118.
as self-authenticating business records, because the State After citing these Kent factors, the supreme court clarified
had submitted the written certification of a qualified person that:
from Facebook and the certification provided that the records “[t]he appellate court in Kent noted that these exam-
were made and kept by Facebook in the course of its regularly ples ‘are intended only as a guide’ and that “‘[e]vidence
conducted activity and as part of its regular business practice. may be authenticated in many ways, and as with any
The appellate court concluded “that was sufficient to admit the piece of evidence whose authenticity is in question, the
information regarding defendant’s name, address, telephone ‘type and quantum’ of evidence necessary to authenti-
number, and e-mail address, as indicated on the Facebook cate a web page will always depend on context.’” Citing
account, as self-authenticating business records.” Curry, at ¶52. Kent, 2017 IL App (2d) 140917, at ¶119.
To satisfy additional authentication requirements, the appellate Having made those observations, the supreme court in
court cited IRE 901(b)(4), which allows authentication through Brand relied on the victim’s familiarity with the defendant’s
circumstantial evidence, reasoning that the Facebook messages alias name because he had used it in prior messages to her and
contained information that only defendant would have known, because in one posting he accurately informed the victim of
including the defendant’s nickname for the victim and his the location of her stolen car, and in the other posting he made
personal knowledge of the offense. reference to addresses where her relatives lived and where
In People v. Brand, 2021 IL 125945, a prosecution for she had previously worked. In explaining the relevance of IRE
home invasion, domestic battery, and possession of the female 901(b)(4) before and after its amendment in 2019, the supreme
victim’s stolen car, the supreme court upheld the admission of court cited People v. Diomedes, 2014 IL App (2d) 121080, “in
Facebook postings against the defendant Brand who used the holding that authentication requirements for the admissibility
nickname of Masetti Meech, of an e-mail message may be satisfied when the contents of
During its analysis, the supreme court quoted People v. Kent, the document, in conjunction with other circumstances, reflect
2020 IL App (2d) 180887, pointing out that “Kent held that distinctive characteristics and that there is no obligation to
the following factors were relevant for determining whether a prove that the IP address from which the e-mail was sent was
social media post was properly authenticated:” connected to the defendant.” Brand, at ¶¶ 40-41. The court
“(1) the purported sender admits authorship, (2) the provided this explanation:
purported sender is seen composing the communica-
police assistance because her husband had grabbed her by the Illinois, because under the common law a 30-year time period
neck. The caller gave her name and the name of the defendant, had been required. See section (9) under the “Modernization”
as well as his date of birth and what he was wearing. When discussion in the Committee’s general commentary on page 3
police arrived at the apartment a few minutes later, defendant of this guide. As noted, though the 20-year provision remains
and his wife were the only two adults present. The information in IRE 901(b)(8)(C), the September 28, 2018 amendment to IRE
provided on the 911 call perfectly matched the officers’ obser- 803(16) has altered the time requirement for ancient documents
vations. A photo taken shortly after the officers’ arrival showed to those prepared before January 1, 1998.
redness around the wife’s neck. Although defendant’s wife did The rule furnishes a method (but not necessarily the only
not testify at trial, the appellate court reasoned that “the content method) for authenticating statements in ancient documents
of the call was corroborated by other circumstances identifying under IRE 803(16). It is premised on the belief that the authenti-
[defendant’s wife] as the caller,” and it held that the trial court cation requirements in subdivisions (A) and (B) of the rule min-
did not abuse its discretion in admitting the recording into imize the danger of mistake and that the age of the document
evidence. Camacho, at ¶27. or data compilation in subdivision (C) offer assurance that the
IRE 901(b)(7) writing antedates the present controversy.
IRE 901(b)(7) provides the authentication requirements for IRE 901(b)(9)
the admission of public records as an exception to the hearsay For a case relevant to IRE 901(b)(9), see People v. Holowko,
rule under IRE 803(8) . Such records may be admitted through 109 Ill. 2d 187 (1985) (pointing out that “the printout of results
judicial notice. See, e.g., Menominee Indian Tribe v. Thompson, of computerized telephone tracing equipment represents a
161 F.3d 449, 456 (7th Cir. 1998) (“Judicial notice of historical self-generated record of its operations, much like a seismo-
documents, documents contained in the public record, and graph can produce a record of geophysical occurrences, a
reports of administrative bodies is proper.”). The rule should flight recorder can produce a record of physical conditions
be distinguished from IRE 902(4), which allows admission onboard an aircraft, and an electron microscope can produce
into evidence of public records by self-authentication through a micrograph, which is a photograph of things too small to be
certification. viewed by the human eye.” Holowko, 109 Ill. 2d at 193 (inter-
IRE 901(b)(8) nal quotation marks omitted), and holding that the admission
IRE 901(b)(8) provides the authentication requirements into evidence of such results “requires only foundation proof of
for IRE 803(16), which provides the hearsay exception for the method of the recording of the information and the proper
statements in ancient documents. Note that the September 28, functioning of the device by which it was effected”) Id.
2018 amendment of IRE 803(16), which provides a hearsay Also, see People v. Caffey, 205 Ill. 2d 52 (2001) (holding
exception for an authentic document prepared before January that “information displayed on a caller ID device is not hearsay
1, 1998, effectively requires the document to be in existence because there is no out-of-court asserter” and holding further
20 years or more, so no amendment to IRE 901(b)(8)(C), which that “the only requirement necessary for the admission of caller
refers to the 20-year requirement, was necessary. In the future, ID evidence is that the caller ID device be proven reliable,”
however, to satisfy the rule’s requirement for authenticating an which was satisfied in this case because the witness’s caller ID
ancient document, one of the required proofs will be, not that displayed the caller’s name for each of the numerous calls from
the document was prepared 20 years or more before the date the same woman).
offered for admission, but that it predates January 1, 1998. See also Grand Liquor Co. v. Department of Revenue, 67
Note that the 20-year provision in IRE 901(b)(8)(C) (and in Ill. 2d 195 (1977) (finding that Department of Revenue failed
pre-amended IRE 803(16)) for evidence of an ancient docu- to lay sufficient foundation for admission of records, but
ment or data compilation represented a substantive change in adopting decision of the Mississippi Supreme Court in holding
“that print-out sheets of business records stored on electronic of accuracy of the Breathalyzer machine within 62 days of the
computing equipment are admissible in evidence if relevant test); People v. Hagan, 145 Ill. 2d 287 (1991) (citing Grand
and material, without the necessity of identifying, locating and Liquor Co. v. Department of Revenue, 67 Ill. 2d 198 (1977),
producing as witnesses the individuals who made the entries in holding a faxed letter was properly admitted, for it satisfied
in the regular course of business if it is shown (1) that the elec- the foundation requirements for computer printouts); Aliano v.
tronic computing equipment is recognized as standard equip- Sears, Roebuck & Co., 2015 IL App (1st) 143367 (explaining
ment, (2) the entries are made in the regular course of business the difference between computer-generated records (using
at or reasonably near the time of the happening of the event the definition and proof of the method for the recording of
recorded, and (3) the foundation testimony satisfies the court the information supplied by the quotes in the parenthetical of
that the sources of information, method and time of prepara- Holowko above) and computer-stored records, which consist
tion were such as to indicate its trustworthiness and justify its of information placed into a computer by an out-of-court
admission”); People v. Hanna, 207 Ill. 2d 486 (2003) (regarding declarant, and holding that the business records exception to
breath analysis instruments for the testing of alcohol level); the hearsay rule was not satisfied for the purpose of proving
People v. Orth, 124 Ill. 2d 326 (1998) (providing foundation for attorney fees, because the original documents concerning
admission of breath test in DUI case); People v. Eagletail, 2014 those fees had not been presented in court or made available
IL App (1st) 130252 (holding that a computer report of a breath to the opposing party).
test in a DUI case was properly admitted, and that the original For a decision that provides authentication requirements
printout sheet from the machine was unnecessary); People v. for computer-generated business records, see the discussion
Smith, 2015 IL App (1st) 123306 (reversing defendant’s con- about People v. Dixon, 2015 IL App (1st) 130132 under the
viction for driving with an alcohol concentration of 0.08 or heading Computer-Generated Business Records in the Author’s
more because of the absence of evidence of the certification Commentary on Ill. R. Evid. 902 and Its Subdivisions.
the document’s authenticity and accuracy, the court fication or permit them to be evidenced by an attested
may, for good cause, either: summary with or without final certification.
(A) order that it be treated as presumptively (4) Certified Copies of Public Records. A copy
authentic without final certification; or of an official record or report or entry therein, or of a
(B) allow it to be evidenced by an attested sum- document authorized by law to be recorded or filed and
mary with or without final certification. actually recorded or filed in a public office, including
(4) Certified Copies of Public Records. A copy of data compilations in any form, certified as correct by
an official record—or a copy of a document that was the custodian or other person authorized to make the
recorded or filed in a public office as authorized by certification, by certificate complying with paragraph
law—if the copy is certified as correct by: (1), (2), or (3) of this rule or complying with any statute
(A) the custodian or another person authorized or rule prescribed by the Supreme Court.
to make the certification; or (5) Official Publications. Books, pamphlets, or
(B) a certificate that complies with Rule 902(1), other publications purporting to be issued by public
(2), or (3), a federal statute, or a rule prescribed by authority.
the Supreme Court. (6) Newspapers and Periodicals. Printed materials
(5) Official Publications. A book, pamphlet, or purporting to be newspapers or periodicals.
other publication purporting to be issued by a public (7) Trade Inscriptions and the Like. Inscriptions,
authority. signs, tags, or labels purporting to have been affixed
(6) Newspapers and Periodicals. Printed material in the course of business and indicating ownership,
purporting to be a newspaper or periodical. control, content, ingredients, or origin.
(7) Trade Inscriptions and the Like. An inscrip- (8) Acknowledged Documents. Documents
tion, sign, tag, or label purporting to have been affixed accompanied by a certificate of acknowledgment
in the course of business and indicating origin, owner- executed in the manner provided by law by a notary
ship, or control. public or other officer authorized by law to take
(8) Acknowledged Documents. A document acknowledgments.
accompanied by a certificate of acknowledgment that is (9) Commercial Paper and Related Docu-
lawfully executed by a notary public or another officer ments. Commercial paper, signatures thereon, and
who is authorized to take acknowledgments. documents relating thereto to the extent provided by
(9) Commercial Paper and Related Docu- general commercial law.
ments. Commercial paper, a signature on it, and (10) Presumptions Under Statutes. Any signature,
related documents, to the extent allowed by general document, or other matter declared by statutes to be
commercial law. presumptively or prima facie genuine or authentic.
(10) Presumptions Under a Federal Statute. A sig- (11) Certified Records of Regularly Conducted
nature, document, or anything else that a federal statute Activity. The original or a duplicate of a record of regu-
declares to be presumptively or prima facie genuine or larly conducted activity that would be admissible under
authentic. Rule 803(6) if accompanied by a written certification of
(11) Certified Domestic Records of a Regularly its custodian or other qualified person that the record
Conducted Activity. The original or a copy of a (A) was made at or near the time of the occur-
domestic record that meets the requirements of Rule rence of the matters set forth by, or from information
803(6)(A)–(C), as shown by a certification of the cus-
todian or another qualified person that complies with transmitted by, a person with knowledge of these
a federal statute or a rule prescribed by the Supreme matters;
Court. Before the trial or hearing, the proponent must (B) was kept in the course of the regularly con-
give an adverse party reasonable written notice of the ducted activity; and
intent to offer the record—and must make the record (C) was made by the regularly conducted activity
and certification available for inspection—so that the as a regular practice.
party has a fair opportunity to challenge them. The word “certification” as used in this subsection
(12) Certified Foreign Records of a Regularly means with respect to a domestic record, a written
Conducted Activity. In a civil case, the original or a declaration under oath subject to the penalty of perjury
copy of a foreign record that meets the requirements and, with respect to a record maintained or located in a
of Rule 902(11), modified as follows: the certification, foreign country, a written declaration signed in a coun-
rather than complying with a federal statute or Supreme try which, if falsely made, would subject the maker to
Court rule, must be signed in a manner that, if falsely criminal penalty under the laws of the country. A party
made, would subject the maker to a criminal penalty intending to offer a record into evidence under this
in the country where the certification is signed. The paragraph must provide written notice of that intention
proponent must also meet the notice requirements of to all adverse parties, and must make the record and cer-
Rule 902(11). tification available for inspection sufficiently in advance
(13) Certified Records Generated by an Elec- of their offer into evidence to provide an adverse party
tronic Process or System. A record generated by an with a fair opportunity to challenge them.
electronic process or system that produces an accurate (12) Certified Records Generated by an Electronic
result, as shown by a certification of a qualified person Process or System. A record generated by an electronic
that complies with the certification requirements of process or system that produces an accurate result,
Rule 902(11) or (12). The proponent must also meet as shown by a certification of a qualified person that
the notice requirements of Rule 902(11). complies with the procedural requirements for Rule
(14) Certified Data Copied from an Electronic 902(11) certification. The proponent must also meet
Device, Storage Medium, or File. Data copied from the notice requirements of Rule 902(11).
an electronic device, storage medium, or file, if authen- (13) Certified Data Copied from an Electronic
ticated by a process of digital identification, as shown by Device, Storage Medium, or File. Data copied from
a certification of a qualified person that complies with an electronic device, storage medium, or file, if authen-
the certification requirements of Rule 902(11) or (12). ticated by a process of digital identification, as shown
The proponent also must meet the notice requirements by a certification of a qualified person that complies
of Rule 902(11). with the procedural requirements for Rule 902(11)
certification. The proponent also must meet the notice
requirements of Rule 902(11).
which include court, municipal, and corporate records, see reasonable fees to which he is entitled by means other than the
735 ILCS 5/8-1201, et seq. billing statement.” Id. at ¶34.
For an appellate court decision unrelated to the certification As a follow-up to this decision, on remand plaintiff sought
allowed by IRE 902(11), but that nevertheless has significant attorney fees in the amount of $335,971, and the circuit
effect on computer-stored business records, see Aliano v. Sears, court awarded him attorney fees in the amount of $267,470.
Roebuck & Co., 2015 IL App (1st) 143367. In that case, brought On appeal from that award in Aliano v. Transform SR LLC, as
under the Consumer Fraud and Deceptive Business Practices Successor in Interest to Sears, Roebuck & Co., 2020 IL App (1st)
Act (815 ILCS 505/1 et seq.), the plaintiff was awarded a judg- 172325, the appellate court applied the law-of-the-case doc-
ment of $3.10 based on the defendant’s improper collection trine in holding that its earlier opinion that the computerized
of a sales tax. The plaintiff also was awarded attorney fees in billing statement offered in evidence by the plaintiff in support
the amount of $157,813.53. In explaining his calculation of of his original fee petition was inadmissible and therefore the
those fees, the plaintiff’s attorney, the firm’s sole shareholder, circuit court abused its discretion in admitting the document
testified that an attorney or paralegal who worked on the case into evidence. The appellate court made the same determina-
wrote time sheets that were placed on a shelf in his office. tion of inadmissibility concerning the plaintiff’s revised petition
“Every month or so,” his secretary inputted these handwritten for attorney fees for a later time period. The court also rejected
time sheets into a computer program called Time Slips, after plaintiff’s justification for attorney fees through testimony based
which he compared the time sheets with the itemized entries on refreshed recollection, which the court determined to be
created by the computer program for accuracy, and then he unbelievable and thus against the manifest weight of evidence.
discarded the handwritten time sheets. Because there was no Finally, the appellate court acknowledged that the plaintiff was
other evidence of a record upon which a fee award could be entitled to some attorney fees for obtaining a $3.10 compensa-
based, the propriety of the award in this case was dependent tory damage judgment for a single violation of the Consumer
on the admissibility of the billing statement derived from the Fraud Act, but it remanded the matter to the circuit court for a
computer. Because the records had been admitted under hearing to determine whether its $106,322 award of attorney
the business record exception to the hearsay rule, the issue fees for post-January 1, 2014 was reasonably based on the
addressed by the appellate court was whether they were prop- defendant’s militant defense tactics.
erly admitted under that exception. IRE 902(12) and 902(13)
Explaining the difference between computer-generated To keep pace with current computer technology, two
and computer-stored data, the court held that, when “com- substantially identical federal and Illinois evidence rules have
puter-stored records sought to be admitted are the product been added. The rules are designed to provide a method for
of human input taken from information contained in original establishing foundational requirements for self-authentication
documents, the original documents must be presented in court by the certification of computer-generated and computer-stored
or made available to the opposing party, and the party seeking records and data.
admission of a record of that computer-stored data must be FRE 902(13) and FRE 902(14) became effective on December
able to provide testimony of a competent witness who has seen 1, 2017. IRE 902(12) and IRE 902(13) became effective on
the original documents and can testify to the facts contained September 28, 2018. FRE 902(13) is substantially identical to
therein.” Aliano, at ¶ 31. Because those records were not and IRE 902(12), and FRE 902(14) is substantially identical to IRE
could not be produced, the appellate court reversed the attor- 902(13). The rules’ number designations differ only because
ney fee award and remanded the case to the circuit court to there is a separate federal rule for the certification of foreign
afford the plaintiff “the opportunity to attempt to establish the business records (FRE 902(12)). Because Illinois merged the
rules related to domestic and foreign business records into
a single rule—IRE 902(11)—there was no need for another er-stored documents are not reliable because they are based
rule such as FRE 902(12), which separately addresses the on hearsay; or that information on a hard drive was not placed
certification of foreign business records. Despite their separate there by the opposing party.
designations, it must be stressed that these Illinois and federal The notice requirement in both rules, like the notice required
rules are substantially identical. in Rule 902(11) for authenticating business records through
The added rules create procedures, like that in Rule 902(11), certification, provides adequate opportunity for the opposing
by which parties may authenticate evidence “by a certification party to challenge the certification. This means that the parties
of a qualified person” without the testimony of a witness. will know in advance, through a ruling on a motion in limine if
IRE 902(12) and FRE 902(13) do this for computer-generated necessary, whether a given certification is satisfactory. If it is not
records (as provided in Rule 901(b)(9)). IRE 902(13) and FRE satisfactory, to establish the appropriate evidence for authenti-
902(14) do it for computer-stored records. The rules were cation, a witness will need to be called at the trial or hearing.
proposed based on the recognition that, as is the case with Confronting the Confrontation Clause
business records generally (and as exemplified in allowing the In People v. Coleman, 2014 IL App (5th) 110274, ¶¶ 144-
certification of domestic business records under FRE 902(11) 153, a representative of Google testified at trial that she pro-
and of foreign business records under FRE 902(12) and of both vided the Internet Protocol (IP) address for eight specific mes-
domestic and foreign business records under IRE 902(11)), sages pursuant to a police subpoena and that such addresses
evidence required for authentication is often stipulated to were kept by Google in the normal course of business. Police
before a witness is called or, where testimony is presented, it tracked relevant threatening email messages to the defendant’s
frequently is admitted without challenge. As with FRE 902(11) computer through the unique IP addresses. In response to the
and (12) and IRE 902(11), the rules are designed to avoid the defendant’s contention that his right to confrontation had been
expense and inconvenience of presenting what is frequently violated because no representative of his Internet provider
an unnecessary witness. But note that the adoption of these (AT&T) had testified, the appellate court held that the business
rules does not alter the foundational requirements for evidence record exception to the hearsay rule provided a sufficient
admission. They allow merely the admission of a certification foundation for allowing the nontestimonial IP addresses into
in lieu of a live witness. evidence and for allowing police testimony about them.
The process the rules allow—a certification that must con- In People v. Diggins, 2016 IL App (1st) 142088, over the
tain information that would be sufficient to establish authen- defendant’s objection at his bench trial, the trial court admitted
ticity were that information provided by a foundation witness a certified letter from the Firearm Service Bureau of the Illinois
at trial—is designed merely to establish that the proffered item State Police certifying that the defendant had been denied a
has satisfied the requirements for authenticity. An opponent is firearm owner’s identification card (FOID) based on his having
nonetheless free to object to the admissibility of the proffered a pending felony indictment. Not possessing an FOID was
item on other grounds, including hearsay, relevance, or in a necessary element for the charged offense of aggravated
criminal cases the right to confrontation. And the opponent unlawful use of a weapon (AAUW). See 720 ILCS 5/24-1.6(a)
is free also to present evidence that a computer-generated (3)(C). Applying the holding in Crawford v. Washington, 541
report is erroneous because, for example, although a proffered U.S. 36 (2008), which expressly included “affidavits” in the
spreadsheet is authentic (i.e., that the output came from a class of testimonial statements barred by the confrontation
computer), it is based on unreliable data; or, that although a clause, and further relying on the holding in Melendez-Diaz
webpage containing a defamatory statement is authentic (i.e., v. Massachusetts, 557 U.S. 305 (2009), which had held that
that the webpage was properly retrieved), it was not placed certificates of analysis that reported recovered substances to be
on the webpage by the defendant; or evidence that comput- cocaine and provided their weight were testimonial hearsay,
the appellate court reversed the defendant’s conviction and the requirements for admission of computer-generated business
remanded the case for a new trial, holding that the admission records, and may be relevant to the requirements for the certi-
of the certified letter constituted a violation of the defendant’s fication of such records.
sixth amendment right to confrontation and that the violation In JPMorgan Chase Bank, N.A. v. East-West Logistics, L.L.C.,
did not constitute harmless error. 2014 IL App (1st) 121111, the appellate court held that comput-
Later, in People v. Cox, 2017 IL App (1st) 151536, a case er-generated records of loan documents and a payoff calculator
described as strikingly similar to Diggins in many respects document were admissible under the business records excep-
(Id. at ¶ 80), the appellate court distinguished the holding in tion to the hearsay rule. For foundational purposes the court
Diggins based on the fact that, not only did the defendant not provided these requirements, which it held were satisfied in the
object to the admission of the certified document in the case at case: “(1) the electronic computing equipment is recognized
bar, he expressly did not object to its admission. as standard; (2) the input is entered in the regular course of
Still later, in People v. Stevens, 2018 IL App (4th) 150871, business reasonably close in time to the happening of the event
noting that in the pretrial hearing defense counsel did not object recorded; and (3) the foundation testimony establishes that the
to the admission of the certified report, the appellate court sources of the information, method and time of preparation
applied the doctrine of invited error, distinguishing Diggins indicate its trustworthiness and justify its admission.” JPMorgan
and, like the court in Cox, held that there was no ineffective Chase, at ¶100.
assistance of counsel. In People v. Eagletail, 2014 IL App (1st) 130252, a prosecu-
The takeaway from the above cases, based on the point tion for DUI, the appellate court held that there was a sufficient
that each case provides, is that in a criminal case the evidence foundation for the admission of a computer-generated copy
rule alone may not satisfy the requirements for admission. The of the printout from a breath machine to satisfy the business
confrontation clause must be addressed. Where a defendant records exception to the hearsay rule.
in a criminal case does not object to the admission of certified In People v. Nixon, 2015 IL App (1st) 130132, a conviction
documents, there is no “testimonial statement” problem. But for aggravated criminal sexual assault where the central issue
when a defendant charged with a crime objects to the admis- was whether the DNA of a man whose photo the victim initially
sion of such evidence on confrontation grounds, to satisfy the identified as the offender had been tested, the appellate court
sixth amendment requirement, a witness with knowledge must determined that an inadequate foundation had been laid for
be produced. Because the sixth amendment does not apply to the admission of testimony about a computer-generated busi-
civil cases, there is no confrontation issue in such cases. ness record that showed the DNA testing had in fact occurred
Computer-Generated Records and that no association was reported. Although the appellate
As noted above in discussing both IRE 902(11) and under court ultimately determined that the error was harmless, in
the heading “IRE 902(12) and 902(13),” Illinois has adopted its analysis concerning the propriety of the admission of the
codified rules dealing explicitly with certification of comput- records, it provided the following foundational requirements
erized records. See IREs 902(11) (certified records of regularly for the admission of computer-generated business records:
conducted activity), 902(12) (certified records generated by “In order to satisfy both [IRE 803(6) and section 115-5
an electronic process or system), and 902(13) (certified data of the Code of Criminal Procedure of 1963], the party
copied from an electronic device, storage system, or file). The seeking to admit a business record has the burden of
latter two rules were adopted effective September 28, 2018. laying an adequate foundation for it, which includes
But before that date, Illinois decisions provided the require- showing: (1) that the record was made as a memoran-
ments for the admissibility of such records. Following are dum or record of the act; (2) that the record was made
decisions that predate the codification of IRE 902(12), address in the regular course of business; and (3) that it was the
regular course of the business to make such a record at was the intruder who shot both him and the murder victim.
the time of the act or within a reasonable time thereafter. Present in the kitchen during the offenses was a man with the
[Citations.] surname of Wilson. He testified at trial that he did not know
“In addition to these requirements, Illinois courts defendant and could not identify him in court as the intruder.
have consistently held that, to establish an adequate As a rebuttal witness, a police officer testified about defen-
foundation for a computer-generated record as a busi- dant’s phone records from information he received from Sprint.
ness record, the proponent must make a further showing. His testimony established that, before and after the shootings,
In the case of computer-generated records, a proper Wilson and defendant exchanged numerous phone calls just
foundation additionally requires a showing that: [4] stan- before and after the home invasion and shootings.
dard equipment was used; [5] the particular computer The State also produced evidence that two pieces of dread-
generates accurate records when used appropriately; locked hair were found on the murder victim’s kitchen floor.
[6] the computer was used appropriately; and [7] the They contained DNA that matched defendant and showed that
sources of the information, the method of recording uti- at least one of the hairs had a “stretched” appearance, which
lized, and the time of preparation indicate that the record indicated that the hair had been pulled out of a person’s head
is trustworthy and should be admitted into evidence. and did not just fall out. At trial, defendant conceded he had
[Citations.]” People v. Nixon, 2015 IL App (1st) 130132, dreadlocks on the day of the offenses but explained that he
¶¶110-111 (Internal quotation marks omitted). had been at the “cocaine house” (which he did not know to be
Later, in People v. Kent, 2017 IL App (2d) 140917, where the victim’s home) before the date of the shootings to purchase
the appellate court reversed and remanded a conviction for first crack cocaine (Brown, at ¶15), and that “big clumps of his hair
degree murder based on the improper admission in evidence would fall out on their own because he was not taking care of
of a Facebook post (see the Facebook discussion of Kent in his dreadlocks.” Id. at ¶17.
the commentary heading under IRE 901(b)(4) supra), the court The sole issue on appeal was the propriety of the police offi-
also addressed the “no longer dispositive [issue] of this appeal”: cer’s testimony about the computer-generated phone records
the requirements for a computer-generated business record for he received from Sprint, records that documented phone calls
a phone. Id. at ¶ 126. Adopting and applying all of Nixon’s between Wilson and defendant, and which thus contradicted
requirements for a computer-generated business record, the both their testimony that they did not know each other and
court held they were not satisfied in this case. Id. at ¶129. Wilson’s claim that he had not made the phone calls.
Recently, People v. Brown, 2021 IL App (3rd) 170621, an Although the record on appeal contained a certification
appeal from defendant’s conviction for first degree murder and pursuant to Federal Rules of Evidence 803(6) and 902(11) from
aggravated battery, focused on whether foundational require- Sprint’s keeper of records (and FRE 902(11) is substantively
ments had been satisfied to admit defendant’s computer-gen- identical to IRE 902(12), which had not been codified at the
erated cell phone records, which were kept in the course of time), the appellate court found “there is no clear indication
regularly conducted business. that the records were ever formally admitted into evidence.”
In Brown, the State presented evidence that an armed Id. at ¶22. Defendant objected to the officer’s testimony about
intruder invaded a drug house, demanding money and drugs. the phone records based on a lack of sufficient foundation,
The owner of the house, a drug dealer who was packaging contending that “even if the custodian’s certificate had been
cocaine in his kitchen at the time, struggled with the intruder in admitted, the foundation for admission was still insufficient
his kitchen and was shot under his chin at close range, causing because the custodian’s certificate was missing the second set
his immediate death. The intruder also shot the victim’s uncle in of foundational elements that was required under the law for
the stomach and leg. The uncle testified at trial that defendant a computer-generated record to be admitted into evidence as
a business record” under the holdings in Nixon and Kent. Id. time of preparation indicate that the record is trustworthy and
at ¶ 30. (For clarification, note that “the second set of founda- should be admitted into evidence.” Id.
tional elements” referred to are those provided in the bracketed The Brown court noted that the cell phone records had been
numbers [4] to [7] given by Nixon and provided supra and admitted through the testimony of the police officer without
also provided by Brown infra as elements (1) to (4).) The State “the second set of foundational elements that are required for
responded that the phone records were properly admitted “as the admission of a computer-generated record into evidence
provided for in the amended version of Illinois Rule of Evidence under the business-records exception to the hearsay rule.” Id. at
902, which, according to the State, eliminated the second set of 35. This, the court held, resulted in the trial court’s committing
foundational requirements for a computer-generated record.” “an abuse of discretion by allowing the State to present the
Id. at ¶31. testimony of [the police officer] regarding the content of the
With one justice dissenting based on his belief that error did phone records because the State failed to establish a sufficient
not occur in this case and, if it did, it was harmless, the majority foundation for the admission of the phone records into evi-
of the appellate court panel noted that IRE 902(12) was adopted dence.” Id. It therefore reversed defendant’s convictions and
after the trial in this case and, citing People v. Hunter, 2017 IL remanded the case to the circuit court for trial.
121306, ¶¶ 36-37, it therefore rejected the State’s contention Note that the two sets of foundational requirements provided
that the rule applied, reasoning that even though IRE 902(12) is in Nixon, Kent, and now Brown, predate Illinois’ codification
a procedural rule, it could not be retroactively applied. of IRE 902(12). (In Brown, that is so because the appellate
Stressing the high relevance of the admitted phone evidence court rejected the State’s contention that Rule 902(12) could
in negatively affecting the credibility of Wilson and defendant, be retroactively invoked, without determining whether the rule
both of whom denied they knew each other, on the central would have had an effect on its holding.) Whether the addition
issue of whether defendant was the offender, the majority of IRE 902(12) alters the requirements provided by the three
concluded that, where computer-generated business records cases arguably remains an open question. But until an Illinois
are involved (such as “information that was generated instanta- reviewing court construing IRE 902(12) states otherwise, these
neously by a computer when telephone calls were made to or are the takeaways that should be drawn from the three cases:
from defendant’s cell phone”) (Brown, at ¶ 34), the two sets of • Where a witness with knowledge provides testi-
foundational requirements provided by Nixon and Kent must mony at trial about business records solely under
be established by the proponent of the evidence. IRE 803(6), only the three requirements of that rule
As indicated in the discussion of Nixon and Kent above, the must be satisfied.
first set of foundational requirements are those provided in the • Where a certification of business records not con-
business-records rules in both IRE 803(6) and IRE 902(11) (“(1) nected to computer-generated records is provided
that the record was made as a memorandum or record of the act, at trial under IRE 902(11), only the three require-
(2) that the record was made in the regular course of business, ments of that rule must be satisfied.
and (3) that it was the regular course of the business to make • Where computer-generated business records are
such a record at the time of the act or within a reasonable time involved, the prudent course is to provide both the
thereafter.”) Brown, at ¶34. The second set of requirements are: first set of requirements established by IREs 803(6)
“(1) that standard equipment was used; (2) that the particular and 902(11), as well as the second set of require-
computer generates accurate records when used appropriately; ments established by the three cases discussed
(3) that the computer was used appropriately; and (4) that the above.
sources of the information, the method of recording, and the • Where any computer-generated records (other than
business records) are involved under IRE 902(12),
the prudent course is to provide the second set of requirements established by the three cases.
Rule 903. Subscribing Witness’s Testimony Rule 903. Subscribing Witness’ Testimony
A subscribing witness’s testimony is necessary to Unnecessary
authenticate a writing only if required by the law of the The testimony of a subscribing witness is not nec-
jurisdiction that governs its validity. essary to authenticate a writing unless required by the
laws of the jurisdiction whose laws govern the validity
of the writing.
COMMENTARY
Rule 1001. Definitions That Apply to This Article Rule 1001. Definitions
In this article: For purposes of this article the following definitions
(a) A “writing” consists of letters, words, numbers, are applicable:
or their equivalent set down in any form. (1) Writings and Recordings. “Writings” and
(b) A “recording” consists of letters, words, num- “recordings” consist of letters, words, sounds, or num-
bers, or their equivalent recorded in any manner. bers, or their equivalent, set down by handwriting,
(c) A “photograph” means a photographic image or typewriting, printing, photostating, photographing,
its equivalent stored in any form. magnetic impulse, mechanical or electronic recording,
(d) An “original” of a writing or recording means the or other form of data compilation.
writing or recording itself or any counterpart intended (2) Photographs. “Photographs” include still photo-
to have the same effect by the person who executed or graphs, X-ray films, video tapes, motion pictures and
issued it. For electronically stored information, “orig- similar or other products or processes which produce
inal” means any printout—or other output readable recorded images.
by sight—if it accurately reflects the information. An (3) Original. An “original” of a writing or recording
“original” of a photograph includes the negative or a is the writing or recording itself or any counterpart
print from it. intended to have the same effect by a person executing
(e) A “duplicate” means a counterpart produced by or issuing it. An “original” of a photograph includes
a mechanical, photographic, chemical, electronic, or the negative or any print therefrom. If data are stored
other equivalent process or technique that accurately in a computer or similar device, any printout or other
reproduces the original. output readable by sight, shown to reflect the data
accurately, is an “original.”
(4) Duplicate. A “duplicate” is a counterpart pro-
duced by the same impression as the original, or from
the same matrix, or by means of photography, includ-
ing enlargements and miniatures, or by mechanical or
electronic re-recording, or by chemical reproduction,
or by other equivalent techniques which accurately
reproduces the original.
COMMENTARY
rule resulted in what is now FRE 1001(a) and (b), which guage in IRE 1001(3) without specifically citing it, the supreme
replaced what was formerly designated as FRE 1001(1). court held that a VHS videotape of a DVR recording qualifies
Except for the addition of the phrase “and similar or other as an “original” recording.
products or processes which produce images” at the end of IRE IRE 1001(4) is identical to what was FRE 1001(4) before
1001(2), the rule is identical to what was FRE 1001(2) before the latter’s amendment solely for stylistic purposes effective
the latter’s amendment solely for stylistic purposes effective December 1, 2011. That amendment resulted in what is now
December 1, 2011. That amendment has resulted in what is FRE 1001(e).
now FRE 1001(c). For a relevant Illinois case, see People v. People v. Smith, 2021 IL App (5th) 190066, presents a
Taylor, 2011 IL 110067, ¶¶ 42–43 (citing IRE 1001(2), in hold- lengthy and interesting and different views of the three justices
ing that a VHS videotape of a DVR recording qualifies as an in addressing both the best evidence rule and the admissibility
“original” recording). of video recordings pursuant to the supreme court’s decision
IRE 1001(3) is identical to what was FRE 1001(3) before in People v. Taylor, 2011 IL 110067. For a discussion of that
the latter’s amendment solely for stylistic purposes effective case, see the heading Application of Taylor under Author’s
December 1, 2011. That amendment resulted in what is now Commentary on Ill. R. Evid. 104(a).
FRE 1001(d). In Taylor, at ¶¶ 42-43, though employing lan-
COMMENTARY
COMMENTARY
Rule 1004. Admissibility of Other Evidence of Rule 1004. Admissibility of Other Evidence of
Content Contents
An original is not required and other evidence of The original is not required and other evidence of
the content of a writing, recording, or photograph is the contents of a writing, recording, or photograph is
admissible if: admissible if
(a) all the originals are lost or destroyed, and not by (1) Originals Lost or Destroyed. All originals are
the proponent acting in bad faith; lost or have been destroyed, unless the proponent lost
(b) an original cannot be obtained by any available or destroyed them in bad faith; or
judicial process; (2) Original Not Obtainable. No original can be
(c) the party against whom the original would be obtained by any available judicial process or procedure;
offered had control of the original; was at that time put or
on notice, by pleadings or otherwise, that the original (3) Original in Possession of Opponent. At a time
would be a subject of proof at the trial or hearing; and when an original was under the control of the party
fails to produce it at the trial or hearing; or against whom offered, that party was put on notice, by
(d) the writing, recording, or photograph is not the pleadings or otherwise, that the contents would be
closely related to a controlling issue. a subject of proof at the hearing; or
(4) Collateral Matters. The writing, recording, or
photograph is not closely related to a controlling issue.
COMMENTARY
Rule 1005. Copies of Public Records to Prove Rule 1005. Public Records
Content The contents of an official record, or of a document
The proponent may use a copy to prove the content of authorized to be recorded or filed and actually recorded
an official record—or of a document that was recorded or filed, including data compilations in any form, if
or filed in a public office as authorized by law—if these otherwise admissible, may be proved by copy, certified
conditions are met: the record or document is other- as correct in accordance with Rule 902 or testified to be
wise admissible; and the copy is certified as correct in correct by a witness who has compared it with the origi-
accordance with Rule 902(4) or is testified to be correct nal. If a copy which complies with the foregoing cannot
by a witness who has compared it with the original. If be obtained by the exercise of reasonable diligence, then
no such copy can be obtained by reasonable diligence, other evidence of the contents may be given.
then the proponent may use other evidence to prove
the content.
COMMENTARY
COMMENTARY
Rule 1007. Testimony or Statement of a Party to Rule 1007. Testimony or Written Admission of
Prove Content Party
The proponent may prove the content of a writing, Contents of writings, recordings, or photographs
recording, or photograph by the testimony, deposition, may be proved by the testimony or deposition of the
or written statement of the party against whom the party against whom offered or by that party’s written
evidence is offered. The proponent need not account admission, without accounting for the nonproduction
for the original. of the original.
COMMENTARY
Rule 1008. Functions of the Court and Jury Rule 1008. Functions of Court and Jury
Ordinarily, the court determines whether the propo- When the admissibility of other evidence of contents
nent has fulfilled the factual conditions for admitting of writings, recordings, or photographs under these rules
other evidence of the content of a writing, recording, depends upon the fulfillment of a condition of fact, the
or photograph under Rule 1004 or 1005. But in a jury question whether the condition has been fulfilled is
trial, the jury determines—in accordance with Rule ordinarily for the court to determine in accordance with
104(b)—any issue about whether: the provisions of Rule 104(a). However, when an issue
(a) an asserted writing, recording, or photograph is raised (a) whether the asserted writing ever existed, or
ever existed; (b) whether another writing, recording, or photograph
(b) another one produced at the trial or hearing is produced at the trial is the original, or (c) whether other
the original; or evidence of contents correctly reflects the contents, the
(c) other evidence of content accurately reflects the issue is for the trier of fact to determine as in the case of
content. other issues of fact.
COMMENTARY
COMMENTARY
Recently, in People v. Brooks, 2021 IL App (4th) 200573, and then to disregard it because, in the court’s judgment, it is
the appellate court quoted this Commentary’s first paragraph unreliable.” Id. at ¶58. (Emphasis in original).
(see Brooks, at ¶ 57), in further support of its holding that the It should be noted that, just before the publication of Brooks,
Illinois Rules of Evidence do not apply to second and third- in People v. Carter, 2021 IL App (4th)180581, the appellate
stage postconviction proceedings. The ultimate result in Brooks court had similarly held that “[a]t a third-stage hearing,‘the
was the reversal and remand of the trial court’s dismissal of sec- trial court acts as a fact-finder, making credibility determina-
ond-stage proceedings, which alleged attorney ineffectiveness tions and weighing the evidence.’” Id. at ¶ 58. In Carter, the
for the attorney’s failure to investigate a claim of a woman who appellate court held that the trial court’s findings, based on
claimed to have received a text message from another person evidence presented at third stage proceedings, were not against
who claimed that he had killed the victim. Reasoning that the the weight of the evidence in denying the defendant’s claim of
text message was admissible in the postconviction proceedings actual innocence in the postconviction proceeding.
despite its hearsay nature, the appellate court held that the trial Note that in People v. Gibson, 2018 IL App (1st) 162177,
court erred in failing to accept as true those hearsay allega- ¶¶ 127-140, the appellate court equated the hearings required
tions, which were provided by affidavits from the attorney’s by the Post-Conviction Act with the circuit court hearing
investigator as well as the defendant. The appellate court’s required by the Illinois Torture Inquiry and Relief Commission
reversal was based on the principles that the rules of evidence Act (TIRC, see 775 ILCS 40/1, et seq.). It thus concluded that
do not apply in postconviction proceedings and that hearsay the rules of evidence do not apply at an evidentiary hearing on
evidence in second-stage proceedings should be accepted as a claim referred from the TIRC. Referring to section 50 of the
true if the petitioner shows a constitutional violation, unless the TIRC Act (775 ILCS 40/50) “as a new species of postconviction
petitioner’s allegations are affirmatively rebutted by the record. proceeding” (Gibson, at ¶ 135), the appellate court held that
However, regarding the evidentiary hearing in third-stage pro- the Illinois Rules of Evidence do not apply to TIRC, and the cir-
cedures, Brooks clarified that, unlike in first and second-stage cuit court had thus erred in rejecting the defendant’s proffered
proceeding, at a third-stage hearing, “the trial court acts as a hearsay evidence on that court’s stated basis that the defendant
fact-finder, making credibility determinations and weighing needed to show that the evidence fell within a recognized
the evidence.” Id. at ¶ 47. Accordingly, the appellate court exception to the hearsay rule.
concluded: Amendments Deleting Portions of IRE 1101(b)(3)
“[t]he court may admit the evidence in question As originally codified, IRE 1101(b)(3) included as an excep-
and then mostly—or perhaps even entirely—disre- tion to the application of the rules of evidence “sentencing,
gard it, deeming it unreliable or simply not believ- or granting or revoking probation, conditional discharge or
able. And in making that determination, the trial supervision.” The exception that related to “granting or revok-
court is free to consider all of the other evidence ing probation” was stricken by the supreme court effective
presented at the third-stage proceeding, including January 6, 2015. That was done for two reasons. First, the word
all of the evidence that was originally presented at “granting” was unnecessary as it was preceded by the word
the defendant’s trial at which he was convicted.” “sentencing,” a word that encompasses the grant of probation
Id. at ¶56. and it thus was redundant. That January 6, 2015 amendment,
Brooks went on to emphatically state that, though the evi- however, resulted in the unintentional retention of the phrase
dence rules do not apply to third-stage evidentiary proceedings, “sentencing, conditional discharge or supervision.” Effective
the “part of a trial court’s discretion at a third-stage evidentiary September 17, 2019, the supreme court struck the words
hearing includes the authority to admit questionable evidence following “sentencing.” As in the case of the earlier amend-
ment, that amendment occurred because the dispositions of
conditional discharge and supervision are incorporated in the quent criminal act asserted in a formal criminal charge.” Most
concept of sentencing, thus rendering those words redundant likely, in cases involving technical violations, the statute will be
and therefore superfluous. invoked, while, in cases involving revocation based on criminal
The second reason for the January 6, 2015 amendment, conduct, the State will be required to abide by evidence rules,
which deleted the exception for the rules of evidence for presenting witnesses with first-hand knowledge rather than
probation revocation proceedings, was that the exception relying on hearsay to satisfy its burden of proof. As in federal
likely would have represented a substantive change in Illinois proceedings, for technical violations of probation, conditional
law. See, for example, People v. Renner, 321 Ill. App. 3d 1022 discharge, and supervision, “reliability” of information should
(2001), where the appellate court denied the State’s appeal be the standard in Illinois.
from a trial court ruling that granted a probationer’s motion Examples of Statutory Exceptions from the Rules of Evidence
in limine to exclude a certified laboratory report of results of Regarding IRE 1101(b)(3)’s provision that the rules of evi-
the probationer’s urine test at her probation revocation hearing. dence do not apply to “proceedings with respect to release on
The appellate court stated that “hearsay evidence is not compe- bail or otherwise,” see section 110-5(a) of the Code of Criminal
tent evidence in probation revocation proceedings; therefore, Procedure of 1963 (725 ILCS 5/110-5(a)), which provides that
hearsay testimony is not competent to sustain the State’s burden “[a]ll evidence shall be admissible if it is relevant and reliable
of proof....” Renner, 321 Ill. App. 3d, at 1026. regardless of whether it would be admissible under the rules
Note, however, that FRE 1101(d)(3), both before its amend- of evidence applicable at criminal trials.” See also People v.
ment effective December 1, 2011 and since, provides that the Simmons, 2019 IL App (1st) 191253, ¶12 (citing the statute and
Federal Rules of Evidence do not apply in probation revocation holding that “hearsay evidence is liberally permitted” when a
proceedings; and that the current version of FRE 1101(d)(3) court determines the amount of bail and conditions of release).
(effective as of December 1, 2011) adds revocation of “super- Though IRE 1101(b) does not address it, in a “discharge hear-
vised release.” Thus, in federal proceedings, reliable hearsay ing” (a hearing to determine the sufficiency of the evidence that
evidence is admissible. See, e.g., U.S. v. Pratt, 52 F.3d 671, is demanded by an unfit defendant in a criminal proceeding or
675 (7th Cir. 1995) (citing FRE 1103(d)(3) in allowing hearsay one that is held for a defendant who cannot become fit to stand
testimony that satisfied the reliability requirement). trial), section 104-25(a) of the Criminal Code of Procedure of
Note also that section 115-5(c)(2) of the Code of Criminal 1963 allows hearsay evidence for proof of “secondary matters”:
Procedure of 1963 (725 ILCS 5/115-5(c)(2)) allows admissibil- “The court may admit hearsay or affidavit evidence
ity of investigative records (pursuant to the business records on secondary matters such as testimony to establish
exception to the hearsay rule) for “technical violations” of the chain of possession of physical evidence, lab-
probation and supervision (and presumably of conditional oratory reports, authentication of transcripts taken
discharge). It defines a “technical violation” as “a breach of a by official reporters, court and business records,
sentencing order but does not include an allegation of a subse- and public documents.” 725 ILCS 5/104-25(a).
Author’s Commentary on Ill. R. Evid. 1101(c)
IRE 1101(c), which provides that the rules of evidence apply sentence of IRE 1101(b). There is no federal counterpart to IRE
in small claims actions “subject to the application of Supreme 1101(c) because there are no federal small claims proceedings.
Court Rule 286(b),” differs from both the amended and current Illinois Supreme Court Rule 286(b), which is referenced in
versions of FRE 1101(c). The federal rule provides that the “rules IRE 1101(c), permits the trial court to “adjudicate the dispute at
on privilege apply to all stages of a case or proceeding.” The an informal hearing” in small claims cases. It allows the court
Illinois rules do the same by providing for privilege through the to relax the rules of procedure and the rules of evidence, and
incorporation of that protection in the parenthetical in the first it also allows the court to “conduct or participate in direct and
cross-examination of any witness or party.” Rule 286(b) in its and the rules of evidence. The court may call any
entirety reads as follows: person present at the hearing to testify and may
“In any small claims case, the court may, on its conduct or participate in direct and cross-exam-
own motion or on motion of any party, adjudicate ination of any witness or party. At the conclusion
the dispute at an informal hearing. At the informal of the hearing the court shall render judgment and
hearing all relevant evidence shall be admissible explain the reasons therefor to all parties.”
and the court may relax the rules of procedure
Author’s Commentary on Non‑Adoption of Fed. R. Evid. 1101(d)
There is no separate IRE 1101(d). As pointed out above in FRE 1101(d) are incorporated into and are nearly identical to
the Author’s Commentary on IRE 1101(b), the provisions of IRE 1101(b).
Author’s Commentary on Non‑Adoption of Fed. R. Evid. 1101(e)
FRE 1101(e), in its amended form effective December 1, because it applied specifically to federal proceedings. The topic
2011, deleted the specific references to numerous statutes and addressed by current FRE 1101(e) (that a statue or a supreme
rules that were provided in its predecessor version. When the court rule may supply a rule of evidence), is addressed in IRE
Illinois rules were adopted, the federal rule was not adopted 101.
COMMENTARY
COMMENTARY
Sec. 115‑7.3. Evidence in certain cases. (c) In weighing the probative value of the evi-
dence against undue prejudice to the defendant, the
(a) This Section applies to criminal cases in court may consider:
which:
(1) the proximity in time to the charged or
(1) the defendant is accused of predatory crim- predicate offense;
inal sexual assault of a child, aggravated criminal
sexual assault, criminal sexual assault, aggravated (2) the degree of factual similarity to the
criminal sexual abuse, criminal sexual abuse, child charged or predicate offense; or
pornography, aggravated child pornography,
criminal transmission of HIV, or child abduction (3) other relevant facts and circumstances.
as defined in paragraph (10) of subsection (b) of
Section 10-5 of the Criminal Code of 1961 or the (d) In a criminal case in which the prosecution
Criminal Code of 2012; intends to offer evidence under this Section, it must
disclose the evidence, including statements of wit-
(2) the defendant is accused of battery, aggra- nesses or a summary of the substance of any testi-
vated battery, first degree murder, or second de- mony, at a reasonable time in advance of trial, or
gree murder when the commission of the offense during trial if the court excuses pretrial notice on
involves sexual penetration or sexual conduct as good cause shown.
defined in Section 11-0.1 of the Criminal Code
of 2012; or (e) In a criminal case in which evidence is offered
under this Section, proof may be made by specific
(3) the defendant is tried or retried for any instances of conduct, testimony as to reputation, or
of the offenses formerly known as rape, deviate testimony in the form of an expert opinion, except
sexual assault, indecent liberties with a child, or that the prosecution may offer reputation testimony
aggravated indecent liberties with a child. only after the opposing party has offered that testi-
mony.
(b) If the defendant is accused of an offense set
forth in paragraph (1) or (2) of subsection (a) or the (f ) In prosecutions for a violation of Section 10-
defendant is tried or retried for any of the offenses 2, 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-
set forth in paragraph (3) of subsection (a), evidence 3.05, 12-4, 12-13, 12-14, 12-14.1, 12-15, 12-16, or
of the defendant’s commission of another offense 18-5 of the Criminal Code of 1961 or the Criminal
or offenses set forth in paragraph (1), (2), or (3) of Code of 2012, involving the involuntary delivery of
subsection (a), or evidence to rebut that proof or an a controlled substance to a victim, no inference may
inference from that proof, may be admissible (if that be made about the fact that a victim did not consent
evidence is otherwise admissible under the rules of to a test for the presence of controlled substances.
evidence) and may be considered for its bearing on
any matter to which it is relevant. (Source: P.A. 95‑892, eff. 1‑1‑09; P.A. 96-1551, Art. 1,
§ 965, eff. 7-1-11; P.A. 97-1109, § 15-60, eff. 1-1-13;
P.A. 97-1150, § 635, eff. 1-25-13; P.A. 98-160, § 5,
eff. 1-1-14.)
345
Appendix B
725 ILCS 5/115-7.4. Evidence in domestic violence cases.
Sec. 115‑7.4. Evidence in domestic violence cases. (3) other relevant facts and circumstances.
(a) In a criminal prosecution in which the defen- (c) In a criminal case in which the prosecution
dant is accused of an offense of domestic violence intends to offer evidence under this Section, it must
as defined in paragraphs (1) and (3) of Section 103 disclose the evidence, including statements of wit-
of the Illinois Domestic Violence Act of 1986, or nesses or a summary of the substance of any testi-
first degree murder or second degree murder when mony, at a reasonable time in advance of trial, or
the commission of the offense involves domestic during trial if the court excuses pretrial notice on
violence, evidence of the defendant’s commission of good cause shown.
another offense or offenses of domestic violence is
admissible, and may be considered for its bearing on (d) In a criminal case in which evidence is offered
any matter to which it is relevant. under this Section, proof may be made by specific
instances of conduct, testimony as to reputation, or
(b) In weighing the probative value of the evi- testimony in the form of an expert opinion, except
dence against undue prejudice to the defendant, the that the prosecution may offer reputation testimony
court may consider: only after the opposing party has offered that testi-
mony.
(1) the proximity in time to the charged or
predicate offense; (Source: P.A. 95‑360, eff. 8‑23‑07; P.A. 97-1036, § 5,
eff. 8-20-12.)
(2) the degree of factual similarity to the
charged or predicate offense; or
Sec. 103. Definitions. For the purposes of this Act, the following terms shall have the following meanings:
(1) “Abuse” means physical abuse, harassment, intimidation of a dependent, interference with personal
liberty or willful deprivation but does not include reasonable direction of a minor child by a parent or person
in loco parentis.
* * *
* * *
346
Appendix C
725 ILCS 5/115-20. Evidence of prior conviction.
Sec. 115‑20. Evidence of prior conviction. (1) the proximity in time to the charged or
predicate offense;
(a) Evidence of a prior conviction of a defendant
for domestic battery, aggravated battery committed (2) the degree of factual similarity to the
against a family or household member as defined charged or predicate offense; or
in Section 112A‑3, stalking, aggravated stalking, or
violation of an order of protection is admissible in a (3) other relevant facts and circumstances.
later criminal prosecution for any of these types of
offenses when the victim is the same person who was (d) In a criminal case in which the prosecution
the victim of the previous offense that resulted in intends to offer evidence under this Section, it must
conviction of the defendant. disclose the evidence, including statements of wit-
nesses or a summary of the substance of any testi-
(b) If the defendant is accused of an offense set mony, at a reasonable time in advance of trial, or
forth in subsection (a) or the defendant is tried or during trial if the court excuses pretrial notice on
retried for any of the offenses set forth in subsec- good cause shown.
tion (a), evidence of the defendant’s conviction for
another offense or offenses set forth in subsection (e) In a criminal case in which evidence is offered
(a) may be admissible (if that evidence is otherwise under this Section, proof may be made by specific
admissible under the rules of evidence) and may be instances of conduct as evidenced by proof of con-
considered for its bearing on any matter to which it viction, testimony as to reputation, or testimony in
is relevant if the victim is the same person who was the form of an expert opinion, except that the prose-
the victim of the previous offense that resulted in cution may offer reputation testimony only after the
conviction of the defendant. opposing party has offered that testimony.
(c) In weighing the probative value of the evi- (Source: P.A. 90‑387, eff. 1‑1‑98.)
dence against undue prejudice to the defendant, the
court may consider:
347
Appendix D
735 ILCS 5/8-1901. Admission of liability ‑ Effect.
Sec. 8‑1901. Admission of liability ‑ Effect. The ity in any action of any kind in any court or before any
providing of, or payment for, medical, surgical, hospi- commission, administrative agency, or other tribunal
tal, or rehabilitation services, facilities, or equipment in this State, except at the instance of the person or per-
by or on behalf of any person, or the offer to provide, sons so making any such provision, payment or offer.
or pay for, any one or more of the foregoing, shall not
be construed as an admission of any liability by such (Source: P.A. 82-280, § 8-1901, eff. 7-1-82; P.A. 94-
person or persons. Testimony, writings, records, reports 677, § 330, eff. 8-25-05 (held unconstitutional); re-
or information with respect to the foregoing shall not enacted by P.A. 97-1145, § 5, eff. 1-18-13.)
be admissible in evidence as an admission of any liabil-
348
Appendix E
725 ILCS 5/115-7. Prior sexual activity or reputation as evidence.
Sec. 115‑7. Prior sexual activity or reputation as after an offer of proof has been made at a hearing to be
evidence. held in camera in order to determine whether the de-
fense has evidence to impeach the witness in the event
a. In prosecutions for predatory criminal sexual that prior sexual activity with the defendant is denied.
assault of a child, aggravated criminal sexual assault, Such offer of proof shall include reasonably specific in-
criminal sexual assault, aggravated criminal sexual formation as to the date, time and place of the past
abuse, criminal sexual abuse, or criminal transmission sexual conduct between the alleged victim or corrobo-
of HIV; and in prosecutions for battery and aggravated rating witness under Section 115-7.3 of this Code and
battery, when the commission of the offense involves the defendant. Unless the court finds that reasonably
sexual penetration or sexual conduct as defined in Sec- specific information as to date, time or place, or some
tion 11-0.1 of the Criminal Code of 2012;1 and with combination thereof, has been offered as to prior sexual
the trial or retrial of the offenses formerly known as activity with the defendant, counsel for the defendant
rape, deviate sexual assault, indecent liberties with a shall be ordered to refrain from inquiring into prior
child, and aggravated indecent liberties with a child, sexual activity between the alleged victim or corrobo-
the prior sexual activity or the reputation of the alleged rating witness under Section 115-7.3 of this Code and
victim or corroborating witness under Section 115-7.3 the defendant. The court shall not admit evidence un-
of this Code is inadmissible except (1) as evidence con- der this Section unless it determines at the hearing that
cerning the past sexual conduct of the alleged victim the evidence is relevant and the probative value of the
or corroborating witness under Section 115-7.3 of this evidence outweighs the danger of unfair prejudice. The
Code with the accused when this evidence is offered by evidence shall be admissible at trial to the extent an
the accused upon the issue of whether the alleged vic- order made by the court specifies the evidence that may
tim or corroborating witness under Section 115-7.3 of be admitted and areas with respect to which the alleged
this Code consented to the sexual conduct with respect victim or corroborating witness under Section 115-7.3
to which the offense is alleged; or (2) when constitu- of this Code may be examined or cross examined.
tionally required to be admitted.
(Source: P.A. 89‑428, eff. 12‑13‑95; 89‑462, eff.
b. No evidence admissible under this Section shall 5‑29‑96; 90‑132, eff. 1‑1‑98., P.A. 96-1551, eff. 7-1-
be introduced unless ruled admissible by the trial judge 11; P.A. 97-1150, eff. 1-25-13.)
349
Appendix F
735 ILCS 5/8-2801. Admissibility of evidence; prior sexual activity or reputation.
Sec. 8‑2801. Admissibility of evidence; prior son accused of the sexual misconduct offered
sexual activity or reputation. by the accused to prove consent by the victim.
(1) evidence offered to prove that any victim (A) file a written motion at least 14 days
engaged in other sexual behavior; or before trial specifically describing the evidence
and stating the purpose for which it is offered
(2) evidence offered to prove any victim’s sex- unless the court, for good cause requires a dif-
ual predisposition. ferent time for filing or permits filing during
trial; and
(b) Exceptions.
(B) serve the motion on all parties and noti-
(1) In a civil case, the following evidence is ad- fy the victim or, when appropriate, the victim’s
missible, if otherwise admissible under this Act: guardian or representative.
(A) evidence of specific instances of sexual (2) Before admitting evidence under this Sec-
behavior by the victim offered to prove that a tion the court must conduct a hearing in camera
person other than the accused was the source of and afford the victim and parties a right to attend
semen, injury, or other physical evidence; and and be heard. The motion, related papers, and the
record of the hearing must be sealed and remain
(B) evidence of specific instances of sexual under seal unless the court orders otherwise.
behavior by the victim with respect to the per-
(Source: P.A. 96‑307, eff. 1‑1‑10.)
350
Appendix G
705 ILCS 405/5-150. Admissibility of evidence and adjudications in other proceedings.
Sec. 5‑150. Admissibility of evidence and (d) in civil proceedings concerning causes of
adjudications in other proceedings. action arising out of the incident or incidents
which initially gave rise to the proceedings under
(1) Evidence and adjudications in proceedings this Act.
under this Act shall be admissible:
(2) No adjudication or disposition under this
(a) in subsequent proceedings under this Act Act shall operate to disqualify a minor from subse-
concerning the same minor; or quently holding public office nor shall operate as a
forfeiture of any right, privilege or right to receive
(b) in criminal proceedings when the court is any license granted by public authority.
to determine the amount of bail, fitness of the de-
fendant or in sentencing under the Unified Code (3) The court which adjudicated that a minor has
of Corrections; or committed any offense relating to motor vehicles
prescribed in Sections 4‑102 and 4‑103 of the Illi-
(c) in proceedings under this Act or in crimi- nois Vehicle Code shall notify the Secretary of State
nal proceedings in which anyone who has been of that adjudication and the notice shall constitute
adjudicated delinquent under Section 5‑105 is to sufficient grounds for revoking that minor’s driver’s
be a witness including the minor or defendant if license or permit as provided in Section 6‑205 of the
he or she testifies, and then only for purposes of Illinois Vehicle Code; no minor shall be considered
impeachment and pursuant to the rules of evi- a criminal by reason thereof, nor shall any such ad-
dence for criminal trials; or judication be considered a conviction.
351
Appendix H
735 ILCS 5/2-1102. Examination of adverse party or agent.
Sec. 2‑1102. Examination of adverse party or for the examination is not concluded thereby but may
agent. Upon the trial of any case any party thereto or rebut the testimony thus given by countertestimony
any person for whose immediate benefit the action is and may impeach the witness by proof of prior incon-
prosecuted or defended, or the officers, directors, man- sistent statements.
aging agents or foreman of any party to the action, may
be called and examined as if under cross‑examination (Source: P.A. 82‑280, eff. 7-1-82.)
at the instance of any adverse party. The party calling
Rule 238. Impeachment of Witnesses; Hostile (b) If the court determines that a witness is hos-
Witnesses. tile or unwilling, the witness may be examined by
the party calling the witness as if under cross-exam-
(a) The credibility of a witness may be attacked ination.
by any party, including the party calling the witness.
Amended February 19, 1982, effective April 1, 1982;
amended April 11, 2001, effective immediately.
352
Appendix I
725 ILCS 5/115-10.1. Admissibility of Prior Inconsistent Statements.
Sec. 115‑10.1. Admissibility of Prior Inconsis- (A) the statement is proved to have been
tent Statements. In all criminal cases, evidence of a written or signed by the witness, or
statement made by a witness is not made inadmissible
by the hearsay rule if (B) the witness acknowledged under oath
the making of the statement either in his tes-
(a) the statement is inconsistent with his testi- timony at the hearing or trial in which the ad-
mony at the hearing or trial, and mission into evidence of the prior statement
is being sought, or at a trial, hearing, or other
(b) the witness is subject to cross‑examination proceeding, or
concerning the statement, and
(C) the statement is proved to have been
(c) the statement‑‑ accurately recorded by a tape recorder, video-
tape recording, or any other similar electronic
(1) was made under oath at a trial, hearing, or means of sound recording.
other proceeding, or
Nothing in this Section shall render a prior inconsis-
(2) narrates, describes, or explains an event tent statement inadmissible for purposes of impeach-
or condition of which the witness had personal ment because such statement was not recorded or oth-
knowledge, and erwise fails to meet the criteria set forth herein.
353
Appendix J
725 ILCS 5/115-12. Substantive Admissibility of Prior Identification.
Sec. 115‑12. Substantive Admissibility of Prior the statement is one of identification of a person made
Identification. A statement is not rendered inadmis- after perceiving him.
sible by the hearsay rule if (a) the declarant testifies at
the trial or hearing, and (b) the declarant is subject to (Source: P.A. 83‑367, eff. 1-1-84.)
cross‑examination concerning the statement, and (c)
354
Appendix K
725 ILCS 5/115-13. Hearsay exception; statements by victims of sex offenses to medical personnel.
[Effective prior to July 1, 2011:] [Effective July 1, 2011 and as amended January 25, 2013 (with
portions added on July 1, 2011 underlined):]
Sec. 115‑13. Hearsay exception; statements by
victims of sex offenses to medical personnel. In Sec. 115-13. Hearsay exception; statements by
a prosecution for violation of Section 12‑13, 12‑14, victims of sex offenses to medical personnel. In a
12‑14.1, 12‑15 or 12‑16 of the “Criminal Code of prosecution for violation of Section 11-1.20, 11-1.30,
1961”, statements made by the victim to medical per- 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 12-14.1,
sonnel for purposes of medical diagnosis or treatment 12-15 or 12-16 of the Criminal Code of 1961 or the
including descriptions of the cause of symptom, pain Criminal Code of 2012, statements made by the victim
or sensations, or the inception or general character of to medical personnel for purposes of medical diagno-
the cause or external source thereof insofar as reason- sis or treatment including descriptions of the cause of
ably pertinent to diagnosis or treatment shall be admit- symptom, pain or sensations, or the inception or gen-
ted as an exception to the hearsay rule. eral character of the cause or external source thereof in-
sofar as reasonably pertinent to diagnosis or treatment
shall be admitted as an exception to the hearsay rule.
355
Appendix L
725 ILCS 5/115-5. Business records as evidence.
Sec. 115‑5. Business records as evidence. as admissible in evidence as the original itself in any
proceeding whether the original is in existence or not
(a) Any writing or record, whether in the form and an enlargement or facsimile of such reproduc-
of an entry in a book or otherwise, made as a mem- tion is likewise admissible in evidence if the original
orandum or record of any act, transaction, occur- reproduction is in existence and available for inspec-
rence, or event, shall be admissible as evidence of tion under direction of court. The introduction of
such act, transaction, occurrence, or event, if made a reproduced record, enlargement, or facsimile does
in regular course of any business, and if it was the not preclude admission of the original. This Section
regular course of such business to make such memo- shall not be construed to exclude from evidence any
randum or record at the time of such act, transac- document or copy thereof which is otherwise admis-
tion, occurrence, or event or within a reasonable sible under the rules of evidence.
time thereafter.
(c) No writing or record made in the regular
All other circumstances of the making of such course of any business shall become admissible as
writing or record, including lack of personal knowl- evidence by the application of this Section if:
edge by the entrant or maker, may be shown to affect
its weight, but such circumstances shall not affect its (1) Such writing or record has been made by
admissibility. anyone in the regular course of any form of hos-
pital or medical business; or
The term “business,” as used in this Section, in-
cludes business, profession, occupation, and calling (2) Such writing or record has been made by
of every kind. anyone during an investigation of an alleged of-
fense or during any investigation relating to pend-
(b) If any business, institution, member of a ing or anticipated litigation of any kind, except
profession or calling, or any department or agency during a hearing to revoke a sentence of proba-
of government, in the regular course of business or tion or conditional discharge or an order of court
activity has kept or recorded any memorandum, supervision that is based on a technical violation
writing, entry, print, representation or combination of a sentencing order when the hearing involves a
thereof, of any act, transaction, occurrence, or event, probationer or defendant who has transferred or
and in the regular course of business has caused any moved from the county having jurisdiction over
or all of the same to be recorded, copied, or repro- the original charge or sentence. For the purposes
duced by any photographic, photostatic, microfilm, of this subsection (c), “technical violation” means
micro‑card, miniature photographic, optical imag- a breach of a sentencing order but does not in-
ing, or other process which accurately reproduces or clude an allegation of a subsequent criminal act
forms a medium for so reproducing the original, the asserted in a formal criminal charge.
original may be destroyed in the regular course of
business unless its preservation is required by law. (d) Upon request of the moving party and with
Such reproduction, when satisfactorily identified, is reasonable notice given to the opposing party, in a
356
criminal prosecution in which the defendant is ac- ject to cross-examination, in open court by means of
cused of an offense under Article 16 or 17 of the a contemporaneous audio and video transmission
Criminal Code of 1961 or the Criminal Code of from outside of this State.
2012, the court may, after a hearing, for good cause
and upon appropriate safeguards, permit live foun- (Source: P.A. 91‑548, eff. 1‑1‑00; P.A. 98-579, eff. 1-1-
dational testimony business records as evidence, sub- 14.)
Rule 236. Admission of Business Records in personal knowledge by the entrant or maker, may
Evidence be shown to affect its weight, but shall not affect
its admissibility. The term “business,” as used in this
(a) Any writing or record, whether in the form of rule, includes business, profession, occupation, and
any entry in a book or otherwise, made as a mem- calling of every kind.
orandum or record of any act, transaction, occur-
rence, or event, shall be admissible as evidence of (b) Although police accident reports may other-
the act, transaction, occurrence, or event, if made wise be admissible in evidence under the law, subsec-
in the regular course of any business, and if it was tion (a) of this rule does not allow such writings to
the regular course of the business to make such a be admitted as a record or memorandum made in
memorandum or record at the time of such an act, the regular course of business.
transaction, occurrence, or event or within a reason-
able time thereafter. All other circumstances of the Amended August 9, 1983, effective October 1, 1983;
making of the writing or record, including lack of amended April 1, 1992, effective August 1, 1992.
357
Appendix M
725 ILCS 5/115-5.1. Records of the coroner’s medical or laboratory examiner as evidence.
Sec. 115‑5.1. Records of the coroner’s medical of death of the person to whom it relates. The records
or laboratory examiner as evidence. In any civil or referred to in this Section shall be limited to the records
criminal action the records of the coroner’s medical or of the results of post‑mortem examinations of the find-
laboratory examiner summarizing and detailing the ings of autopsy and toxicological laboratory examina-
performance of his or her official duties in performing tions.
medical examinations upon deceased persons or autop-
sies, or both, and kept in the ordinary course of busi- Persons who prepare reports or records offered in
ness of the coroner’s office, duly certified by the county evidence hereunder may be subpoenaed as witnesses
coroner or chief supervisory coroner’s pathologist or in civil or criminal cases upon the request of either
medical examiner, shall be received as competent evi- party to the cause. However, if such person is dead,
dence in any court of this State, to the extent permit- the county coroner or a duly authorized official of the
ted by this Section. These reports, specifically including coroner’s office may testify to the fact that the examin-
but not limited to the pathologist’s protocol, autopsy ing pathologist, toxicologist or other medical or labo-
reports and toxicological reports, shall be public docu- ratory examiner is deceased and that the offered report
ments and thereby may be admissible as prima facie or record was prepared by such deceased person. The
evidence of the facts, findings, opinions, diagnoses and witness must further attest that the medical report or
conditions stated therein. record was prepared in the ordinary and usual course
of the deceased person’s duty or employment in confor-
A duly certified coroner’s protocol or autopsy report, mity with the provisions of this Section.
or both, complying with the requirements of this Sec-
tion may be duly admitted into evidence as an excep- (Source: P.A. 82‑783, eff. 7-13-82.)
tion to the hearsay rule as prima facie proof of the cause
358
Appendix N
725 ILCS 5/115-10.6. Hearsay exception for intentional murder of a witness. [Repealed]
Sec. 115-10.6. Hearsay exception for intentional (e) The admissibility of the statements shall be
murder of a witness. [Repealed] determined by the court at a pretrial hearing. At the
hearing, the proponent of the statement bears the
(a) A statement is not rendered inadmissible by burden of establishing 3 criteria by a preponderance
the hearsay rule if it is offered against a party that has of the evidence:
killed the declarant in violation of clauses (a)(1) and
(a)(2) of Section 9-1 of the Criminal Code of 1961 (1) first, that the adverse party murdered the
intending to procure the unavailability of the declar- declarant and that the murder was intended to
ant as a witness in a criminal or civil proceeding. cause the unavailability of the declarant as a wit-
ness;
(b) While intent to procure the unavailability
of the witness is a necessary element for the intro- (2) second, that the time, content, and cir-
duction of the statements, it need not be the sole cumstances of the statements provide sufficient
motivation behind the murder which procured the safeguards of reliability;
unavailability of the declarant as a witness.
(3) third, the interests of justice will best be
(c) The murder of the declarant may, but need served by admission of the statement into evi-
not, be the subject of the trial at which the state- dence.
ment is being offered. If the murder of the declarant
is not the subject of the trial at which the statement (f ) The court shall make specific findings as to
is being offered, the murder need not have ever been each of these criteria on the record before ruling on
prosecuted. the admissibility of said statements.
(d) The proponent of the statements shall give (g) This Section in no way precludes or changes
the adverse party reasonable written notice of its in- the application of the existing common law doctrine
tention to offer the statements and the substance of of forfeiture by wrongdoing.
the particulars of each statement of the declarant.
For purposes of this Section, identifying the loca- (Source: P.A. 95-1004, eff. 12-8-08; repealed by P.A.
tion of the statements in tendered discovery shall be 99-243, eff. 8-3-15.)
sufficient to satisfy the substance of the particulars
of the statement.
725 ILCS 5/115-10.7. Admissibility of prior statements of an unavailable witness whose absence was
wrongfully procured. [Repealed]
Sec. 115-10.7. Admissibility of prior statements should be allowed to benefit from such wrongdoing
of an unavailable witness whose absence was by depriving the trier of fact of relevant testimony.
wrongfully procured. [Repealed]
(b) A statement of a witness is not excluded at the
(a) Legislative intent. The Illinois General As- trial or hearing of any defendant by the hearsay rule
sembly finds that no party to a criminal case who or as a violation of any right to confront witnesses if
wrongfully procures the unavailability of a witness the witness was killed, bribed, kidnapped, secreted,
359
intimidated, or otherwise induced by a party, or one a preponderance of the evidence establishes that the
for whose conduct such party is legally responsible, defendant killed the declarant, the party seeking to
to prevent the witness from being available to testify introduce the statement shall be required to show by
at such trial or hearing. a preponderance of the evidence that the party who
caused the unavailability of the witness did so with
(c) The party seeking to introduce the statement the intent or motive that the witness be unavailable
shall disclose the statement sufficiently in advance of for trial or hearing. The court is not required to find
trial or hearing to provide the opposing party with that the conduct or wrongdoing amounts to a crimi-
a fair opportunity to meet it. The disclosure shall nal act.
include notice of an intent to offer the statement,
including the identity of the declarant. (e) Nothing in this Section shall be construed to
prevent the admissibility of statements under exist-
(d) Prior to ruling on the admissibility of a state- ing hearsay exceptions.
ment under this Section, the court shall conduct a
hearing outside the presence of the jury. During the (Source: P.A. 96-337, eff. 8-11-09; repealed by P.A 99-
course of the hearing the court may allow the parties 243, eff. 8-3-15.)
to proceed by way of proffer. Except in cases where
360
Appendix O
725 ILCS 5/115-10.2. Admissibility of prior statements when witness refused to testify despite a court
order to testify.
Sec. 115-10.2. Admissibility of prior statements intention to offer the statement, and the particulars
when witness refused to testify despite a court of the statement, including the name and address of
order to testify. the declarant.
(a) A statement not specifically covered by any (c) Unavailability as a witness is limited to the
other hearsay exception but having equivalent cir- situation in which the declarant persists in refusing
cumstantial guarantees of trustworthiness, is not to testify concerning the subject matter of the de-
excluded by the hearsay rule if the declarant is un- clarant’s statement despite an order of the court to
available as defined in subsection (c) and if the court do so.
determines that:
(d) A declarant is not unavailable as a witness if
(1) the statement is offered as evidence of a exemption, refusal, claim or lack of memory, inabil-
material fact; and ity or absence is due to the procurement or wrong-
doing of the proponent of a statement for purpose of
(2) the statement is more probative on the preventing the witness from attending or testifying.
point for which it is offered than any other evi-
dence which the proponent can procure through (e) Nothing in this Section shall render a prior
reasonable efforts; and statement inadmissible for purposes of impeachment
because the statement was not recorded or otherwise
(3) the general purposes of this Section and fails to meet the criteria set forth in this Section.
the interests of justice will best be served by ad-
mission of the statement into evidence. (f ) Prior statements are admissible under this
Section only if the statements were made under oath
(b) A statement may not be admitted under this and were subject to cross-examination by the adverse
exception unless the proponent of it makes known party in a prior trial, hearing, or other proceeding.
to the adverse party sufficiently in advance of the tri-
al or hearing to provide the adverse party with a fair (Source: P.A. 93-413, eff. 8-5-03; 93-443, eff. 8-5-03;
opportunity to prepare to meet it, the proponent’s 94-53, eff. 6-17-05.)
361
Appendix P
725 ILCS 5/115-10.2a. Admissibility of prior statements in domestic violence prosecutions when the
witness is unavailable to testify.
Sec. 115-10.2a. Admissibility of prior statements in (1) is exempted by ruling of the court on the
domestic violence prosecutions when the witness is ground of privilege from testifying concerning the
unavailable to testify. subject matter of the declarant’s statement; or
(a) In a domestic violence prosecution, a state- (2) persists in refusing to testify concerning
ment, made by an individual identified in Section the subject matter of the declarant’s statement de-
201 of the Illinois Domestic Violence Act of 1986 spite an order of the court to do so; or
as a person protected by that Act, that is not spe-
cifically covered by any other hearsay exception but (3) testifies to a lack of memory of the subject
having equivalent circumstantial guarantees of trust- matter of the declarant’s statement; or
worthiness, is not excluded by the hearsay rule if the
declarant is identified as unavailable as defined in (4) is unable to be present or to testify at the
subsection (c) and if the court determines that: hearing because of health or then existing physical
or mental illness or infirmity; or
(1) the statement is offered as evidence of a
material fact; and (5) is absent from the hearing and the propo-
nent of the statement has been unable to procure
(2) the statement is more probative on the the declarant’s attendance by process or other rea-
point for which it is offered than any other evi- sonable means; or
dence which the proponent can procure through
reasonable efforts; and (6) is a crime victim as defined in Section 3 of
the Rights of Crime Victims and Witnesses Act
(3) the general purposes of this Section and and the failure of the declarant to testify is caused
the interests of justice will best be served by ad- by the defendant’s intimidation of the declarant
mission of the statement into evidence. as defined in Section 12-6 of the Criminal Code
of 2012.
(b) A statement may not be admitted under this
exception unless the proponent of it makes known (d) A declarant is not unavailable as a witness if
to the adverse party sufficiently in advance of the tri- exemption, refusal, claim of lack of memory, inabil-
al or hearing to provide the adverse party with a fair ity, or absence is due to the procurement or wrong-
opportunity to prepare to meet it, the proponent’s doing of the proponent of a statement for purpose of
intention to offer the statement, and the particulars preventing the witness from attending or testifying.
of the statement, including the name and address of
the declarant. (e) Nothing in this Section shall render a prior
statement inadmissible for purposes of impeachment
(c) Unavailability as a witness includes circum- because the statement was not recorded or otherwise
stances in which the declarant: fails to meet the criteria set forth in this Section.
362
Appendix Q
725 ILCS 5/115-10.3. Hearsay exception regarding elder adults.
Sec. 115-10.3. Hearsay exception regarding elder (b) Such testimony shall only be admitted if:
adults.
(1) The court finds in a hearing conducted
(a) In a prosecution for a physical act, abuse, outside the presence of the jury that the time,
neglect, or financial exploitation perpetrated upon content, and circumstances of the statement pro-
or against an eligible adult, as defined in the Adult vide sufficient safeguards of reliability; and
Protective Services Act, who has been diagnosed by
a physician to suffer from (i) any form of dementia, (2) The eligible adult either:
developmental disability, or other form of mental in-
capacity or (ii) any physical infirmity, including but (A) testifies at the proceeding; or
not limited to prosecutions for violations of Sections
10-1, 10-2, 10-3, 10-3.1, 10-4, 11-1.20, 11-1.30, (B) is unavailable as a witness and there is
11-1.40, 11-1.50, 11-1.60, 11-11, 12-1, 12-2, 12- corroborative evidence of the act which is the
3, 12-3.05, 12-3.2, 12-3.3, 12-4, 12-4.1, 12-4.2, subject of the statement.
12-4.5, 12-4.6, 12-4.7, 12-5, 12-6, 12-7.3, 12-7.4,
12-11, 12-11.1, 12-13, 12-14, 12-15, 12-16, 12-21, (c) If a statement is admitted pursuant to this
16-1, 16-1.3, 17-1, 17-3, 17-56, 18-1, 18-2, 18-3, Section, the court shall instruct the jury that it is
18-4, 18-5, 18-6, 19-6, 20-1.1, 24-1.2, and 33A-2, for the jury to determine the weight and credibility
or subsection (b) of Section 12-4.4a of the Criminal to be given the statement and that, in making the
Code of 2012, the following evidence shall be ad- determination, it shall consider the condition of the
mitted as an exception to the hearsay rule: eligible adult, the nature of the statement, the cir-
cumstances under which the statement was made,
(1) testimony by an eligible adult, of an out of and any other relevant factor.
court statement made by the eligible adult, that
he or she complained of such act to another; and (d) The proponent of the statement shall give the
adverse party reasonable notice of his or her inten-
(2) testimony of an out of court statement tion to offer the statement and the particulars of the
made by the eligible adult, describing any com- statement.
plaint of such act or matter or detail pertaining to
any act which is an element of an offense which (Source: P.A. 96-1551, Article 1, Section 965, eff.
is the subject of a prosecution for a physical act, 7-1-11; 96-1551, Article 2, Section 1040, eff. 7-1-11;
abuse, neglect, or financial exploitation perpetrat- 96-1551, Article 10, Section 10-145, eff. 7-1-11; 97-
ed upon or against the eligible adult. 1108, eff. 1-1-13; 97-1109, eff. 1-1-13; P.A. 98-49, §
105, eff. 7-1-13.)
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Appendix R
725 ILCS 5/115-10.4. Admissibility of prior statements when witness is deceased.
Sec. 115-10.4. Admissibility of prior statements to the adverse party sufficiently in advance of the
when witness is deceased. trial or hearing to provide the adverse party with a
fair opportunity to prepare to meet it, the propo-
(a) A statement not specifically covered by any nent’s intention to offer the statement, and the par-
other hearsay exception but having equivalent cir- ticulars of the statement, including the name of the
cumstantial guarantees of trustworthiness is not ex- declarant.
cluded by the hearsay rule if the declarant is deceased
and if the court determines that: (c) Unavailability as a witness under this Section
is limited to the situation in which the declarant is
(1) the statement is offered as evidence of a deceased.
material fact; and
(d) Any prior statement that is sought to be ad-
(2) the statement is more probative on the mitted under this Section must have been made by
point for which it is offered than any other evi- the declarant under oath at a trial, hearing, or other
dence which the proponent can procure through proceeding and been subject to cross-examination
reasonable efforts; and by the adverse party.
(3) the general purposes of this Section and (e) Nothing in this Section shall render a prior
the interests of justice will best be served by ad- statement inadmissible for purposes of impeachment
mission of the statement into evidence. because the statement was not recorded or otherwise
fails to meet the criteria set forth in this Section.
(b) A statement may not be admitted under this
exception unless the proponent of it makes known (Source: P.A. 94-53, eff. 6-17-05.)
364
Appendix S
735 ILCS 5/8-2701. Admissibility of evidence; out of court statements; elder abuse.
Sec. 8-2701. Admissibility of evidence; out of court (A) testifies at the proceeding; or
statements; elder abuse.
(B) is unavailable as a witness and there is
(a) An out of court statement made by an eli- corroborative evidence of the act which is the
gible adult, as defined in the Adult Protective Ser- subject of the statement.
vices Act, who has been diagnosed by a physician
to suffer from (i) any form of dementia, develop- (b) If a statement is admitted pursuant to this
mental disability, or other form of mental incapac- Section, the court shall instruct the jury that it is
ity or (ii) any physical infirmity which prevents the for the jury to determine the weight and credibility
eligible adult’s appearance in court, describing any to be given to the statement and that, in making
act of elder abuse, neglect, or financial exploitation, its determination, it shall consider the condition of
or testimony by an eligible adult of an out of court the eligible adult, the nature of the statement, the
statement made by the eligible adult that he or she circumstances under which the statement was made,
complained of such acts to another, is admissible in and any other relevant factors.
any civil proceeding, if:
(c) The proponent of the statement shall give the
(1) the court conducts a hearing outside the adverse party reasonable notice of an intention to
presence of the jury and finds that the time, con- offer the statement and the particulars of the state-
tent, and circumstances of the statement provide ment.
sufficient safeguards of reliability; and
(Source: P.A. 90-628, eff. 1-1-99; P.A. 98-49, § 110,
(2) the eligible adult either: eff. 7-1-13.)
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Appendix T
735 ILCS 5/8-2601. Admissibility of evidence; out-of-court statements; child abuse.
Sec. 8-2601. Admissibility of evidence; out-of- (b) If a statement is admitted pursuant to this
court statements; child abuse. Section, the court shall instruct the jury that it is
for the jury to determine the weight and credibility
(a) An out-of-court statement made by a child to be given to the statement and that, in making its
under the age of 13 describing any act of child abuse determination, it shall consider the age and maturity
or any conduct involving an unlawful sexual act per- of the child, the nature of the statement, the circum-
formed in the presence of, with, by, or on the declar- stances under which the statement was made, and
ant child, or testimony by such of an out-of-court any other relevant factors.
statement made by such child that he or she com-
plained of such acts to another, is admissible in any (c) The proponent of the statement shall give the
civil proceeding, if: (1) the court conducts a hearing adverse party reasonable notice of an intention to
outside the presence of the jury and finds that the offer the statement and the particulars of the state-
time, content, and circumstances of the statement ment.
provide sufficient safeguards of reliability; and (2)
the child either: (i) testifies at the proceeding; or (ii) (Source: P.A. 85-1440, eff. 2-1-89.)
is unavailable as a witness and there is corroborative
evidence of the act which is the subject of the state-
ment.
366
Appendix U
725 ILCS 5/115-10. Certain hearsay exceptions.
Sec. 115-10. Certain hearsay exceptions. (2) testimony of an out of court statement
made by the victim describing any complaint of
(a) In a prosecution for a physical or sexual act such act or matter or detail pertaining to any act
perpetrated upon or against a child under the age of which is an element of an offense which is the
13, or a person who was a person with a moderate, subject of a prosecution for a sexual or physical
severe, or profound intellectual disability as defined act against that victim.
in this Code and in Section 2-10.1 of the Crimi-
nal Code of 1961 or the Criminal Code of 2012 at (b) Such testimony shall only be admitted if:
the time the act was committed, including but not
limited to prosecutions for violations of Sections 11- (1) The court finds in a hearing conducted
1.20 through 11-1.60 or 12-13 through 12-16 of outside the presence of the jury that the time,
the Criminal Code of 1961 or the Criminal Code content, and circumstances of the statement pro-
of 2012 and prosecutions for violations of Sections vide sufficient safeguards of reliability; and
10-1 (kidnapping), 10-2 (aggravated kidnapping),
10-3 (unlawful restraint), 10-3.1 (aggravated unlaw- (2) The child or moderately, severely, or pro-
ful restraint), 10-4 (forcible detention), 10-5 (child foundly intellectually disabled person either:
abduction), 10-6 (harboring a runaway), 10-7 (aid-
ing or abetting child abduction), 11-9 (public in- (A) testifies at the proceeding; or
decency), 11-11 (sexual relations within families),
11-21 (harmful material), 12-1 (assault), 12-2 (ag- (B) is unavailable as a witness and there is
gravated assault), 12-3 (battery), 12-3.2 (domestic corroborative evidence of the act which is the
battery), 12-3.3 (aggravated domestic battery), 12- subject of the statement; and
3.05 or 12-4 (aggravated battery), 12-4.1 (heinous
battery), 12-4.2 (aggravated battery with a firearm), (3) In a case involving an offense perpetrat-
12-4.3 (aggravated battery of a child), 12-4.7 (drug ed against a child under the age of 13, the out
induced infliction of great bodily harm), 12-5 (reck- of court statement was made before the victim
less conduct), 12-6 (intimidation), 12-6.1 or 12-6.5 attained 13 years of age or within 3 months af-
(compelling organization membership of persons), ter the commission of the offense, whichever
12-7.1 (hate crime), 12-7.3 (stalking), 12-7.4 (ag- occurs later, but the statement may be admit-
gravated stalking), 12-10 or 12C-35 (tattooing the ted regardless of the age of the victim at the
body of a minor), 12-11 or 19-6 (home invasion), time of the proceeding.
12-21.5 or 12C-10 (child abandonment), 12-21.6
or 12C-5 (endangering the life or health of a child) (c) If a statement is admitted pursuant to this
or 12-32 (ritual mutilation) of the Criminal Code Section, the court shall instruct the jury that it is
of 1961 or the Criminal Code of 2012 or any sex for the jury to determine the weight and credibility
offense as defined in subsection (B) of Section 2 of to be given the statement and that, in making the
the Sex Offender Registration Act, the following evi- determination, it shall consider the age and matu-
dence shall be admitted as an exception to the hear- rity of the child, or the intellectual capabilities of
say rule the person with a moderate, severe, or profound in-
tellectual disability, the nature of the statement, the
(1) testimony by the victim of an out of court circumstances under which the statement was made,
statement made by the victim that he or she com- and any other relevant factor.
plained of such act to another; and
367
(d) The proponent of the statement shall give the dren’s Advocacy Center Act or that an interviewer
adverse party reasonable notice of his intention to or witness to the interview was or is an employee,
offer the statement and the particulars of the state- agent, or investigator of a State’s Attorney’s office.
ment.
(Source: P.A. 96-710, § 40, eff. 1-1-10; P.A. 96-1551,
(e) Statements described in paragraphs (1) and Art. 1, § 965, eff. 7-1-11; P.A. 96-1551, Art. 2, § 1040,
(2) of subsection (a) shall not be excluded on the eff. 7-1-11; P.A. 97-227, § 140, eff. 1-1-12; P.A. 97-
basis that they were obtained as a result of inter- 1108, § 15-30, eff. 1-1-13; P.A. 97-1109, § 10-955,
views conducted pursuant to a protocol adopted eff. 1-1-13; P.A. 97-1150, § 635, eff. 1-25-13; P.A. 99-
by a Child Advocacy Advisory Board as set forth in 143, § 890, eff. 7-27-15.)
subsections (c), (d), and (e) of Section 3 of the Chil-
368