Page 9 - John Hundley 2010

Sharp Thinking

No. 32 Perspectives on Developments in the Law from The Sharp Law Firm, P.C. April 2010
Federal Rules Provide The Pattern

For Proposed Illinois Rules of Evidence

Illinois’ long-standing resistance to codified rules of evidence may be coming to an end.

The Illinois Supreme Court has appointed a special committee on evidence and the committee
has proposed adoption of Illinois Rules of Evidence patterned on the Federal Rules of Evidence. It
has also released the proposed rules for public comment and scheduled public hearings on them.
If adopted, the proposal would make Illinois evidence rules both easier to find and more uniform
with other jurisdictions. But while the Federal Rules indisputably are the model for the Illinois
proposal, and provide the numbering system which the Illinois rules would follow, the committee is not
proposing that the Federal Rules be adopted en masse.

Among the significant differences:

► Illinois would not adopt the federal provision that once a court makes a definitive ruling admitting
or excluding evidence, a party need not renew an objection or offer of proof to preserve his claim
for error (Fed. R. Evid. 103(a)).

► The rule on use of character evidence (Fed. R. Evid. 404) is modified significantly.

► Illinois would provide that in homicide and 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 be made of specific instances of the alleged victim’s prior violent conduct. Compare
Fed. R. Evid. 405(b).

► Illinois would extend the ban on reference to remedial measures to steps taken “after manufacture
of a product but prior to injury or harm allegedly caused by that product”. Compare Fed. R. Evid.
407.

► Illinois would broaden the circumstances when evidence presented in the course of settlement
discussions could be used, looking to whether the evidence would be “otherwise discoverable”.
Compare Fed. R. Evid. 408.

► Fed. R. Evid. 410 is modified and generally made applicable to only criminal proceedings.

► Illinois would stick to the common-law approach on privileges, except where governed by statute
or constitutional provision. Fed. R. Evid. 502 would not be adopted.

► Illinois would limit the circumstances in which a party can attack his own witness’ credibility. Use
of a prior inconsistent statement would be permitted “only upon a showing of affirmative damage”
except as to circumstances governed by the rules on hearsay (Fed. R. Evid. 607, 801(d), 803).

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Sharp Thinking is an occasional newsletter of The Sharp Law Firm, P.C. addressing developments in the law which may be of interest. Nothing contained in Sharp
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constitute educational material on general legal topics and are not legal advice applicable to any particular situation. To establish an attorney-client relation or to obtain legal
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