The Supreme Court of Illinois has adopted an evidence code entitled the Illinois Rules of Evidence. The Rules will go into effect on January 1, 2011—a date that will signal both a new page and a final chapter for legal professionals in Illinois. Judges, practitioners, academics, and students will be able to utilize a comprehensive and easy-to-locate body of Illinois evidence for the very first time in the state’s history. At the same time, individuals who have advocated for such a change will witness the conclusion to a chapter in their professional lives. In particular, Chief Justice of the Illinois Supreme Court and John Marshall Law School alumnus, Thomas R. Fitzgerald, and The John Marshall Law School’s Associate Dean for Academic Affairs, Ralph Ruebner, have had the satisfaction of donating their hard work to personally assist in transforming years of far-sighted wisdom into tangible results.
The event is a “crowning achievement” for Chief Justice Fitzgerald, as noted by the Illinois Supreme Court’s official press release. Upon becoming Chief in September of 2008, Justice Fitzgerald immediately encouraged his colleagues on the Court to convene a Special Committee with the goal of codifying Illinois evidence. The Committee was convened the following November under the chairmanship of Appellate Justice Donald C. Hudson of the Second Judicial District, also a John Marshall alumnus. The Committee took up what was first and foremost an organizational task—locating and synthesizing the governing evidentiary principles which were heretofore sprinkled amongst Illinois case law, statutes, and Supreme Court Rules. The Committee met periodically for almost two years to incorporate an enormous research project into several proposed drafts of the Rules. In May of 2010, the Committee held public hearings in Chicago and Springfield during which practitioners and other commentators were invited to raise concerns and recommendations. The final version was subsequently drafted, and ultimately approved on September 27th, 2010. In addition to determining the state of Illinois evidence law, the Special Committee also proposed fourteen instances of modernization and two recommended changes—all of which were approved by the Supreme Court.
In order to arrive at well-reasoned organization, modernization, and changes, the Committee analyzed proposals against the backdrop of evidentiary principles as they exist, and have evolved, throughout Illinois and other judicial jurisdictions. As Reporter for the Special Committee, Dean Ruebner was given the task of compiling the principles and rules of forty-four code jurisdictions. When asked about his duties as the Reporter for the Special Committee, Dean Ruebner stated that the jurisdictional compilation was used, in part, “to draw conclusions about minority and majority positions” in the U.S. The perspective of other jurisdictions was important because a major task for the Committee was to determine “What is the law? And in some instances, what is the best statement of the law?” In this task, he was assisted by a number of John Marshall Law School research assistants.
Dean Ruebner stated that he was “honored to be asked by the Supreme Court” to be a part of such a project, explaining that his participation stemmed from previous involvement with the Judiciary. On reflection, he stated that his experience was “wonderful,” and then thoughtfully named and expressed admiration for virtually every person involved in the promulgation and passage of the Rules. He explained that the event is “historic” for Illinois—as there have been a few failed attempts to codify evidence in the state within the past forty years or so.
Dean Ruebner stated that his involvement in the Special Committee and its results were “very satisfying, professionally.” Understandably so—codifying Illinois evidence is a cause that Dean Ruebner had championed for some 25 years. In the first edition of his book, Illinois Criminal Trial Evidence (1986), Dean Ruebner observed that “we are still missing a code.” This sentiment was voiced again and again along with the advocacy for a code in each of the subsequent editions of his book in 1996 and 2006. After twenty five years of advocacy in books, as well as in articles and the classroom, seeing it come to fruition is, no doubt, “personally gratifying.”
Dean Ruebner’s understanding of evidence incorporates the perspectives he has gained as a practitioner, academic, and an educator. He understands that the Rules will change the way trial litigation is conducted in the courtroom. When asked about the implications that the Rules will have on teaching evidence in Illinois, he laughs and says “It should make it easier.” He goes on to point out that a course in Illinois evidence is something worth exploring because the Rules offer more grounding and could be taught as an addition to the evidentiary framework learned by students studying the Federal Rules. In fact, he stated that he would like the John Marshall Law School’s Center for Advocacy and Dispute Resolution to explore the creation of a class in Illinois evidence. When asked if he would ever teach such a class he said that “anything is possible.” Many of the judges in the John Marshall Law School’s Hall of Distinction were students in Dean Ruebner’s legendary evidence classes. Perhaps there is room for more.
The Illinois Rules of Evidence are organized in the same manner as the Federal Rules and cover much of the same territory. However, there are several important points of departure. One point of departure that has received much attention is embodied in Illinois Rule of Evidence 702, which provides in part:
“Where an expert witness testifies to an opinion based on a new or novel scientific methodology or scientific principle the proponent of the opinion has the burden of showing that the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs.”
This language indicates Illinois’ adherence to the standard regarding expert testimony as set forth inFrye v. U.S. The Committee Comment states clearly that this “…sentence of the rule enunciates the core principles of the Frye test for admissibility as set forth in Donaldson v. Central Illinois Public Service Co., 199 Ill.2d 63, 767 N.E.2d 314 (2002).” How the Rules would deal with the Frye standard was one of the central topics of interest to practitioners at the Special Committee’s May 2010 public hearings. Shedding some light onto the drafting process, Dean Ruebner points out that the public hearings aided in the decision to set forth the Frye standard in more direct language than it was in previous drafts.
Given a brand new code that includes fourteen modernizations and two limited changes to Illinois law, there is no substitute for a thorough read of the resources. Students seeking to figure out the rules should read the Illinois Supreme Court’s official press release, the Committee Commentary, and of course, the Rules themselves. All of these documents can be found at www.state.il.us/court/-the official website of the Illinois Supreme Court. Students should also anticipate the publication of the newest edition of Cleary and Graham’s Handbook on Illinois Evidence—a staple in the landscape of Illinois evidence resources. The tenth edition, set to be released at the end of 2010, will include a thorough discussion on the new code. The author, Professor Michael Graham, served the Special Committee in his capacity as advisor—bringing with him his experience as advisor during the last attempt at codification. Dean Ruebner commented that Professor Graham “served as the guiding hand of the project.” He went on to credit Graham “for his brilliant analysis of the evidentiary law here in Illinois and throughout the country and for his steadfast leadership to make the code a reality.” Now that codification has been achieved, its adoption is but a first step in the future evolution of Illinois law.
Codification sets the stage for the judicial interpretation that is sure to follow. Dean Ruebner points out that “the Rules are subject to identifying constitutional issues.” He reminds students that it was “not the charge of the Committee to develop Rules that touch all constitutional issues.” For example, confrontation issues that relate to hearsay are ripe for interpretation. Anyone interested in the court’s new era of evidentiary interpretation should also pay special attention to Reserved Rule 407. The Special Committee reserved Rule 407 so as not to preempt a pending Illinois Supreme Court decision dealing with Illinois’ stance on the principle of subsequent remedial measures in products liability cases. This issue is being taken up in Jablonski v. Ford Motor Co. Upon reaching a decision, the Illinois Supreme Court may direct the Special Committee to remove the reservation and incorporate the holding of Jablonski into Rule 407, if appropriate. This outcome could be an early manifestation of the new era of Illinois Evidence and its future evolution.
The John Marshall Law School Center for Advocacy and Dispute Resolution is a place for students to learn and cherish the skills of advocacy. A codified body of evidence law makes it easier to develop strategy, understand arguments, and prepare to represent your client in the most confident and time-efficient manner. For this reason, the Center would like to extend some deserving gratitude and congratulations to Chief Justice Thomas R. Fitzgerald, Justice Donald C. Hudson, Dean Ruebner, and the rest of the Special Committee. Your hard work has made our lives a little bit easier, and for that, we thank you.