The Journal of The DuPage County Bar Association

Back Issues > Vol. 24 (2011-12)

New Illinois Rules of Evidence
by Anne M. Therieau

On January 1, 2011, the Illinois Rules of Evidence (the “Rules”) became effective.  The Rules were adopted by the Illinois Supreme Court on September 27, 2010 and represent the culmination of a two year effort spearheaded by Illinois Supreme Court Chief Justice Thomas R. Fitzgerald.  This effort to codify the existing rules of evidence in Illinois was a goal of Justice Fitzgerald when he became Chief Justice of the Supreme Court on September 6, 2008.  To achieve this goal, the Illinois Supreme Court appointed the Special Supreme Court Committee on Illinois Evidence (the “Committee”) on November 24, 2008.  The nineteen member Committee was comprised of leading Illinois jurists, legal scholars, legislative representatives and distinguished members of the Illinois Bar with Second District Appellate Justice Donald C. Hudson chairing the committee.  The charge of the committee was to codify the law of evidence in the state of Illinois.  Beginning in November of 2008, the Committee went about codifying the existing evidence law by holding monthly meetings.  As a result of these meetings, they produced a first draft of the Illinois Rules of Evidence in October of 2009.  Then, the Committee invited public comment and held public hearings.  After reviewing written comments and the feedback from these two public hearings, the Committee modified the initial draft of the Rules.  This revised draft was then submitted to the Illinois Supreme Court, adopted on September 27, 2010, and went into effect on January 1, 2011. 

Background. Before this effort to codify the existing evidentiary law, the rules of evidence in Illinois were dispersed among case law, statutes, and Illinois Supreme Court Rules.  The goal was to codify evidentiary law in Illinois into one central format and hopefully by doing so, make trial proceedings more efficient.[1]  By codifying the Illinois Rules of Evidence, Illinois joins 44 other states that have centralized rules of evidence.  The Rules were patterned after the Federal Rules of Evidence and follows its organizational structure.   While in many cases the Illinois Rules are the same or similar to the Federal Rules, they are not identical. 

In the Committee’s commentary to the Rules, they note that the Rules are not intended to abrogate or supersede any current statutory rules of evidence.[2]  Rather, the Committee made every effort to avoid affecting the validity of any existing statutes.[3]  Moreover, “[t]he 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.”[4]  Rule 101 makes clear that the Illinois legislature is free to adopt further rules of evidence so long as they are not in conflict with a rule or decision of the Illinois Supreme Court.[5]   In many cases, the new Rules incorporate existing statutes and refer to these statutes specifically, incorporating them into the Rules, so as to not abrogate them.  For example, in Rule 404(b), dealing with character evidence and evidence of other crimes, the Rule notes that evidence of other crimes is not admissible to prove actions in conformity therewith except as provided in 725 ILCS 5/115-7.3 (code of criminal procedure allowing evidence of other crimes subject to certain limitations in prosecutions for certain sex offenses and crimes of violence involving sexual penetration or sexual conduct), 725 ILCS 5/115-7.4 (code of criminal procedure dealing with evidence of other crimes in certain domestic violence cases), and 725 ILCS 5/115-20 (code of criminal procedure allowing evidence of prior convictions in certain cases where the victim in the instant case is the same person who was the victim of the previous offense that resulted in the conviction of the defendant).[6] 

In the Rules, with two exceptions, the Committee adopted the current law of evidence in Illinois whenever the Illinois Supreme Court or one of the Illinois Appellate Courts had clearly spoken on a principle of evidentiary law.[7]   One example of this is Rule 702 of the Rules which retained the “Frye” standard for expert opinion evidence.[8]   This standard, as it was espoused in Donaldson v. Cent. Ill. Pub. Serv. Co., 199 Ill. 2d 63, 767 N.E.2d 314 (2002), provides that in cases where expert opinion evidence is elicited with respect to new or novel science, “the proponent of the opinion has the burden of showing 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.”[9]  This rule confirms that Illinois remains a "Frye" state.   In so doing, Illinois continues to differ from the Federal Courts, which utilize a lower standard than Illinois.   Federal courts apply the "Daubert" standard which provides that expert evidence may be presented if it is (1) testimony is based on sufficient facts or data, (2) the testimony is the product of principles and methods, and (3) the principles and methods have reliably been applied to the facts of the case.[10] 

Substantive Changes. The Committee recommended and identified a number of changes to the current evidentiary law, two of which were ultimately approved and adopted by the Supreme Court in the new Rules.  The first of these two changes addresses the inclusion of opinion testimony in two rules.  Rule 405 now allows “[i]n all cases 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.”[11]  Prior to the codification of the Rules, character evidence could only be proven by reputation testimony and not through opinion evidence.[12]  This represents a substantive change in Illinois law.  This change is in line with Federal Rule of Evidence 405(a) which also allows for proof of character or a trait of a person to be made through opinion as well as reputation evidence.[13]  Opinion evidence is also now allowed, in addition to reputation evidence, subject to certain limitations, as a means to attack or support the credibility of a witness.[14]  This is also a change to Illinois evidentiary law.  Prior to the codification, Illinois evidence law only allowed proof of witness’ reputation for truthfulness through reputation testimony.[15] 

The second change involves eliminating the requirement that a declarant be found unavailable to testify when attempting to elicit statements of then existing mental, emotional, or physical condition of this declarant.[16]  The rule also eliminates the need for the trial court to find that there is a “reasonable probability” that the statement is truthful.[17]  Making the availability of a declarant immaterial represents a substantive change to Illinois evidence law.[18]  Prior Illinois decisions regarding this particular law of evidence required the declarant to be unavailable in order to trigger the application of the rule.[19]  Not so in the new Rules. 

Modernization. Generally, the Committee incorporated into the Illinois Rules of Evidence uncontroversial developments with respect to the law of evidence in a process which the Committee called "modernization.”[20]  This was done where there was no conflict with statutes or recent Illinois Supreme Court or Illinois Appellate Court opinions and where the developments were determined to be beneficial and uniformly or almost uniformly accepted elsewhere.[21]  There are fourteen examples of this modernization by the committee.[22]   Some examples of this “modernization” include Rule 801(d)(1)(A) that codifies 725 ILCS 5/115-10.1 making admissalbe non-hearsay 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.[23] Further,  modernizations include Rule 613(a), which provides that a prior inconsistent statement need not be shown to a witness prior to cross-examination,[24] and Rule 806, which eliminates the requirement of explaining or having the opportunity to deny an inconsistent statement or the conduct of an out-of-court declarant when a hearsay statement is involved.[25]

Conclusion. The codified Illinois rules of evidence provide the rules in an easily accessible central location, which benefits practicing lawyers and the clients they serve.

[1] See Ill. R. Evid. Committee Commentary (eff. Jan. 1, 2011).

[2] See Ill. R. Evid. Committee Commentary (eff. Jan. 1, 2011).

[3] Id

[4] Id

[5] See ILL. R. EVID. 101 (eff. Jan. 1, 2011).  

[6] ILL. R. EVID. 404(b) (eff. Jan. 1, 2011). 

[7] See ILL. R. EVID. Committee Commentary (eff. Jan. 1, 2011). 

[8] ILL. R. EVID. 702 (eff. Jan. 1, 2011).  

[9] Ill. R. Evid. 702 (eff. Jan. 1, 2011).

[10] FED. R. EVID. 702.

[11] ILL. R. EVID. 405. 

[12] See People v. Nyberg, 275 Ill. App. 3d 570, 583, 656 N.E.2d 65, 74 (1st Dist. 1995). 

[13] See FED. R. EVID. 405(a). 

[14] ILL. R. EVID 608. 

[15] See People v. Cookson, 215 Ill. 2d 194, 213, 830 N.E.2d 484, 495 (Ill. 2005) (noting that the Illinois Supreme Court has “consistently held the proper procedure for impeaching a witness’ reputation for truthfulness is through the use of reputation evidence and not through opinion evidence or evidence of specific past instances of untruthfulness.”) 

[16] ILL. R. EVID. 803(3). 

[17] Id. 

[18] See Gino L. DiVito, “The Illinois Rules of Evidence: A Color-Coded Guide Containing the New Rules, The Committee’s General and Specific Comments, A Comparison with the Federal Rules of Evidence, and Additional Commentary,” August 15, 2011, available at

[19] Id. 

[20] See ILL. R. EVID, Committee Commentary (eff. Jan. 1, 2011). 

[21] Id. 

[22] Id (for a full list of these 14 “modernizations”). 

[23] ILL. R. EVID. 801(d)(1)(A). 

[24] ILL. R. EVID. 613(a). 

[25] ILL. R. EVID. 806. 

Anne M. Therieau is an Assistant State’s Attorney for the DuPage County State’s Attorney’s Office.  She serves as the Chair of the Criminal Law Committee of the DuPage County Bar Association.  Ms. Therieau received her bachelor’s degree in Economics from University of Notre Dame and her law degree from Loyola University Chicago.

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