The Illinois Rules of Evidence are created by the Illinois Supreme Court. Some provisions are incorporated by statutes but the comprehensive, all encompassing system is created by the high court.
- Illinois Supreme Court Rules of Evidence
- Color Coded PDF of The Rules of Evidence
- Code of Criminal Procedure of 1963
Although, the rules are applicable in both civil and criminal cases this page is focused on how the rules apply in criminal cases. If you need a general criminal law course or just looking for information on some of the basics Start Here.
Hearsay Evidence Defined
Unless hearsay falls within an exception to the hearsay rule, it is generally inadmissible due to its lack of reliability and the inability of the opposing party to confront the declarant.
- Episode 339 – People v. French, 2017 IL App (1st) 141815 (March) (Duration 18:04) (In Illinois the hearsay exception also includes implied information that is actually stated out loud.)
- Episode 057 – People v. Boling, 2014 IL App (4th) 120634 (March); citing People v. Cameron, 189 Ill. App. 3d 998, 1004, 546 N.E.2d 259, 263 (1989). Episode 057 (Duration 19:48) (A Back Door Way For Prosecutors To Get Into Clearly Inadmissible Evidence: I Think They All Do This)
- Episode 315 – People v. Ochoa, 2017 IL App (1st) 140204 (February). (Duration 29:55) (Defendant’s murder conviction is reversed a second time for the same reason it was reversed the first time (Cameron Hearing Problem).)
- Episode 339 – People v. French, 2017 IL App (1st) 141815 (March) (Duration 18:04) (Hearsay Exception Also Includes Implied Information)
- Episode 560 – People v. Stewart, 2018 IL App (3d) 160205 (November) (Duration 5:23) (State Needs To Bring In A Body To Admit Certification Letter From Illinois State Police)
Implied Information Is Also Hearsay
Hearsay includes both matters directly expressed and matters the declarant necessarily implicitly intended to express.
When the declarant necessarily intended to express the inference for which the statement is offered, the statement is tantamount to a direct assertion and therefore is hearsay.
Example of Hearsay
To illustrate, the question
“Do you think it will stop raining in one hour?”
contains the implicit assertion that it is currently raining. See Michael H. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 801.1.
Existing State of Mind And All The Other Exceptions
Once you understand the meaning of hearsay, the rules then go on to explicitly define scenarios that would be considered hearsay but are excluded as hearsay by definition.
Consider the “existing state of mind exception.”
A statement admitted to prove-up the declarant’s state of mind is not considered hearsay so it’s admissible.
See Illinois Supreme Court Rule 803 for other exceptions.
The excited utterance exception is perhaps the best well known exception to hears in the Illinois rules of evidence. It is codified in Rule 803(2), which states:
For such statements to be admissible, there must be…
(1) An event that is “sufficiently startling to produce a spontaneous and unreflecting statement”
(2) The statement must have been made closely after the event such that the declarant did not have time to contemplate his or her words and create a fabrication; and
(3) The statement must relate to the event.
However, the declarant must have had an opportunity to observe personally the matter of which he speaks.
Hearsay Exception For Intentional Murder Of A Witness
Ordinarily, the Illinois rule of evidence against hearsay would prohibit the introduction at trial of such out-of-court statements that are offered to prove the truth of the matter asserted.
There are exceptions created for statement made by a murder victim.
In People v. Stechly, 225 Ill. 2d 246 (2007), this court recognized the common-law doctrine of forfeiture by wrongdoing as the law of Illinois. People v. Hanson, 238 Ill. 2d 74, 97 (2010).
Illinois Created Rule 804(b)
The common-law doctrine has since been codified in the Illinois Rules of Evidence. See Ill. R. Evid. 804(b)(5) (eff. Jan. 1, 2011). The rule is super simple saying,
“(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (5) Forfeiture by Wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.”
See Episode 396 – People v. Peterson, 2017 IL 120331 (September) (Duration 17:32) (Drew Peterson loses his forfeiture by wrongdoing appeal to the Illinois Supreme Court.)
Common Law Forfeiture By Wrongdoing
The common-law doctrine, which dates back to the seventeenth century, permits the introduction of an absent witness’s statements where the defendant engaged in conduct designed to prevent the witness from testifying. Giles v. California, 554 U.S. 353, 359-61 (2008).
The Supreme Court adopted the common-law doctrine in the early case of Reynolds v. United States, 98 U.S. 145 (1879). Giles, 554 U.S. at 366. Reynolds explained that the doctrine is founded on the equitable maxim that “no one shall be permitted to take advantage of his own wrong.”
You can’t talk about evidence without talking about the creation of certain evidentiary privileges. Consider the “Advocate-Victim Privilege.”
When this privilege was created by legislatures in 1986, the General Assembly recognized that domestic violence was a serious crime and the legal system historically had dealt ineffectively with family violence.
Section 227 of the Act specifically protects confidential communications between domestic violence counselors/advocates and victims and states, in pertinent part:
“(b) No domestic violence advocate or counselor shall disclose any confidential communication or be examined as a witness in any civil or criminal case or proceeding or in any legislative or administrative proceeding without the written consent of the domestic violence victim except
(1) in accordance with the provisions of the Abused and Neglected Child Reporting Act or
(2) in cases where failure to disclose is likely to result in an imminent risk of serious bodily harm or death of the victim or another person.”
See also Episode 338 – People v. Savedo, 2017 IL App (1st) 152541 (March) (Duration 8:37) (the domestic violence advocate-victim privilege comes under scrutiny but survives)
Discovery Rules May Effect Privileges
A trial court faced with an admissibility question with a privilege has a tough job to do. They have to consider the evidence when one side is trying to restrict the evidence. That is why it’s a privilege.
The criminal rules of discovery, namely the in camera inspection section, can help a judge out. Consider Illinois Supreme Court Rule 415(f), it provides that:
However, a privilege may be absolute or qualified in nature, and there are crucial distinctions between the two.
If information is protected from disclosure pursuant to an absolute privilege, the opposing party cannot defeat the privilege by an ad hoc, case-specific showing of need for the privileged information. In such a case, the appropriate inquiry is whether the information sought falls within the scope of the privilege.
If it does, the information is protected from discourse and the inquiry ends.
By contrast, a qualified privilege can be defeated if the party seeking discovery of the privileged information can demonstrate that his or her need for the materials is sufficiently great to overcome the privilege.
To meet this burden, the party seeking the information must show the importance of the inquiry for which the privileged information is sought; the relevance of that information to its inquiry; and the difficulty of obtaining the desired information through alternative means.
After the burden is met, the court then balances the demonstrated need for the privileged information against the degree of intrusion upon the confidentiality of the privileged communications necessary to satisfy the need.
- Episode 431 – People v. Palmer, 2017 IL App (1st) 151253 (November) (Duration 14:46) (This officer was hiding on his knees in some bushes; he thought his exact location needed to stay secret.)
- Episode 259 –People v. Flournoy, 2016 IL App (1st) 142356 (November) (Duration 11:44) (Defendant Had A Right To Know The Surveillance Location)
- Episode 292 – In re Manuel M., 2017 IL App (1st) 162381 (January) (Duration 8:55) (In re Manuel – Surveillance Privilege Unjustified When Cop Is The Only Witness)
- Episode 432 – People v. Jackson, 2017 IL App (1st) 151779 (November) (Duration 10:24) (During A Surveillance Privilege Argument Exactly Who Gets To Go Back There For The In Camera Inspection)
- People v. Sutton, 316 Ill.App.3d 874 (1st Dist. 2000) (case discussing the physician-patient privilege cited in 735 ILCS 5/8-802)
Started With Informant’s Privilege
The Illinois rules of evidence have to follow constitutional constraints. For example, criminal defendants have a constitutional right to confront witnesses against them, which includes the right to cross-examination. See U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8.
Yet, the right to cross-examination is not absolute. The case law invented something called the “informant’s privilege.”
It was first recognized in Illinois in People v. Criss, 294 Ill. App. 3d 276 (1998), and evolved from the informant’s privilege, which is codified in the Illinois Compiled Statutes. See 735 ILCS 5/8-802.3.
The informant’s privilege turned into the surveillance privilege. The idea was that if the identity of a witness could be protected that meant the location of the identity could also be protected.
The more important a witness is to the State’s case, the more important the defendant’s right to cross-examination concerning the surveillance location becomes.
The purpose of the surveillance location privilege is to protect surveillance sites, which are valuable resources to the police, and to protect the safety of police officers and cooperative private citizens. See People v. Britton, 2012 IL App (1st) 102322, ¶ 26.
In determining whether the privilege applies, the trial court must balance the defendant’s interest in preparing a defense against the public interest in keeping the location of surveillance secret.
The Surveillance Privilege Test
The State carries this burden by presenting evidence that the surveillance location was either-
(1) on private property with the permission of the owner or
(2) in a useful location, the utility of which would be compromised by disclosure.
If there is no question about a surveillance officer’s ability to observe or evidence of the crime in question appears on a contemporaneous video recording, disclosure would not be required.
In contrast, if the prosecution’s case depends almost exclusively on one police officer’s testimony, disclosure must “almost always” be required.
Surveillance Privilege Rule Of Thumb
Two fundamental considerations must be kept in mind:
First, the more important a State’s witness is to the State’s case, the more important the defendant’s right to cross examination concerning the surveillance location becomes. Thus, if the State’s case is built almost exclusively on the testimony of one surveillance officer, disclosure of the surveillance location must almost always be required.
Second, if there is no question about a surveillance officer’s ability to observe or there is contemporaneous video evidence, disclosure is not required.
Some Basic Procedure To Follow For The Surveillance Privilege
The State has the initial burden of proof to demonstrate that the privilege applies, which it may carry with testimony from the officer that his surveillance point was located on private property with the owner’s permission or in a useful location whose value would be compromised by disclosure.
During the in camera inspection, the surveillance officer “must” disclose his surveillance location to the judge.
If the State meets its burden, the burden of persuasion shifts to the defendant to demonstrate that the privilege should not apply.
In order for the defendant to compel disclosure when the issue is raised before trial, “the defendant must make a strong showing that the disclosure of the location is material or necessary to his defense and that his need for the information outweighs the public’s interest in keeping the location secret.”
The in camera hearing is intended to be a limited inquiry of the surveillance officer, not expanded into the functional equivalent of that officer’s trial testimony.
How To Run The In Camera Inspection
To evaluate whether the privilege applies, the trial court should hold an in camera hearing, outside the presence of the defendant and defense counsel, during which the State’s witness must reveal the surveillance location and make a preliminary showing that disclosure of that location would harm the public interest.
Then, the trial court should weigh the defendant’s need for the surveillance location against the public’s interest in nondisclosure.
Factors to be considered in evaluating the public interest in nondisclosure include
- the crime charged
- the possible defenses and
- the potential significance of the privileged information.
If the State satisfies its burden of proof at the in camera hearing, then the burden shifts to the defendant to overcome the privilege.
How Defense Can Overcome The Privilege
The defendant’s burden at this point varies depending on the timing of the invocation of the privilege.
If the surveillance location privilege was invoked or challenged pretrial, the defendant may overcome it by making a strong showing that the disclosure of the surveillance location is material or necessary to the defense and that his need for the information outweighs the public’s interest in keeping the location secret.
During Trial Challenge
In contrast, if the State first invokes the privilege at trial then the defendant need only show that the surveillance location is relevant and helpful to his defense, or is essential to the fair determination of the cause.
Presumption of Access To Judicial Records And Documents
The United States Supreme Court has recognized the existence of a common law right of access to judicial records and documents. Additionally, in Illinois, section 16(6) of the Clerks of Courts Act (705 ILCS 105/16(6)) provides for the public’s right to review judicial records.
Specifically, that provision provides, in pertinent part, the following:
“All records, dockets and books required by law to be kept by such clerks shall be deemed public records, and shall at all times be open to inspection without fee or reward, and all persons shall have free access for inspection and examination to such records, docket and books, and also to all papers on file in the different clerks’ offices and shall have the right to take memoranda and abstracts thereto.”
Once documents are filed with the court, they lose their private nature and become part of the court file and public components of the judicial proceeding to which the right of access attaches. This right also applies to transcripts of hearings as they are records of trial court proceedings.
Moreover, embedded in the first amendment to the United States Constitution (U.S. Const. amend. I) is a right of access to court records.
However, under all three sources of the right to access court records, the right is not absolute.
- Episode 553 – People v. Zimmerman, 2018 IL 122261 (October) (Duration 10:21) (Freedom Of The Press Can’t Be Used As An Excuse To Access Sensitive Information Filed In A Criminal Case)
- Episode 336 – People v. Zimmerman, 2017 IL App (4th) 170055 (March) (Duration 6:31) (Press has a right to read the lascivious motions in limine filed by the defense but sealed by the trial court.)
- Episode 259- People v. Flournoy, 2016 IL App (1st) 142356 (November) (Duration 11:44) (Defendant Had A Right To Know The Surveillance Location From Where Police Made Their Observations)
- Episode 292 – In re Manuel M., 2017 IL App (1st) 162381 (January) (Duration 8:55) (Accused minor was not allowed to cross the officer on the location he said he made his observations.)
When Court Records Can Remain Confidential
Our supreme court has noted the presumption of access can be rebutted by demonstrating suppression is essential to preserve higher values and is narrowly tailored to serve that interest.
The case law is clear that the right of access extends to the documents filed with the court.
Illinois Reporter’s Privilege Law
So let’s look at what the applicable law is here in Illinois when it comes to a reporter’s privilege under the freedom of the press. See Reporter’s Privilege 735 ILCS 5/8-901 et seq.; see See Episode 062 – People v. McKee, 2014 IL App (3d) 130696 (December) (Duration 17:16) (Illinois Reporter’s Privilege v. Defendant’s Due Process Rights); see also People v. Pawlaczyk, 189 Ill. 2d 177, 188 (2000).
“The purpose of the privilege is to assure reporters access to information, thereby encouraging a free press and a well-informed citizenry.” Pawlaczyk, 189 Ill. 2d at 187. ¶ 11.
Section 8-901 grants the privilege.
“No court may compel any person to disclose the source of any information obtained by a reporter except as provided in Part 9 of Article VIII of this Act.” 735 ILCS 5/8-901.
A party wishing to divest this privilege from the person claiming it must file a written petition with the court that –
- Names the reporter
- Names the news medium
- Identifies the specific information sought
- Identifies the relevancy of the information to the proceedings
- Identifies a public interest adversely affected
Finally, a divestiture order may only be granted after a court considers certain factors described below:
“In granting or denying divestiture of the privilege provided in Part 9 of Article VIII of this Act the court shall have due regard to the nature of the proceedings, the merits of the claim or defense, the adequacy of the remedy otherwise available, if any, the relevancy of the source, and the possibility of establishing by other means that which it is alleged the source requested will tend to prove.”
First Amendment Right
The United States Supreme Court first recognized a first amendment public right to attend criminal trials in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (1980). Thereafter, Illinois court’s have found a public right of access to court records embodied in the first amendment to the United States Constitution.
See Episode 553 – People v. Zimmerman, 2018 IL 122261 (October) (Duration 10:21) (You can hide lascivious pretrial motions from the press.)
Includes Right To Access
The determination of whether a first amendment right of access attaches to a particular record requires a two-step process under what is typically known as the “experience and logic test.” Press-Enterprise II, 478 U.S. at 9-10 (1986).
If the test of experience and logic is met, a qualified first amendment right of public access attaches to the material.
Common-Law Right of Access Does Not Mean Anything Filed Is Accessible
Under the common law there is a presumption that allows the public to inspect and copy public records and documents, including all documents filed with the court. The availability of court files for public scrutiny is also essential to the public’s right to “monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system.” In re Continental Illinois Securities Litigation, 732 F.2d 1302, 1308 (7th Cir. 1984)).
“When courts are open, their work is observed and understood, and understanding leads to respect.” In re Marriage of Johnson, 232 Ill. App. 3d 1068, 1074 (1992).
The common-law right of access symbolizes the recognition “that the public interest is best served by increasing the public’s knowledge about what is transpiring inside the judicial process.” Skolnick, 191 Ill. 2d at 230 (quoting Newell v. Field Enterprises, Inc., 91 Ill. App. 3d 735, 748 (1980)).
It’s In The Code
In Illinois, the legislature has also codified this common-law right of access to judicial records in section 16 of the Clerks of Courts Act, which provides, in pertinent part:
“All records, dockets and books required by law to be kept by [circuit court] clerks shall be deemed public records, and shall at all times be open to inspection without fee or reward, and all persons shall have free access for inspection and examination to such records, docket and books, and also to all papers on file in the different clerks’ offices and shall have the right to take memoranda and abstracts thereto.”
This court has held, however, that the common-law right of access to judicial records is not absolute.
Right To Access Records Is Not Absolute
But even when a first amendment right of public access attaches to a document, it is not absolute.
As the Supreme Court explained, although open criminal proceedings give assurances of fairness to both the public and the accused, there are some limited circumstances in which the right of the accused to a fair trial might be undermined by publicity.
In such cases, the trial court must determine whether the situation is such that the rights of the accused override the qualified first amendment right of access to the proceeding or material. In Press-Enterprise II, the Court held:
“The first amendment presumption may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”
Press-Enterprise II, 478 U.S. at 9-10 (quoting Press-Enterprise I, 464 U.S. at 510).
Illinois evidence rules also carve out an evidentiary privilege for spouses.
The content of the statements don’t matter. The exception applies to any case that meets the specific circumstances outlined in the statute.
See 725 ILCS 5/115-16.
The spousal privilege does not cover cases that involve the children.
Illinois’s marital communication privilege does not reach
“cases in which either is charged with an offense against the person or property of the other, in case of spouse abandonment, when the interests of their child or children or of any child or children in either spouse’s care, custody, or control are directly…”
How To Conduct Proper Impeachment In An Illinois Courtroom
The goal of one side in a case is to admit evidence. As soon as the evidence is admitted the other side is going to try to discredit.
Impeachment is anything one side does to discredit or cause the other side’s evidence not to be believed. Impeachment come in many forms and techniques.
The fundamental rule of impeachment by a prior inconsistent statement is that the extrinsic evidence of the statement having been made—with which the declarant was confronted on the witness stand—must be the same statement with which the witness was confronted. Here, that did not happen.
See this great example of what went wrong the questioning of this police officer. People v. Lewis, 2017 IL App (4th) 150124 (April). Episode 353 (Duration 14:28) (Judge Steigmann on how to conduct a proper impeachment).
Judge Steigmann’s Guidance On Proper Impeachment
Because so much uncertainty seems to exist among trial lawyers regarding the issue of how to complete the impeachment of a witness through the presentation of extrinsic evidence to establish the inconsistent nature of the witness’ trial testimony, Steigmann offers the following guidance:
The rule that must be followed is that,
“Before a witness may be impeached by a prior statement, a proper foundation must be laid in order to alert the witness, avoid unfair surprise, and to give the witness a chance to explain. The witness must first be asked as to the time, place[,] and persons involved in the alleged conversation; secondly, he must be asked whether he made a certain contrary statement at that time. *** When the impeaching witness is produced, the proper course is simply to ask him whether or not the witness to be impeached made the statement in regard to which he has been questioned at that time and place mentioned. It is improper to ask the impeaching witness to relate the whole conversation.”
Why This Is The Rule
The inherent danger posed by such cross-examination questions is that the jury will ignore the witness’ denial, make a presumption that the insinuation created by the questions is accurate, and substitute the presumption for proof.
The State must have a good-faith basis to ask the cross-examination questions, as well as the intent and the ability to complete its impeachment.
Aside from the fact that none of his recollection is pertinent or admissible except for the narrow and limited purpose of establishing the prior inconsistent statement, an open-ended question to the impeaching witness could result in a surprise to everyone. After all, the impeaching witness might well be testifying (as here) several months after the conversation at issue occurred, and the impeaching witness’ testimony about that conversation could in all honesty be based upon that witness’ current recollection.
- Episode 223 – People v. Evans, 2016 IL App (3d) 140120 (July) (Duration 6:52) (Episode 1: Prior Inconsistent Statement Mini-Course Introduction)
- Episode 224 – People v. Brothers, 2015 IL App (4th) 130644 (September) (Duration 3:54) (Episode 2: The Big Picture Of Prior Inconsistent Statements)
- Episode 225 – People v. Cruz, 162 Ill.2d 314 (1994) (Duration 12:09) (Episode 3: Threshold Questions A Prior Inconsistent Statement Mini Course)
- Episode 226 – People v. Simpson, 2015 IL 116512 (January) (Duration 11:16) (Episode 4: Prior Sworn Or Not Sworn Statement A Prior Inconsistent Statement Mini Course)
- Episode 256 – How Judge Steigmann Really Feels About Impeachment, Prior Inconsistent Statements, And 725 ILCS 5/115-10.1 (Duration 47:16)
- Episode 236 – Paul Meyers On Why Experienced Attorneys Still Confuse Impeachment, Substantive Evidence, and Prior Inconsistent Statements (Duration 36:20)
- Episode 052 – People v. Simpson, 2015 IL 116512 (January) (Duration 23:08) (Prior Inconsistent Statement Impeachment Is Not Necessarily a Thing)
- Episode 236 – Paul Meyers On Why Experienced Attorneys Still Commit Error With Prior Inconsistent Statements (Duration 36:20)
Illinois Rule of Evidence 806
See Episode 575 – People v. Fillyaw, 2018 IL App (2d) 150709 (December) (Duration 5:52) (Improper to not allow the defense to impeach an unavailable witness with an affidavit obtained by the defense.)
Evidence Rule 806 provides:
“When a hearsay statement *** has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.”
Ill. R. Evid. 806 (eff. Jan. 1, 2011).
Illinois Rule of Evidence 804(a)(5)
A witness is unavailable if the witness –
“…is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means.”
Ill. R. Evid. 804(a)(5) (eff. Jan. 1, 2011).
Illinois Rule of Evidence 804(b)(1)
The following is not excluded by the hearsay rule if the declarant is unavailable as a witness:
Testimony given as a witness (A) at another hearing of the same or a different proceeding, or in an evidence deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination, or (B) in a discovery deposition as provided for in Supreme Court Rule 212(a)(5).”
Ill. R. Evid. 804(b)(1) (eff. Jan. 1, 2011).
Illinois Has Written Down The Impeachment With Prior Inconsistent statement Rule In 725 ILCS 5/115-10.1
First, let me report the main news from the decision.
The case deals with the “personal knowledge” requirement of section 725 ILCS 5/115-10.1, Admissibility of Prior Inconsistent Statements, from the Illinois Code of Criminal Procedure.
That section provides that
“In all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement–
(1) was made under oath at a trial, hearing, or other proceeding, or
(2) narrates, describes, or explains an event or condition of which the witness had personal knowledge, and
(A) the statement is proved to have been written or signed by the witness, or
(B) the witness acknowledged under oath the making of the statement either in his testimony at the hearing or trial in which the admission into evidence of the prior statement is being sought, or at a trial, hearing, or other proceeding, or
(C) the statement is proved to have been accurately recorded by a tape recorder, videotape recording, or any other similar electronic means of sound recording.
Nothing in this Section shall render a prior inconsistent statement inadmissible for purposes of impeachment because such statement was not recorded or otherwise fails to meet the criteria set forth herein.”
How To Think Through And Analyze A Prior Inconsistent Statement Problem
To begin with the defense attorney quickly runs through the threshold questions.
⛾ Is the in court testimony inconsistent with the hospital recorded statement? If there is an inconsistency here, it’s inconsistent by omission, but that counts. Counsel isn’t going to put any chips on betting she can convince the court the statement is not inconsistent.
⛾ Next threshold question. Is the prior inconsistent statement material? Hellz yea. Was the kid taking a puff from a can right before the crash? Yes. That’s material. Ok.
⛾ Now we quickly need to rule in or out if Frizzy’s recorded hospital statement is consistent with 725 ILCS 5/115-10.1? Can it come in under the statute as substantive evidence?
⛾ Let’s see was the prior statement, made under oath in a sworn statement? No. No way. Frizzy didn’t testify about this in any other trial, proceeding, or hearing. The state didn’t put him in front of a grand jury either, so no.
⛾ Next question: Was the prior statement recorded? Bingo. They got tape on the kid at the hospital. This looks like it could be a prior consistent statement under the statute. But there is one one quick last question.
⛾ Did Frizzy have personal knowledge of the contents of the statement? Frizzy said he heard a back seat passenger say to defendant, “hey Morgan you shouldn’t be doing that.” Frizzy didn’t say the thing. He heard someone in the back say it. Actually, Frizzy was distracted on his phone either texting his mom or listening to music or both. Frizzy was not paying attention to what the driver was doing. No way. Frizzy has no personal knowledge of the contents of the statement. Bingo. Happy lights are going off in the attorney’s head because she knows what she is going to tell the judge.
⛾ But counsel can’t be done asking questions because even if the state loses on substantive evidence you can bet for darn sure they will try to impeach Frizzy with the statement for impeachment purposes only. This attorney would try that, so she’s pretty sure the prosecutor will try that as well.
⛾ Ok. Who witness is? This is the state’s own witness. If defense counsel was trying to impeach it would be allowed, but this is the state’s own witness so…
⛾ Did this witness affirmatively damage the state’s case? The state has to establish that the witness has affirmative damaged their case if they want to impeach him with a prior inconsistent statement. If the state has just been disappointed they can’t impeach their own witness. The kid actually gave it all up. He just left out that one crucial part. But you know it’s not like Frizzy is saying, he saw the driver and he didn’t have an aerosol can in his hand and he didn’t see him huffing. He’s not saying that. He’s just saying they kept saying his name over and over but he admits he doesn’t know what was happening. That’s not affirmative damage. The kid still admits he doesn’t know what happened. The state is no worse off had they never called Frizzy to the stand. There is no affirmative damage here so they can’t impeach the witness with the prior recorded inconsistent statement.
- Episode 571 – People v. Blakey, 2015 IL App (3d) 130719 (November) (Duration 16:52) (The Huffing Example)
- Episode 120 – Prior Inconsistent Statement: The Most Important Case On The Subject (Duration 7:13)
115-10 Statements In Illinois
Section 115-10 was originally passed in response to the difficulty in convicting persons accused of sexually assaulting young children. This difficulty occurs because children’s testimony in sexual assault cases is often inadequate. Problems in proof may result when the lesser developed cognitive and language skills that children have hinder them in adequately communicating the details of an assault.
The legislature sought to create a hearsay exception to allow into evidence corroborative testimony that the child complained to another person about the incident.
See Episode 285 – People v. Applewhite, 2016 IL App (4th) 140558 (December) (Duration 5:49) (115-10 statements trumps Rule 613(c) which prohibits prior consistent statements.)
The Law On Prior Consistent Statement
“The danger in prior consistent statements is that a jury is likely to attach disproportionate significance to them. People tend to believe that which is repeated most often, regardless of its intrinsic merit, and repetition lends credibility to testimony that it might not otherwise deserve.” People v. Johnson, 2012 IL App (1st) 091730, ¶ 60. See Episode 482 – People v. Anderson, 2018 IL App (1st) 150931 (March) (Duration 8:41) (Prior Inconsistent Statement Error Leads To A Do-Over)
But it is well established that “this rule does not apply to statements of identification.” People v. Temple, 2014 IL App (1st) 111653, ¶ 34.
Under section 115-12 of the Code of Criminal Procedure,
“a statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a person made after perceiving him.”
Such statements are admissible as substantive evidence. People v. Williams, 193 Ill. 2d 306, 359 (2000).
Prior Consistent Statement under Federal Rule 801(d)(1)(B)
However, you can find a comment about a prior consistent statement within the Illinois Rules that says:
Note that FRE 801(d)(1)(B), which makes prior consistent statements of witnesses substantively admissible when “offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive,” has not been adopted. That is so because, as stated supra, Illinois allows such statements to be admitted, but only for rebuttal or rehabilitate purposes, not substantively.
Thus, the rule in Illinois can be stated like this:
“A prior consistent statement may not be used on direct examination to enhance the credibility of a witness’s testimony, except to rebut an allegation of recent fabrication.”
The court said that prior consistent statements are so bad because they are likely to unfairly enhance the witness’s credibility with the trier of fact simply because the statement has been repeated.
“The danger in prior consistent statements is that a jury is likely to attach disproportionate significance to them. People tend to believe that which is repeated most often, regardless of its intrinsic merit, and repetition lends credibility to testimony that it might not otherwise deserve.” See People v. Dupree, 2014 IL App (1st) 111872 ¶ 52. See also A Cross Examination Fumble: One Question Too Many Problem
Illinois Rule 613(c) Governs Prior Consistent Statements
Illinois Rule of Evidence 613(c) (eff. Jan. 1, 2011), which governs prior consistent statements of a witness, provides, as follows:
“(c) Evidence of Prior Consistent Statement of Witness. 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 available 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 fabricated, if the statement was made before the alleged fabrication occurred.”
In general, proof of a prior consistent statement made by a witness is inadmissible hearsay, which may not be used to bolster a witness’s testimony.
Confrontation Law Under Crawford
The confrontation clause is a portion of the sixth amendment to the United States Constitution that provides that…
“[i]n all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him.” U.S. Const., amend. VI.
Crawford v. Washington, 541 U.S. 36, 68 (2004), was a United States Supreme Court decision that tied confrontation clause rights to cross-examination at trial. That decision overturned many evidentiary rules and procedures that allowed law enforcement to present testimonial statements without producing in court the witness who said them.
In Crawford, the Court held that …
“Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: … the Sixth amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68-69.
“When the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements…The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004).
Years of litigation after Crawford focused on the question: What exactly is a testimonial statement? What about…
- 911 Calls
- Hospital Tests
- Lab Reports?
Recent History of Testimonial Statements Under Crawford
The cases that seem significant to this issue were also highlighted by the Illinois Supreme Court. See
1) Melendez-Diaz v. Massachusetts, 577 U.S. 305 (2009) – Drug analysis reports are testimonial because they were created for use in a criminal trial against the accused.
2) Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) – BAC lab reports on a blood-alcohol test are testimonial because they are only created for evidentiary purposes.
3) Williams v. Illinois, 132 S.Ct. 2221 (2012) – In this case, the really bear down on the question of whether or not a scientific report is created for the prosecution of a specific person. Here, DNA reports were found to be non-testimonial, in part because, no prosecution was underway when the testing was done. The report was not created to be used against defendant, but instead was created for the purpose of finding an unknown rapist. Unlike drug and BAC tests, these reports are also used to exonerate people. There was also an argument that said this kind of testing lacked the formality and solemnity associated with testimonial statements.
4) People v. Leach, 2012 IL 111534 – The Illinois Supreme Court has looked at the question of whether autopsy reports constitutes testimonial evidence. The court held that an autopsy report is not testimonial because it is not prepared for the primary purpose of accusing a targeted individual or for the primary purpose of providing evidence in a criminal case.
So looking at these four prior Crawford Issue decisions, we see that we have a big mess on our hands.
- Episode 619 – People v. Smith, 2019 IL App (3d) 160631 (March) (Duration 14:06) (Kid is available for cross even though they don’t remember the actual allegation of sexual abuse.)
- Episode 433 – People v. Dabney, 2017 IL App (3d) 140915 (October) (Duration 8:44) (kid was available for cross even though he she didn’t describer everything)
- Episode 123 – People v. Burnett, 2015 IL App (1st) 133610 (December) (Duration 8:45) (Witness Can Be Available Under Crawford But Unavailable Under Domestic Violence Statute)
- Episode 450 – In re T.Z., 2017 IL App (4th) 170545 (December) (Duration 10:35) (Judge Gets A Little Too Involved With Kid On The Stand: 7 year old victim is allowed to whisper the damaging testimony to the judge who then repeated the statement for the record.)
- “In general, a witness is considered to be present, available for, or subject to cross-examination when the witness takes the stand, is placed under oath, and willingly answers questions, and the opposing party has an opportunity to cross-examine the witness.” People v. Dabney, 2017 IL App (3d) 140915, ¶ 19.
- Where the declarant appears for cross-examination, even where the declarant does not testify to the substance of his hearsay statement, its admission is a nonevent under the confrontation clause. People v. Garcia-Cordova, 2011 IL App (2d) 070550-B, ¶ 66.
- “A gap in the witness’ recollection concerning the content of a prior statement does not necessarily preclude an opportunity for effective cross-examination.” People v. Flores, 128 Ill. 2d 66, 88 (1989).
- “There are no confrontation clause problems merely because the witness’s memory problems preclude him from being cross-examined to the extent the parties would have liked.” People v. Leonard, 391 Ill. App. 3d 926, 934-35 (2009).
The Test For Testimonial Statements
The Illinois Supreme Court has developed the following test to determine whether or not evidence is testimonial in nature.
See Episode 068 – People v. Barner, 2015 IL 16949 (April). (Duration 27:00) (The Illinois Supreme Court sheds some light on whether or not the prosecutors must have each and every DNA analysts involved on a case in court to testify.)
What About Rule 804(a)(3)?
Illinois Rule of Evidence 804 is called Hearsay Exceptions; Declarant Unavailable. The rule says,
“Unavailability as a witness” includes situations in which the declarant–testifies to a lack of memory of the subject matter of the declarant’s statement…”
Rule 804 concerns certain exceptions to the rule against hearsay that are applicable where a declarant is “unavailable as a witness.” Ill. R. Evid. 804.
To be sure, the definition of unavailability in Rule 804 applies when analyzing the admissibility of hearsay statements pursuant to the exceptions outlined in the rule. However, Rule 804 does not concern availability for cross-examination under the confrontation clause.
Defendant has cited no authority to support the proposition that the definition of unavailability in Rule 804 applies in the context of an alleged confrontation clause violation. We reassert that our supreme court has held that “a gap in the witness’ recollection concerning the content of a prior statement does not necessarily preclude an opportunity for effective cross-examination” for purposes of the confrontation clause.
Dichotomy of Results
A court can find a victim was unavailable due both “to a lack of memory” (725 ILCS 5/115-10.2a(c)(3)) and a refusal “to testify concerning the subject matter” of her statement “despite an order of the court to do so.” 725 ILCS 5/115-10.2a(2).
- Episode 123 – People v. Burnett, 2015 IL App (1st) 133610 (December) (Duration 8:45) (Witness Can Be Available Under Crawford But Unavailable Under State Statute)
- Episode 172 – People v. Johnson, 2016 IL App (4th) 150004 (April) (Duration 7:05) (Unsupported Conclusion That Child’s Statement Was Reliable Met Constitutional Standard Under Crawford)
Illinois Rules of Evidence: How To Admit And Authenticate A Facebook Post
“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”
United States v. Vayner, 769 F.3d 125 (2d Cir. 2014), best represents a line of cases that is on point and persuasive on this issue.
The Second Circuit observed that the requirement is satisfied if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification; the ultimate determination as to whether the evidence is, in fact, what its proponent claims is thereafter a matter for the jury.
Further, the nature and quantum of evidence needed is related to the purpose for which the evidence is offered and depends on a context-specific determination of whether the proof advanced is sufficient to support a finding that the item in question is what its proponent claims it to be.
The Second Circuit declared that “the bar for authentication of evidence is not particularly high” and “the proponent need not rule out all possibilities inconsistent with authenticity, or *** prove beyond any doubt that the evidence is what it purports to be.”
However, there must be at least sufficient proof for a reasonable juror to find in favor of authenticity.
Social Media Foundation
The authentication of social media poses unique issues regarding what is required to make a prima facie showing that the matter is what the proponent claims.
Creating a Facebook account is easy.
That’s precisely the problem. Anyone at least thirteen years old with a valid e-mail address could create a profile. Not only can anyone create a profile and masquerade as another person, but such a risk is amplified when a person creates a real profile without the realization that third parties can ‘mine’ their personal data.
Friends and strangers alike may have access to family photos, intimate details about one’s likes and dislikes, hobbies, employer details, and other personal information, and, consequently, the desire to share information with one’s friends may also expose users to unknown third parties who may misuse their information.
Thus, concern over authentication arises because anyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password, and, consequently, the potential for fabricating or tampering with electronically stored information on a social networking website is high and poses challenges to authenticating printouts from the website.
Examples Of Ways To Authenticate Social Media
The mere fact that a Facebook post on a profile with defendant’s alleged alias and photograph happened to exist on the Internet for a brief period after the offense does not permit a reasonable conclusion that the post was created by defendant or on his behalf.
The ease in fabricating a social media account to corroborate a story means that more than a “simple name and photograph” are required to sufficiently link the communication to the purported author under Rule 901.
(1) the purported sender admits authorship,
(2) the purported sender is seen composing the communication,
(3) business records of an Internet service provider or cell phone company show that the communication originated from the purported sender’s personal computer or cell phone under circumstances in which it is reasonable to believe that only the purported sender would have had access to the computer or cell phone,
(4) the communication contains information that only the purported sender could be expected to know,
(5) the purported sender responds to an exchange in such a way as to indicate circumstantially that he was in fact the author of the communication, or
(6) other circumstances peculiar to the particular case may suffice to establish a prima facie showing of authenticity.
Evidence may be authenticated in many ways, and as with any piece of evidence whose authenticity is in question, the type and quantum of evidence necessary to authenticate a web page will always depend on context.
Under our rules, a witness who is not an expert may testify to his opinions or inferences unless they are “based on scientific, technical, or other specialized knowledge.” Ill. R. Evid. 701 (eff. Jan. 1, 2011). If such knowledge is relied upon, the witness must be qualified as an expert. Ill. R. Evid. 702 (eff. Jan. 1, 2011). ¶ 26
An officer with many years of experience or with specialized training relevant to the issue may be more credible than a rookie. That said, nothing in our precedent requires expert testimony in every case involving the question of whether a defendant was under the influence of drugs.
- Episode 380 – People v. Martin, 2017 IL App (4th) 150021 (June) (Duration 9:58) (In DUI Trial Officer Can Give Opinion Testimony Of Intoxication)
- Episode 381 – People v. O’Donnell, 2015 IL App (4th) 130358 (March) (Duration 12:56) (Police Not Allowed To Testify They Can Tell When An Arrestee Is Lying)
- Episode 135 – People v. Thompson, 2016 IL 118667 (January) (Duration 6:10) (Police Can Offer Opinion Testimony of Who They Think Is Depicted In a Video)
- Episode 540 – People v. Gocmen, 2018 IL 122388 (September) (Duration 14:15) (Expert Testimony On Drug Use Is Not Always Required Sometimes Any Joe Shmoe Can Identify Impairment From Drug Use)
Ultimate Fact Doctrine
But the court rejected this idea, noting that: Illinois courts have rejected the so-called “ultimate fact” doctrine, which held that a witness may not express his opinion as to the ultimate issue in a case.
This is so because the trier of fact is not required to accept the witness’ conclusion and, therefore, such testimony cannot be said to usurp the province of the jury. See also Ill. R. Evid. 704. (“Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”)
Illinois Rule Of Evidence 701
“If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”
Also There’s Past & Present Opinions
– In People v. Hanson, 238 Ill. 2d 74, 939 N.E.2d 238 (2010), the supreme court drew a line between past and present opinions, concluding statements of past opinions were not improper lay opinions and were admissible.
– In People v. Henderson, 394 Ill. App. 3d 747, 753, 915 N.E.2d 473, 478 (2009), we explained the uselessness of “human lie detector” testimony.
Eye Witness Testimony
For Illinois evidence cases covering eye witness testimony see
- Episode 392 – In re Christian W., 2017 IL App (1st) 162897 (August) (Duration 22:36) (Unreliable eyewitness is established when defense establishes that the police fed information to the witness.)
- Episode 578 – In re N.A., 2018 IL App (1st) 181332 (December) (Duration 7:08) (Single Finger Eyewitness Identification Cases Remain Alive And Well)
Single Eyewitness Sufficient To Convict
A single eyewitness identification of the accused is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification. People v. Davis, 2018 IL App (1st) 152413, ¶ 55.
A vague or doubtful identification will not suffice. Illinois courts look at the totality of the circumstances and consider the following factors to determine whether an eyewitness identification is reliable:
(1) The witness’s opportunity to view the suspect during the commission of the offense
(2) The witness’s degree of attention
(3) The accuracy of any prior descriptions provided
(4) The witness’s level of certainty at the time of the identification procedure and
(5) The length of time between the crime and the identification.
People v. Slim, 127 Ill. 2d 302, 307–08 (1989); Neil v. Biggers, 409 U.S. 188, 199 (1972). Respondent argues that the victim’s identification is unreliable.
People v. Lerma Not An End All
We have not only seen that eyewitness identifications are not always as reliable as they appear, but we have also learned, from a scientific standpoint, why this is often the case. See People v. Lerma, 2016 IL 118496.
- See also Episode 132 – People v. Lerma, 2016 IL 118496 (January) (Duration 5:16) (Eyewitness Expert Testimony Validated by Illinois Supreme Court)
- Episode 246 – Meet A Real Life Eyewitness Identification Expert: Professor Shari Berkowitz (Duration 44:57)
- Episode 247 – Professor Karen Daniel Shares Her Insight And Experience On Eyewitness Identification Litigation (Duration 32:18)
- Episode 293 – People v. Anderson, 2017 IL App (1st) 122640 (January) (Duration 10:22) (Trial Court Distinguishes The Hell Out Of Lerma To Deny The Use Of Eyewitness Expert)
- Episode 027 – How To Admit Eyewitness Identification Expert Testimony (Duration 14:49)
- Episode 618 – People v. Corral, 2019 IL App (1st) 171501 (March) (Duration 11:38) (Eyewitness Expert Not Allowed To Get Into Individual Witnesses Reliability)
- Episode 604 – People v. Macklin, IL App (1st) 161165 (March) (Duration 11:38) (defense counsel no ineffective for not calling an eyewitness expert witness)
Opinion On Credibility Testimony
Notably, in Lerma, Dr. Loftus also indicated he would not “issue judgments” about whether the witnesses’ memories or assertions were correct and that any part that implied the unreliability of the eyewitness should not be construed as meaning that the defendant was innocent.
Under Illinois law, it is generally improper to ask one witness to comment directly on the credibility of another witness. People v. Kokoraleis, 132 Ill. 2d 235, 264 (1989); People v. Henderson, 394 Ill. App. 3d 747, 753-54 (2009). This is because “questions of credibility are to be resolved by the trier of fact.” Kokoraleis, 132 Ill. 2d at 264.
Thus, in this case the trial court did not abuse its discretion when it prohibited the defense from presenting Dr. McClure’s opinion regarding the reliability of Vargas’s identification.
Article 14 of the Criminal Code defines the criminal offense of eavesdropping as well as its exemptions. 720 ILCS 5/14-1 et seq. Under section 14-2(a) of the Criminal Code, a person commits eavesdropping when he uses an eavesdropping device, in a surreptitious manner, for purpose of overhearing or recording a private conversation unless he does so with the consent of all of the parties to the private conversation. 720 ILCS 5/14-2(a).
See Episode 409 – People v. Brindley, 2017 IL App (5th) 160189 (August) (Duration 10:51) (The State’s Attorney may authorize an overhear in drug investigations.)
Section 14-3 of the Criminal Code defines “activities [that] shall be exempt from the provisions of [Article 14 of the Criminal Code].” 720 ILCS 5/14-3.
What About 108A Of The Code Of Criminal Procedure?
Article 108A of the Code of Criminal Procedure concerns judicial supervision of the use of eavesdropping devices. 725 ILCS 5/108A-1 to 108A-11.
Section 108A-1 states that a State’s Attorney may apply to a circuit court judge for authority to use an eavesdropping device by a law enforcement officer where any one party to a conversation to be monitored has consented to such monitoring. 725 ILCS 5/108A-1.
Article 108A includes, among other things, the procedures for obtaining judicial approval to use an eavesdropping device, grounds upon which a judge may grant approval, the contents of any order granting the approval, requirements for retaining any recordings, and notice to the parties overheard. Under the clear and unambiguous language of the two statutes, however, they are each separate and alternative methods for law enforcement to use eavesdropping devices under different circumstances.
Illinois Rule of Evidence 702 On Expert Witness
Illinois Rule of Evidence 702 (eff. Jan. 1, 2011) provides that,
“If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
- People v. King, 2018 IL App (2d) 151112 (August). Episode 530 (Duration 16:26) (State’s expert witness who came in to plug the holes in their case got a little carried away.)
- The Report
- The Other Report
- Episode 082 – People v. Jones, 2015 IL App (1st) 121016 (April) (Duration 20:56) (How To Admit An Expert Witness And Exclude An Unreliable One)
- Episode 245 – People v. Simmons, 2016 IL App (1st) 131300 (September) (Duration 9:10)(Attacking Expert Witness “Foundation” Not The Way To Exclude Unreliable Opinion Testimony)
- Episode 213 – People v. Burhans, 2016 IL App (3d) 140462 (July) (Duration 5:38) (Expert Witnesses Under Higher Scrutiny)
- See Marisa Tomei From My Cousin Vinny Great Example Of How An Expert Witness Works
- Episode 213 – People v. Burhans, 2016 IL App (3d) 140462 (July) (Duration 5:38) (Expert Witnesses Under Higher Scrutiny)
Laying a Foundation
Getting back to “foundation,” what we mean by “foundation” is that the expert witness satisfies the points made in Rule 702.
The custom in a trial is that the expert witness takes the stand to first answer answer questions about their qualifications as an expert. If the judge and the opposing counsel are satisfied then the witness continues to testify about what her opinion in the case happens to be.
This process is called a voir dire of the witness. This just means that either the judge or the attorneys are allowed to ask questions to establish, or not establish, the qualifications of the expert. If a witness does not get passed voir dire they will not be allowed to testify any further. See also Qualifying the Expert Witness: A Practical Voir Dire.
If you look carefully at Rule 702, it actually does not spell out a specific protocol to become an expert witness. No specific degree or education is required. Yes, having a college degree or advanced degree can be one way to establish expertise as an expert witness, but it is not the only way.
No Frye Hearing Required
Crime-scene analysis” testimony does not rest on scientific principles. Simmons, 797 So. 2d at 1151; State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002). Rather, it is based on “specialized knowledge” and offers “subjective observations and comparisons based on the expert’s training, skill, or experience.” Simmons, 797 So. 2d at 1151.
Therefore, such testimony is not subject to the test outlined in Frye v. United States, 239 F. 1013 (D.C. Cir 1923). Simmons, 797 So. 2d at 1151.
- See Episode 278 – How To Win A Motion For Funds To Hire An Expert With Joshua Kutnick (Duration 23:42)
- See Episode 245 – People v. Simmons, 2016 IL App (1st) 131300 (September) (Duration 9:10) (Trial judge easily dismisses shoddy firearm expert testimony and sustains life sentence in this murder case.)
The Law On Destruction Of Evidence
The Supreme Court noted that the police do not have “an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution” and held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Youngblood, 488 U.S. at 58.
Fourteenth Amendment, as interpreted in Brady v. Maryland, 373 U.S. 83 (1963), makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence.”
- People v. Cunningham, 2018 IL App (1st) 153367 (June). Episode 517 (Duration 12:37) (Dismissal of the charges was not warranted when police destroyed some of the evidence.)
- People v. Acevedo, 2017 App (3d) 150750 (March) – Episode 309 (Here’s A DUI Discovery Sanction With No Teeth (It’s Not The Civil Inference Thing)
- People v. Moore, 2016 IL App (1st) 133814 (February). Episode 149 (Discovery Sanction is No Sanction At All)
- People v. Tsiamas, 2015 IL App (2d) 140859 (December). Episode 122 (DUI Discovery Violation | You Can’t Ignore the Notice)
- People v. Moravec, 2015 IL App (1st) 133869 (November) – Episode 105 (DUI Discovery Sanctions Upheld)
- People v. Olson, 2015 IL App (2d) 140267 (June) – Episode 077 (DUI Discovery Violation Suppression of Evidence)
Other Crimes Evidence
“It is well settled under the common law that evidence of other crimes is admissible if relevant for any purpose other than to show a defendant’s propensity to commit crimes.”
Evidence of other crimes is admissible to show:
- lack of mistake and
- modus operandi.
Also, other crimes evidence is admissible to show consciousness of guilt.
However, even if such evidence is offered for a permissible purpose, it “will not be admitted if its prejudicial impact substantially outweighs its probative value.”
What is Prior Bad Acts Evidence?
Imagine a defendant has committed two sex crimes. Defendant did the same thing to two different victims. Essentially, this imaginary defendant lured and threatened his victims into his car where he sexually assaulted them. He did this twice, on two different occasions, with two different victims.
Let’s call the first victim, Victim A. Let’s call the second victim, Victim B.
Now let’s pretend that the State chooses to prosecute and proceed to trial first on the charges involving Victim A.
Generally, the law does not allow the prosecution to allow the prosecution to mention the first crime involving Victim A in the trial involving Victim B and vice versa. There are exceptions, but that’s another article.
Sex Cases Are Different
However, in sex cases the general prohibition against admitting prior bad acts evidence or other crimes evidence is relaxed. Any prior sex crimes a defendant may have committed are likely to be revealed to a jury deliberating on a new charge if the new charge is also a new sex crime.
In fact, the Illinois Compiled Statutes Criminal Code says that any prior sex offense may admitted against a person currently charged with a sex case “(if that evidence is otherwise admissible under the rules of evidence) and may be considered for its bearing on any matter to which it is relevant.” See 725 ILCS 5/115-7.3(b).
These words, “for its bearing on any matter to which it is relevant” have been interrupted to include the Defendant’s propensity to commit sex crimes. This means the jury is allowed to consider the Defendant’s:
- Nature, and
..to commit sex crimes when the evaluate and consider the other crimes evidence in the case that they are deciding. See People v. Donoho, 204 Ill.2d 159, 176, 788 N.E.2d 707, 718 (Ill. 2003).
Now, the prior bad acts evidence in sex cases are not automatically admissible in a subsequent trial. The law still requires the judge to balance and weight certain factors. Before committing other crimes evidence, the following must happen:
It’s a Balancing Test
“In weighing the probative value of the evidence against undue prejudice to the defendant, the court may consider:
(1) The proximity in time to the charged or predicate offense;
(2) The degree of factual similarity to the charged or predicate offense; or
(3) Other relevant facts and circumstances.”
Back to Answering, What is Prior Bad Acts Evidence?
Let’s get back to our example.
So, prior bad evidence is when the prosecution is allowed to admit previous crimes, wrong doing, or prior bad acts of a defendant in a subsequent trial for a different crime.
What if Defendant is Found Not Guilty of the Prior Crime?
What happens, if Defendant is acquitted and found not guilty of committing the crime against Victim A. That is, What happens if Defendant wins his first trial? Is the State still allowed to admit evidence of the crime involving Victim A in Defendant’s second trial involving Victim B?
In Illinois, the case of People v. Baldwin, explained that an acquittal of a prior crime has no bearing on the admissibility of that other crime in a subsequent trial involving a different crime. See Episode 023 – People v. Baldwin, 2014 IL App (1st) 121725 (August) (Duration 12:32) (Prior Bad Acts Admissible Even If Found Not Guilty | In Sex Cases Other Crimes Are Coming In); see also People v. Jackson, 149 Ill. 2d at 550 (quoting Dowling v. United States, 493 U.S. 342, 349 (1990).
Other Crimes Evidence In Domestic Cases
In this domestic battery the state admitted a prior domestic battery pursuant to 725 ILCS 5/115-7.4.
The other-crimes evidence may be introduced for any relevant purpose, including to establish the defendant’s propensity to commit the charged offense.
As required by section 115-7.4, the trial court must—as with any evidence—balance the probative value of the proffered evidence against its prejudicial effect. 725 ILCS 5/115-7.4(b).
In conducting that balancing test, the court should consider, in particular, the other crime’s
(1) Proximity in time and
(2) Degree of factual similarity to the charged offense,
in addition to any other relevant facts and circumstances.
To be admissible under section 115-7.4, the other-crimes evidence must bear merely “general similarity” to the charged offense.
See Episode 304 – People v. Heller, 2017 IL App (4th) 140658 (January) (Duration 5:23) (Use This Modified IPI 3.14 With Domestic Violence Other Crimes Cases)
Other Character Evidence: Illinois Rule of Evidence 404(a)(1) & 405(a)
The Illinois Rules of Evidence have completely abrogated the prior rule prohibiting defendants from introducing character evidence through opinion testimony and instead expressly permitted the practice.
The rules now states that:
“In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same…”
The first part expressly prevents prosecutors from getting into defendant’s character.
Rule 405 then gets into the form of this evidence.
“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.”
See Episode 216 – People v. Garner, 2016 IL App (1st) 141583 (August) (Duration 7:21) (Expert witness may testify as to the defendant’s character to commit the crime.)
Mental Health Record
It is well established under Illinois law “evidence of a witness’ mental condition is admissible to the extent it bears upon the credibility of the witness’ testimony.”
Illinois supreme court rule 415(f) provides a procedure for allowing documents reviewed in camera to be a part of the appellate record. Ill. S. Ct. R. 415(f).
Rule 415(f) provides:
“(f) In Camera Proceedings. Upon request of any person, the court may permit any showing of cause for denial or regulation of disclosures, or portion of such showing, to be made in camera. A record shall be made of such proceedings. If the court enters an order granting relief following a showing in camera, the entire record of such showing shall be sealed, impounded, and preserved in the records of the court, to be made available to the reviewing court in the event of an appeal.”
What It Means
A defendant need only file a motion pursuant to Rule 415(f) before the trial court in order to ensure the documents which were reviewed in camera are available to the appellate court.
Not Ordering An Exam
See 725 ILCS 5/115-7.1 – Court may not order mental examination of sex victim.
“Except where explicitly authorized by this Code or by the Rules of the Supreme Court of Illinois, no court may require or order a witness who is the victim of an alleged sex offense to submit to or undergo either a psychiatric or psychological examination.”
See Episode 299 – People v. Viramontes, 2017 IL App (1st) 142085 (January); People v. Jones, 2017 IL App (1st) 143403 (January) (Duration 5:53) (Defendant has a right to in camera inspection of mental health records, but he has to ask for it.)
- Episode 448 – People v. Horine, 2017 IL App (4th) 170128 (December) (Duration 16:18) (Normal Rules Of Evidence Do Not Apply During A Statutory Summary Suspension Hearing In Illinios)
- Episode 617 – People v. Ruiz, 2019 IL App (1st) 152157 (March) (Duration 15:47) (Be Careful With Admissions By Omissions)