Putting the "hearing" in public hearings: a lawyer's testimony in the Supreme Court committee hearing on the new evidence rules produces results.

What happens when a supreme court committee releases a draft rule or rules, invites comments, and schedules a public hearing prior to submitting a recommendation to the court?

Chicago lawyer Bruce R. Pfaff's experience with the Special Supreme Court Committee on Illinois Evidence shows that those committees care about lawyers' views on their proposals. Thoughtful, reasoned commentary from lawyers can result in meaningful amendments to proposed rules before a committee submits its final recommendation to the court.

A Fryeable court

As described in the article beginning on page 620, in February 2010, the Special Supreme Court Committee on Illinois Evidence released its 69-page draft evidence code. The committee invited comments and scheduled public hearings on the draft code for May in Chicago and Springfield.

On reviewing the committee's draft, Pfaff had some serious concerns. Chief among them was draft Rule 702, Testimony By Experts. As initially proposed, the rule repeated the first portion of FRE 702, "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," and omitted the remainder of the federal rule, which imposes additional conditions on the testimony's admissibility.

In written comments to the committee, Pfaff and several colleagues asked the committee to consider including an additional sentence unequivocally stating that Illinois continues to embrace the Frye/Donaldson test for the admission of expert testimony.

The Frye standard gets its name from Frye v US, 293 F 1013 (DC Cir 1923) and is commonly called the "general acceptance" test. It provides that scientific evidence is admissible at trial only if the methodology or scientific principle upon which the opinion is based is "sufficiently established to have gained general acceptance in the particular field in which it belongs." (Frye, 293 F at 1014.)

In Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579 (1993), the U.S. Supreme Court held that the Federal Rules of Evidence had superseded the "general acceptance" test set forth in Frye. But the state jurisdictions are split between those that retain the Frye standard and those that have embraced Daubert.

In Donaldson v Central Illinois Public Service Co, 199 Ill 2d 63, 767 NE2d 314 (2002), the Illinois Supreme Court rejected Daubert and reaffirmed the Frye standard. Pfaff and his colleagues proposed adding another sentence to the initial draft of Rule 702 to make it clear that Donaldson, and, by extension, Frye, remains the law of Illinois as to the admissibility of expert testimony.

After its hearings in May, the committee did so. In one of the few official comments appended to the rules, the supreme court has explicitly confirmed that Illinois remains a Frye state, pursuant to the Donaldson opinion. Pfaff said he's pleased with the change.

Take the time to testify

Among other matters, Pfaff and five colleagues also expressed a concern about the committee's initial inclusion of subparagraph (18) of Rule 803, Hearsay Exceptions--Learned Treatises. In its February draft, the committee had provided that statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of a witness or by judicial notice, might be read into evidence to the extent they were called to the attention of an expert witness during cross-examination or relied on by the expert witness in direct examination.

In written comments to the committee, Pfaff cited several recent cases from the Illinois Appellate Court holding that such statements are hearsay. The Rules reserve that paragraph.

Pfaff has submitted comments to and testified a number of times before various supreme court committees on proposed changes to the supreme court rules. "On each occasion, I felt that there was something that an active trial practitioner could add to the committee's work to support it or to give it an idea to modify a proposed rule. Rules are often drafted to resolve one problem or issue that has arisen, but the committees may not realize that there are other problems that the rule creates that haven't been addressed by the proposed change."

Pfaff encourages lawyers to review proposed rules carefully and consider whether they might help bench and bar by commenting or testifying. "The public hearing and comment process is a wonderful opportunity to try to find ways to improve our rules. My experience is that both the committee and the court are receptive to hearing comments from the lawyers. When we're going to have to work with these rules for the rest of our careers, we should review them to try to make them better."