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Committee studies codification of evidence rules: a new Supreme Court special committee is charged with devising a more convenient organizational scheme for the Illinois rules of evidence.

In an interview shortly before his September swearing-in ceremony, Chief Justice Thomas Fitzgerald of the Illinois Supreme Court remarked that "having the rules of evidence in a single location, whether rule or statute, would be of enormous value to the practitioner" and indicated his intention to discuss the idea with his colleagues. Wasting no time, the court has now formed a Special Committee on Illinois Evidence charged with that very mission.

Following the federal model

The court announced on November 24 that it had appointed what it termed a "blue ribbon panel" of lawyers, judges, legislators, and law professors to the committee. Members include two heavyweight Illinois legislator-lawyers, incoming Illinois Senate President John Cullerton and Illinois House Republican leader Tom Cross, as well as Illinois's solicitor general, Michael Scodro, and several trial and appellate judges. Professor Ralph Ruebner, an associate dean at John Marshall Law School, will serve as the committee's reporter.

University of Miami law professor Michael Graham, formerly of the University of Illinois and co-author of Cleary and Graham's "Illinois Evidence," has agreed to serve as advisor to the committee. The committee chair is Hon. Donald C. Hudson, lately chief judge of the Sixteenth Judicial Circuit and now sitting by appointment on the Second District of the Illinois Appellate Court.

The committee met for the first time on December 18, at which time, Hudson said, the members reviewed its charge from the high court: to codify existing law, not to amend or to rewrite the law. To provide structure for its task, Hudson said, "the committee agreed to follow the numbering system and topical chronology of the Federal Rules of Evidence."

Those rules, he noted, were adopted in 1975, and many practitioners are familiar with them. Using their format for Illinois's state rules, then, should make them far more user-friendly. Moreover, he continued, some of the federal rules of evidence have been incorporated into state case law over the 30-odd years since their adoption.

Leveling the playing field

Retired appellate justice and committee member Gino DiVito noted that Illinois will be joining the large majority of states that have adopted the Federal Rules of Evidence or similarly codified versions. DiVito noted that he served on an earlier committee set up by the supreme court in 1975 that also considered codification of the state rules of evidence. Over a four-year period, that committee, he said, put together a codification of the rules similar to the then newly adopted federal rules and submitted it to the supreme court.

But at that time, he said, codification of the evidentiary rules was still very new. In fact, Illinois was then one of the first states to convene a committee to consider codification. After releasing the report for comment, DiVito said, the supreme court ultimately decided not to adopt the committee's recommendation.

DiVito anticipates a far different reaction to this committee's work from the legal community. "I think everyone's thrilled at the prospect of having the rules of evidence codified in one place. This will allow the novice to play on the same field as the experienced attorney. The rules will be easy to find and right on point--you won't have to do lots of research to find out what the rule is and then find out that it's stated in different ways by different courts." And, though prediction is difficult, DiVito hopes and guesses that this time around the committee's work will take around half the time that the earlier committee required.

Hudson couldn't agree more with DiVito's assessment of the committee's mission: "It's an ambitious undertaking and one whose time has arrived. Justice Fitzgerald's goal of codifying the rules of evidence in a single location is progressive and will be extraordinarily helpful for Illinois lawyers and judges."

Hudson noted that committee members will have the benefit of instantaneous communication by e-mail and a special judicial Internet discussion group between meetings. Professors Graham and Ruebner, he said, are kicking off the committee's work by beginning to identify provisions of Illinois law that fall under the various topics of the federal rules and will be reporting back to the committee at its second meeting, which has been scheduled for February 2.
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Publication:Illinois Bar Journal
Date:Feb 1, 2009
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