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Non-identical twins: the Illinois and Federal Rules of evidence: though the Illinois Rules of Evidence are modeled on the Federal Rules of Evidence, important differences between the two limit the persuasive power of federal precedents in Illinois.


As this month's cover story explains, the new Illinois Rules of Evidence let's call it the codified version of the "IRE," a nod to the FRE after which it was modeled--take effect January 1, 2011. Helen Gunnarsson's article (page 620) describes the basics of the new code.

As is noted there, the IRE and FRE follow the same basic format and use the same numbering system. Other states have also codified their evidence laws based on the FRE model, and thus both federal and other-state precedents are available as guides. There are, however, key differences between the IRE and FRE that limit the usefulness of those precedents.

The differing role of legislators

The Illinois Supreme Court recognized as appropriate both past and future evidence lawmaking by the Illinois General Assembly. Yet the roles of federal and state legislators clearly differ. In Washington, unlike in Springfield, the legislative branch typically has the last word.

Under 28 USC section 2074(a), new or amended evidence rules proposed by the U.S. Supreme Court are transmitted to Congress for review. "Such rules shall not abridge, enlarge or modify any substantive right." 28 USC section 2072(b). Transmissions "take effect . . . unless otherwise provided by law." As for evidentiary privileges, no transmission "shall have force or effect unless approved by Act of Congress." 28 USC section 2074(b).

In Springfield, rule proposals are not similarly transmitted to the General Assembly and their impact on substantive rights is not expressly con strained. While the Illinois Code of Civil Procedure limits Illinois Supreme Court rulemaking to matters "supplementary to, but not inconsistent with" the Code, under the Illinois Supreme Court Rules this limit apparently applies only to statutes other than the Code that regulate "the procedure in a particular kind of action" such as probate or divorce. (For more on the court's role vis a vis the legislature's, see the sidebar accompanying Helen Gunnarsson's article.)

The differing rules

As the cover story notes, there are key substantive differences between the IRE and FRE. For example, IRE 702 confirms Illinois as a Frye state while FRE 702 operates under the Daubert standard for admitting expert testimony. As for former testimony and hearsay exceptions, IRE 804(b)(1) refers to "an evidence deposition" while FRE 804(b)(1) refers to "a deposition" (since the Federal Civil Procedure Rules (FRCP) do not distinguish between discovery and evidence depositions).

There are also notable absences from the IRE of provisions that appear in the FRE. For example, there is no IRE equivalent to FRE 502. FRE 502, added in 2008 (and coordinated with FRCP 26(b) (5)(B)), addresses waivers of disclosed and undisclosed information arguably subject to attorneyclient privilege or work-product protection.

In the federal courts, some inadvertent disclosures are found not to waive the privilege/protection, while others only waive it for the disclosed information. Because there is no explicit rule that Illinois case law governs waivers in state court, at least one federal court describes state precedents as unclear. Howell v Joffee, 483 F Supp 2d 659 (ND Ill 2007) (finding the Illinois Appellate Court districts "split" on "whether an inadvertent disclosure can constitute a waiver," with no authority from the Illinois Supreme Court).

Also, Illinois state courts will probably be reluctant to grant waivers outside of the attorney-client privilege and work-product protection context. Such waivers are governed by a mix of rules and statutes.

In the federal courts, however, FRE 501 directs that in the absence of a controlling statute, nonconstitutional privilege laws are "governed by the principles of common law" developed "in the light of reason and experience." Congress has not said much about privileges, whether longstanding or new.

By way of contrast, the Illinois General Assembly often has spoken on privileges in the Code of Civil Procedure, including privileges for husband and wife (both testimonial and communications), physician and patient, informants, clergy, reporters, and voters. It has addressed privileges elsewhere, e.g., in the Mental Health and Developmental Disabilities Confidentiality Act and the Hospital Licensing Act.

The differing cases

Even where the IRE and FRE have identical or similar provisions, federal and Illinois case law interpreting them can still vary. This is as it should be.

Thus, Illinois courts will apply the control-group test for privileged communications between attorneys and corporate clients even in the new IRE 501. In the federal courts, the comparable test under FRE 501 is more protective of confidential communications. Compare Consolidation Coal Co v Bucyrus-Erie Co, 89 Ill 2d 103, 432 NE2d 250 (1982) (embracing control group) with Upjohn Co v United States, 449 US 383 (1981) (rejecting control group).

Even where there are not yet any differences in interpretation between the IRE and FRE, they might arise in the future. While FRE cases may be "instructive," they need not be "persuasive." See, e.g., State v Terrazas, 189 Ariz 580, 944 P2d 1194 (1997) (differing standard of proof for prior bad acts through the Arizona and federal evidence rules are similar).


The IRE are modeled on the FRE. Yet because most of the differences between Illinois and federal evidence laws continue in the IRE, FRE precedents will not always guide uses of the IRE. Where the FRE and IRE align, however, FRE precedents - advisory committee notes, Congressional debates and reports, federal case precedents, and the like--are more likely to be persuasive, as might similar precedents from other states that follow the FRE model.

As was the case before the IRE, Illinois statutes--in and outside of the Civil and Criminal Procedure Codes--will often guide Illinois judges and lawyers. So too will many new and old case precedents. Yet now the IRE will also guide, operating at times like their FRE counterparts. And in some instances, as with some privilege waivers, uncertainty over Illinois evidence laws will continue even with the new set of rules.

Jeffrey A. Parness is professor emeritus at Northern Illinois University College of Law and a visiting professor at The John Marshall Law School.
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Author:Parness, Jeffrey A.
Publication:Illinois Bar Journal
Date:Dec 1, 2010
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