1 Hearsay in Illinois and some other stuff Hon. Stuart E. Palmer (RetHearsay in Illinois and some other stuff Hon. Stuart E. Palmer (Ret.) JAMS Hon. Jeffrey L. Warnick Circuit Court of Cook County, IL

2 “Evidence” 2AM CLUB Out of sight, out of mindFinally leaving you behind I’m doing the one thing that makes sense And getting rid of all the Evidence

3 Scenarios - Background AA, BB, CC: sidewalk Main and Elm, intersection controlled by traffic light signals Each saw white van EB Elm collide with blue Chevy NB Main Chevy=Sam Smith, seriously injured Van=Joe Jones, (Acme Quick Delivery)

4 Background (continued)Officer Patrick interviews: Jones, AA, BB, CC on scene (Smith unconscious) AA, BB, CC all say Van "at a high rate of speed", about mph, went through red light and hit Chevy AA very upset, shaking, tearful, speaking loudly BB, CC calm and composed

5 Background (continued)Jones, Van driver tells Off. Patrick: Entered on green light, not more than 30 mph. Employed by Acme to deliver packages Day before foreman told Jones, speed up, taking too long, customers complaining Behind schedule Officer Patrick writes report at scene including statements and demeanor of witnesses

6 Background (continued)Smith sues Jones and Acme Negligence by Acme's agent, Jones and Negligent hiring of Jones by Acme Acme admits Jones agent at the time AA now deceased, never deposed, no other statements BB, CC deposed 6 mos. b/4 trial: Van "at a high rate of speed", about 45 mph, went through red light and hit Chevy

7 Background (continued)Jones deposed 5 mos. b/4 trial: 30 mph/speed limit Day before speeding ticket same area, later pled G, had to speed, behind schedule Told Acme, 3 yrs ago when hired, convicted speeding 4xs previous 2 yrs. Foreman never told me to speed up because customers complaining re late deliveries. 

8 “Hearsay” Alexander O’NealHearsay, it’s nothin’ but hearsay Because a lie’s not the truth Until you can prove it Where’d you get that information from?

9  IRE 801 (c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Rule 802       Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Supreme Court, or by statute as provided in Rule 101.

10 1. Can Off. Patrick testify to what AA told him?RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

11 2. P offers Off. Patrick’s report for AA’s forgotten statement. Ruling?803(8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies,… excluding, however, police accident reports. (S.Ct. Rule 236(b) also excludes police accident reports from business records) 803(5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.

12 Hearsay within HearsayRULE 805. HEARSAY WITHIN HEARSAY       Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

13 Present Sense ImpressionIRE 803 (1) is reserved! Illinois has not adopted the FRE 803(1) Present Sense Impression exception to the hearsay rule! (FRE 803(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.) But See: P. v. Alsup, 373 Ill. App. 3d 745 (2007) But But See: P. v. Stack, 311 Ill. App. 3d 162 (1999), DiVito, Ill. Rules of Ev. 2016, U.S. v. Boyce, 742 F. 3d 792 (7th. Cir.)J. Posner, specially concurring.

14 3. P offers radio dispatch to Off. Patrick. Ruling?   801(c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. If offered for some other purpose, such as to explain the course of investigation, how he came to the scene, then not offered for the truth of the matter asserted and thus not hearsay.

15 Rule 403. EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR WASTE OF TIME        ”Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Too much information for the purpose it is offered can be solved by redaction.

16 4. P offers accident report to show D driver’s conditionPublic record? Business record? Refresh recollection? Recorded recollection? Foundation? Once had knowledge, but now can’t recollect Made or adopted when fresh in memory Reflects knowledge correctly.

17 5. P asks Off. Patrick what D said about his delivery schedule. Ruling? 801(d) Statements Which Are Not Hearsay. A statement is not hearsay if  (2) Admission Statement by Party-Opponent. The statement is offered against a party and is   (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship,

18 ATTACKING AND SUPPORTING CREDIBILITY OF DECLARANT6. D then wants to read to the jury from D driver’s deposition. Ruling? RULE 806. ATTACKING AND SUPPORTING CREDIBILITY OF DECLARANT       When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), (E), or (F), 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. The Absent Declarant The Empty Chair

19 7. Jones has fled to Aruba. P offers his deposition re a speeding ticket the day before. Ruling? 801(d) Statements Which Are Not Hearsay. A statement is not hearsay if  (2) Admission Statement by Party-Opponent. The statement is offered against a party and is   (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship,

20 Rule 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES   (b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith except … Such evidence may also be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Rule 403. EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR WASTE OF TIME       Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

21 8. P calls BB who promptly loses his memory8. P calls BB who promptly loses his memory. P wants to impeach his own witness with deposition. Ruling? Rule 607. WHO MAY IMPEACH       The credibility of a witness may be attacked by any party, including the party calling the witness, except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of affirmative damage. The foregoing exception does not apply to statements admitted pursuant to Rules 801(d)(1)(A), 801(d)(1) (B), 801(d)(2), or 803.

22 The Affirmative Damage Rule, Some HistoryIllinois Supreme Court Rule 238(a): The credibility of a witness may be attacked by any party, including the party calling him. (Common law voucher rule abolished). Applied to criminal cases through Ill. S. Ct. Rule 433. Common law retained the requirement that affirmative damage be shown prior to impeaching one’s own witness. This rule requires that the witness’ testimony must affirmatively damage the case of the party that called this witness rather than simply failing to support it, in order to justify impeaching that witness with a prior inconsistent statement. The testimony must hurt the case rather than simply be disappointing. Affirmative damage rule now adopted by IRE 607.

23 What’s Affirmative Damage?Examples: Witness tells police, I saw the shooting and the deft. did it. In court: Witness testifies he didn’t see the shooting. Failure to support: disappointment that will not justify impeachment of the State’s own witness. In court: Witness testifies he saw the shooting and it wasn’t the defendant. Affirmative damage that will allow the State to impeach its own witness.

24 Why the requirement for affirmative damage?A court’s witness, or any witness for that matter cannot be impeached by prior inconsistent statements unless his testimony has damaged, rather than failed to support the position of the impeaching party. The reason for this is simple: No possible reason exists to impeach a witness who has not contradicted any of the impeaching party’s evidence, except to bring inadmissible hearsay to the attention of the jury. Impeachment is supposed to cancel out the witness’ testimony. It is only when the witness’ testimony is more damaging than his complete failure to testify would have been that impeachment is useful. People v. Weaver, 92 Ill. 2d 545 (1982).

25 To Avoid the Wrongful Admission of HearsayTo attempt to impeach your own witness simply because he failed to support your case is an attempt to bring inadmissible hearsay before the jury disguised as impeachment. The risk here is that the jury, even if instructed not to, will ascribe substantive value to this testimony.

26 The Turtle has to move backwards before you can move it forwards.People v. Rolando Cruz, 162 Ill. 2d 314 (1994) Cruz II. Affirmed the requirement of affirmative damage, citing Weaver. Also see, People v, McCarter, 385 Ill. App. 3d 919 (2008). (Combined analysis of and affirmative damage rule.) IRE 607 is not limited to criminal cases, the affirmative damage requirement applies in all cases.

27 What is exempted from the affirmative damage requirement?725 ILCS 5/ – Admissibility of Prior Inconsistent Statements – Now incorporated into IRE 801(d)(1). Inconsistent and subject to cross and either under oath OR re an event the witness has personal knowledge (no 3rd party confessions)and signed, acknowledged under oath or recorded. 801(d)(1) - Substantively admitted inconsistent stmts, (criminal cases only) 801(d)(2) – Statements of a party opponent, 803- Exceptions to Hearsay Rule Affirmative Damage is not required if the statement is otherwise admissible as either non-hearsay or within an exception. The risk of hearsay being snuck in under the guise of impeachment is not present.

28 PRIOR STATEMENTS OF WITNESSES 9. P takes CC to Cancun! Rule 613. PRIOR STATEMENTS OF WITNESSES         (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.

29 10a.My legs hurt so much I can hardly get out of bed!RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)

30 10b. Smith tells Dr. Bloodsoak what happened. Ruling?RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL The following are not excluded by the hearsay rule, even though the declarant is available as a witness: 4) Statements for Purposes of Medical Diagnosis or Treatment. (A) Statements made for purposes of medical treatment, or medical diagnosis in contemplation of treatment, and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment…

31 11a. Accident reconstruction expert asked by P what he relied upon11a. Accident reconstruction expert asked by P what he relied upon. Ruling? Rule 703. BASES OF OPINION TESTIMONY BY EXPERTS       The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Rule 705. DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION       The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

32 11b. P asks his expert to read from a learned treatise he relied upon11b. P asks his expert to read from a learned treatise he relied upon. Ok? Illinois common law rejects a hearsay exception for learned treatises. See IRE 803(18) Reserved. [Learned Treatises] Also see FRE 803(18). Illinois courts are not uniform on the question of whether the contents of a learned treatise relied upon can be disclosed on direct examination. Those that allow it, do so only as non-hearsay basis of opinion with a limiting instruction. Let’s ask Judge Lynn Egan how she handles this!

33 12. D crosses P’s expert with the text of a learned treatise. Ruling?Not offered on cross-examination as substantive evidence but rather for impeachment and thus not hearsay. Opponent could ask for a limiting instruction.

34 Is this an adoptive admission?13. P offers letter from ACME files, absent citizen complained about Jones driving. Ruling? 801(d) Statements Which Are Not Hearsay. A statement is not hearsay if (2) Admission Statement by Party-Opponent. The statement is offered against a party and is (B) a statement of which the party has manifested an adoption or belief in its truth,… Is this an adoptive admission? Is it offered for the truth of the matter asserted or for some other purpose? Is it fair under Rule 403?

35 14. P offers ICC finding of record falsifications. Ruling?803(8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, …  404(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith except... Such evidence may also be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. 403?

36 15. D offers ACME investigative report containing AA statement. Ruling?803(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, …unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness,… Is a record made in anticipation of litigation made in the regular course of business and considered trustworthy? Did AA have a business duty to report to the investigator and do so accurately? Is this hearsay within hearsay? See: Graham, Handbook of Illinois Evidence, Sec , at pp

37 16. P argues that Jones ran the light based on what expert said the witnesses said. Ruling?Rule 703. BASES OF OPINION TESTIMONY BY EXPERTS The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Basis of opinion evidence is not admitted for the truth of the matter asserted. Therefore, this evidence must not be argued as proof of the underlying assertions. In Re Commitment of Butler, 2013 IL App (1st) , Wilson v. Clark, 84 Ill. 2d 186 (1981).

38 17. P testifies he always slows down at an intersection. Ruling?Rule 406. HABIT; ROUTINE PRACTICE       Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

39 18. P’s friend testifies that P was a careful person. Ruling?Rule 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES       (a) Character Evidence Generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion,…  I.P.I Civil No Careful Habits As Proof of Ordinary Care: If you decide there is evidence tending to show that the [decedent] [plaintiff] [defendant] was a person of careful habits, you may infer that he was in the exercise of ordinary care for his own safety [and for the safety of others] at and before the time of the occurrence, unless the inference is overcome by other evidence. In deciding the issue of the exercise of ordinary care by the [decedent] [plaintiff] [defendant] you may consider this inference and any other evidence upon the subject of the [decedent's] [plaintiff's] [defendant's] care. See Powell v. Dean Foods, 2013 IL App (1st) B, J. Palmer, specially concurring, Graham, Handbook of Illinois Evidence, Sec at pp ,DiVito, The Illinois Rules of Evidence, Rule 406 at pp

40 Thanks for Listening THIS STUFF IS HARD YOU COULD TAKE THIS THING TO TRIAL OR GO TO MEDIATION AND SETTLE