1. By Judge Thomas Schippers Tschippers@lakecountyil.gov
EVIDENCE
By Judge Thomas Schippers

2. ILLINOIS RULES OF EVIDENCE
Tdrlawfirm.com under “Firm News” and “Illinois Rules of Evidence: Color-coded guide.”
Codifies common law
Some substantive changes

3. HOW TO PREPARE ID ELEMENTS: Instructions How witness fits in?
What Evidence Comes Through this Witness?
Testimonial Evidence
Physical Evidence

4. Criminal Sexual Abuse
First Proposition: That the defendant committed an act of sexual conduct with the Victim; and
Second Proposition: That the defendant 17 years of age or older; and
Third Proposition: That the Victim was at least 9 years of age but under 16 years of age when the act was committed[; and
Fourth Proposition: That the defendant did not reasonably believe the Victim to be 16 years of age or older.

5. HOW TO PREPARE Talk to Your Witness
Go over any written statements.
Go over police reports as to statements made to police by witness.
Amend charging document if necessary

6. ANTICIPATE OBJECTIONS
During your case – and defense case
Relevance
Probative v. prejudicial
What is the Purpose for which the evidence is offered?
Competency
“He said/she said”
Opinion evidence

7. EVIDENTIARY FOUNDATIONS
Have Foundation Ready
IRE
Caselaw
Questions

8. Excited Utterance
IRE 803(2)
Occurrence sufficiently startling to produce a spontaneous and unreflecting statement;
absence of time to fabricate; and
the statement related to the circumstances of the occurrence.
People v. Simon  953 N.E.2d 1 (1st Dist. 2011)(absence of self-interest is a factor to be considered in determining whether the spontaneous declaration exception is applicable).

9. Excited Utterance
Note: Time of Statement not Definitive
18 hours later admissible (People v. Chatman, 441 N.E.2d 1292, 1298 (1st Dist. 1982))
30 seconds later inadmissible (Peterson v. Cochran, 31 N.E.2d 825, 830 (1st Dist.1941))
The more stressful the event, and the younger the declarant, the longer the time for making an excited utterance.

10. MEDICAL DIAGNOSIS IRE 803(4) For purposes of medical treatment
People v. Winfield 513 N.E. 2d 1032 (1st Dist. 1987)(statement to nurse).
Perpetrator generally inadmissible, unless …
Enumerated sex crimes
People v. Falaster, 670 N.E.2d 624 (1996)(statement that perpetrator was child’s father important for child’s psychological treatment).
But See: People v. Oehrke, 860 N.E.2d 416 (1st Dist. 2006)(error to admit statements by 91 year old identifying caregiver as abuser even after doctor and nurse said information was important in treatment because of concern of sending her back to abusive environment).

11. MOTIONS IN LIMINE Can be used to keep out evidence AND
Can be used to get prior approval to admit questionable or potentially prejudicial evidence
Note: Judges appreciate motions in limine

12. TESTIMONIAL EVIDENCE CONVERSATIONS
Who was present?
When?
Where?
What did you say to him and he say to you?
HEARSAY. IRE 801(c) A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the matter asserted.

13. NON HEARSAY Must be Assertions of Fact, so….
Greetings, pleasantries, expressions of gratitude, courtesies, questions, offers, instructions, warnings, exclamations, expressions of joy, annoyances, or other emotions are not intended expressions of fact or opinion, are not assertions, and thus are not hearsay. People v. Willie Sorrels, 389 Ill.App.3d 547 (4th Dist. 2009).

14. What if Declarant Testifies
Adoption of the State's rationale would essentially obliterate a good portion of the hearsay rule. As has been noted, “[t]he presence or absence in court of the declarant of the out-of-court statement is * * * irrelevant to a determination as to whether the out-of-court statement is hearsay.” People v. Lawler  142 Ill.2d 548, 557, 568 N.E.2d 895, 899, 154 Ill.Dec. 674, 678 (Ill.,1991), quoting M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 801.1, at (5th ed. 1990).

15. NON-HEARSAY Admission by a Party Opponent. IRE801(d)(2)
Only standard is relevance.
People v. Aguilar, 637 N.E.2d 1221 (3d Dist. 1994)
No declaration against interest required
Prosecutor is not Party Opponent
People v. McDaniel, 647 N.E.2d 266 (1995)
Remember … Doctrine of Completeness
Prevents misleading characterization of evidence.
Lawson v. G.D. Searle, 64 Ill.2d 543 (1976).
Must “shed light,” not contradict.
People v. Pietryzk, 153 Ill. App. 3d 428 (1st Dist. 1987).

16. …Other Writings or Statements
IRE 106: “When a writing or recorded statement is introduced by a party, an adverse party may require the introduction of … any other writing or recording which ought to in fairness be considered….”
Committee Comment: Allows statements made under separate circumstances.

17. DEFENDANT’S STATEMENT
Show voluntariness of statement
What were circumstances?
Miranda
What if Defendant invokes 5th?
DON’T IMPEACH!
Doyle v. Ohio, 426 U.S. 610 (1976), the United States Supreme Court held that the prosecution generally cannot use a defendant's post- Miranda warning silence for impeachment purposes without violating due process

18. WRITINGS MADE BY DEFENDANT
State need only prove a rational basis upon which a trier of fact may conclude (beyond a reasonable doubt) the writing belonged to the defendant. Evidence need not rule out all possibilities inconsistent with authenticity or conclusively prove that evidence is what it purports to be. Ultimate issue of authorship is left to the trier of fact. See Generally, People v. Downin, 828 N.E.2d 341 (3d Dist. 2005).

19. WRITINGS MADE BY DEFENDANT
TEXT MESSAGES: People v. Chromik , No  ( )(victim testimony coupled with corroborating telephone records sufficient foundation for authenticating texts) .

20. STATEMENTS TO POLICE
People v. Theis 2011 IL App. (2d) (officer’s allegation during defendant’s interrogation offered to put conversation in context).
Compare People v. Munoz, 398 Ill.App.3d 455, 487 (1st Dist. 2010)(officer’s statement to defendant that his story made no sense admissible to show course of investigation, but subsequent statement to the jury that officer never did believe defendant was reversible error).

21. Post Miranda Silence Doyle v. Ohio, 426 U.S. 610, 618 (1976).
It would be fundamentally unfair – and a due process violation– to allow cross exam of a defendant for asserting his Constitutional right to remain silent after being read Miranda.

22. POST ARREST SILENCE
Post Arrest/Pre-Miranda?

23. Post Arrest Silence
Since accused is within his rights to refuse to talk after his arrest, such silence has no tendency to prove or disprove the charge against him. People v. Quinonez, 2011 IL App. (1st)
What about Pre-arrest silence?

24. PROVING DEFENDANT’S AGE
Booking Questions
People v. Dalton, 434 N.E.2d 1127 (1982)
Birth Certificate
See 410 ILCS 535/25(6)
The supreme court has “adopted a general rule that ‘identity of name gives rise to a rebuttable presumption of identity of person.’ ” People v. Smith, 148 Ill. 2d 454, 465 (1992) (quoting People v. Davis, 95 Ill. 2d 1, 31 (1983)). See   People v. Coleman, 409 Ill.App.3d 869 (defendant’s name was Jesse, and certified conviction indicated “Jessie” and court said presumption stood where defendant did not dispute this at trial).
Abstract:
625 ILCS 5/6-303 allows certified copy to be admitted. Prosecutor must show the abstract is in fact the defendant’s. That is, it must be authenticated. See People v. Meadows, 861 N.E.2d 1171 (2d Dist. 2007).
Note: Can also be used to prove age

25. NON HEARSAY Not offered for the truth State of mind of listener.
Example: Why cop went to scene.
See People v. Warlick, 707 N.E.2nd 214 (1ST Dist. 1998)(no error when statement from dispatch was general in nature, not exploited or argued by state).
BUT: If words go the “very essence of the dispute,” not admissible
People v. Jura, 817 N.E.2d 968 (1st Dist. 2004)(reversible error where R/O testified to specific nature of crime and description of defendant as relayed to him by dispatch).

26. NON HEARSAY Not offered for the truth Course of Conduct
Best Practice: Only elicit fact of conversation with dispatch. Let jury infer the rest. If you believe you must get into the substance of the statement, be prepared to argue why. See e.g. People v. Robinson  909 N.E.2d 232, (2nd Dist. 2009)(Officer’s testimony that he “had reason to believe that [defendant] was transporting drugs back from Rockford to Freeport” admissible to fully explain why the police were following the car, why they told defendant he was free to leave but the car would have to stay, why they asked to search the vehicle, and why they decided to get a search warrant and have the car towed).

27. NON HEARSAY Not offered for the truth State of Mind of listener
Victim: “I am going to kill you.”
Relevant to state of mind of defendant in self defense.

28. Compare Then Existing State of Mind
IRE 803(3)
Declarant's then existing state of mind, emotion, sensation or physical condition (intent, plan, motive, design, mental feeling, pain, bodily health) admissible….

29. Then Existing State of Mind
EXAMPLES
Victim’s statement that she was afraid of guns and of defendant allowed to rebut defense theory that she died accidently by playing with a gun while visiting the defendant. U.S. v. Brown, 490 F.2d (D.C. Cir. 1979).
Witness testifies decedent said he was going to buy a car from the defendant admitted to prove that victim went to see defendant. People v. Jones, 84 Ill.App.3d 896

30. IMPEACHMENT Not Substantive Evidence – Only Credibility
Unless Inconsistent Statement Admissible under other exception.

31. Who May Impeach?
IRE 607
Party calling the witness may impeach only by showing affirmative damage.
People v. Weaver, 92 Ill.2d 545 (1982)(“It is only when the witness' testimony is more damaging than his complete failure to testify would have been that impeachment is useful”).

32. PRIOR INCONSISTENT STMT
IRE 801(d)(1)
(A) Declarant testifies and subject to cross and statement is inconsistent with declarant’s testimony at trial, and
(1) Under oath at trial
(2) narrates, describes or explains event of which declarant had personal knowledge, and
(a) proved to be written or signed by declarant
(b) declarant acknowledge under oath making the statement
c) statement proved to have been accurately recorded

33. IMPEACHMENT BY PRIOR CONVICTION
IRE 609
10 YEARS
Felony or Dishonesty
Admitted … unless the probative value … is substantially outweighed by unfair prejudice.
People v. Montgomery, 47 Ill. 2d 510 (1971).
Court must undertake the above balancing test.
Note: Judge must rule prior to defendant’s testimony.

34. CHARACTER EVIDENCE
IRE 404(a) Evidence of pertinent character trait of defendant or victim
Note: That Def. is generally law abiding or has never been arrested not allowed. People v. Flax, 498 N.E.2d 667, 672 (1st Dist. 1986).
i.e. Reputation for opinion for honesty in a theft case.
IRE 405(a) Reputation or Opinion
IRE 608 A witness may be impeached by reputation or opinion for untruthfulness.

35. SPECIFIC INSTANCES OF CONDUCT
IRE 405(b)
Specific instances of conduct not allowed unless…
(1) character is an essential element of the charge or defense, or
(2) homicide or battery, and the accused raises self-defense and there is conflicting evidence of whether the victim was the aggressor.

36. OPINION: IRE 701-705 Lay v. expert Expert: Beyond ken of average juror
Lay Opinion:
People v. Novak, 642 N.E.2d 762
“Lay witness opinion testimony is admissible where the fact could not otherwise be adequately presented or described to the fact finder in such a way as to enable the fact finder to form an opinion or reach an intelligent conclusion. Lay witnesses may relate their opinions or conclusions on what they observed because it is sometimes difficult to describe a persons mental or physical condition, character, or reputation, or the emotions manifest by his or her acts; or things that occur and can be observed, including speed, appearance, odor, flavor, and temperature.”

37. ARE DUI FIELDS BASED ON EXPERT OR LAY OPINION?
People v. Bostelman, 756 N.E.2d 953 (2nd Dist. 2001)(only foundation for fields and opinion regarding pass/fail – other than HGN -- was the experience of the officer and formal training in the administration of those tests).
HGN
People v. McKown, 236 Ill.2d 278 (Ill. 2010).
Or Pass/Fail testimony on fields.

38. PHYSICAL EVIDENCE Prepare Outline with Exhibits Foundations:
Prep Witness with Exhibits
Have Exhibits Ready
Foundations:
Witness ID exhibit
Authenticate: it is what you say
Bases of knowledge
Same condition

39. BUSINESS RECORDS IRE 803(6)
...1) made at or near the time by, or from information transmitted by, 2) a person with knowledge, 3) if kept in the course of regularly conducted business activity, and if 4) it was the regular practice of that business activity to make the … record …unless…
lack of trustworthiness…

40. Business Records
Custodian of Records not required. People v. Henderson, 336 Ill.App.3d 915 (3d Dist. 2003)(doctor lays foundation).
Witness need not have prepared the record. See e.g. People v. Singer, 256 Ill.App.3d 258 (1st Dist. 1993).
People v. Olsen  388 Ill.App.3d 704, 712 (2nd Dist. 2009)(records clerk on blood draw).

41. Self Authentication IRE 902(11)
Certified Records of Regularly Conducted Activities
Business Records
I Hereby, under penalties of perjury, on oath Certify that:
I am the keeper of records at XYZ Corporation
The Attached Records were kept in the ordinary course of business …
In Witness Whereof, I Swear that under penalty of death and dismemberment, the foregoing is True and Correct.. 

42. NOTICE IRE 902(11) Commentary Must provide written notice…
Must allow adverse party to inspect record and declaration
Sufficiently in advance … to allow … fair opportunity to challenge …

43. PHYSICAL EVIDENCE Unique evidence (i.e.. gun) Authentication:
Witness be able to identify
Item must have unique characteristics such that witness can readily identify it.
i.e. serial number

44. PHYSICAL EVIDENCE Fungible Items (i.e.. cocaine)
Chain of custody authenticates evidence
Must prove chain of custody over the substance that is sufficiently complete to make it improbable that the evidence has been tampered with or accidentally substituted. “The State must show that the police took reasonable protective measures…” Burden then shifts to the defendant to show actual tampering. People v. Woods, 214 Ill.2d 455, (2005). It is not required that every person in the chain of custody testify. Key testimony is that evidence is in same condition. People v. Irpino, 461 N.E.2d 999 (2d Dist. 1984)

45. PICTURES/DIAGRAMS FOUNDATION “Does this accurately show….”
“Will this assist you in explaining to the jury….”
Use Exhibit with the Witness
Don’t forget the jury!!!!

46. SILENT WITNESS VIDEO (1) Reliability of the device;
(2) Competency of the operator;
(3) Proper operation of the device;
(4) Proper preservation of the tape and chain;
(5) Identification of the persons, locale, or objects depicted;
(6) Explanation of any duplication process.
 People v. Taylor, 398 Ill. App. 3d 74 (2nd Dist. 2010); People v.Vaden, 784 N.E.2d 410, 414 (3d Dist. 2003)

47. Reliability of the device/ Proper Operation
… the fact that the tape exists at all is evidence that the tape recorder was functional and that the operator knew how to operate it…

48. SILENT WITNESS VIDEO
IRE 104(a):
Otherwise
inadmissible….

49. Duplication Process Original
IRE 1001(3): for any data stored in a computer, or similar device, any printout or other output readable by sight, shown to reflect the data accurately is an original.

50. Process or System
IRE 901(9)
MACHINES
…showing that the process or system produces an accurate result.”

51. MACHINES Made by a person… Caller ID is Not a person
Must show machine is working properly and reliable.
People v. Caffey, 792 N.E.2d 1163 (2001)(witness testimony that same number appeared on caller ID several times, with same voice on the other end sufficient to prove reliability).

52. DUI/ BREATHALYZER People v. Orth, 124 Ill.2d 326
Test performed in accordance with uniform standards adopted by State Police;
Operator properly certified;
Machine used was model approved by Dept. Health/State police, and tested regularly and working properly;
20 minute observation period;
Printout ID’d as that of defendant.

53. PBT
Must be:
1. Must be an approved device. 625 ILCS 5/ ; 20 Ill. Admin. Code (sets forth approved models).
2. Must be performed according to operating procedure of the instrument Ill. Admin. Code
3. Checked for accuracy by a BAT or person specially trained to perform PBT accuracy checks. 20 Ill. Adm. Code
3. Must be checked for accuracy at least once every 93/days to a plus or minus Ill. Adm. Code
Note: There is no Illinois case that specifically sets forth the required foundation. But petitioner must make out a prima facie case that she was not intoxicated to require the state to lay the proper foundation for the PBT. People v. Rozella, 802 N.E.2d at 380 (state crossed officer on PBT results, and court said no basis to challenge foundation, since burden did not shift).

54. DO NOT OVERARGUE
People v. Johnson, 218 Ill.2d 125 (2005)(argument by prosecutor that defendant was given a chance to prove his innocence by blowing into breathalyzer was reversible error).
People v. Cosmano , No IL App (1st)
People v. Meredith, 84 Ill. App. 3d 1065 (1980).
   

55. JUVENILE ADJUDICATIONS
IRE 609(d) Not Allowed for Defendant, unless….
Defendant opens the door. People v. Villa, IL ; see also People v. Harris, 231 Ill.2d 582 (2008)(impeachment allowed after defendant testified that he is a law abiding citizen and doesn’t commit crimes).
Witnesses?
IRE 609(d); People v. Newborn, 883 N.E.2d 603, 609 (3d Dist. 2008).

56. PTR HEARINGS
IRE 1101(b)
Rules Inapplicable to revoking probation, conditional discharge or supervision.
What about hearsay?
People v. Renner, 321 Ill.App.3d 1022, 1026 (hearsay not competent at PTR hearing).
But see U.S. v. Pratt, 52 F.3d 671, 674 (7th Cir. 1995)(citing similar provision in FRE, allowing hearsay in probation revocation proceeding if otherwise reliable).