EVIDENCE By Judge Thomas Schippers Tschipperslakecountyil gov ILLINOIS

EVIDENCE By Judge Thomas Schippers Tschippers@lakecountyil. gov

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

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

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

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

EVIDENTIARY FOUNDATIONS n Have Foundation Ready q q q IRE Caselaw Questions

Criminal Sexual Abuse n n 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.

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

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

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

TESTIMONIAL EVIDENCE n CONVERSATIONS n n n 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.

NON HEARSAY n Must be Assertions of Fact, so…. q 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. 3 d 547 (4 th Dist. 2009).

What if Declarant Testifies n “The presence or absence in court of the declarant of the out-ofcourt statement is * * * irrelevant to a determination as to whether the out-of-court statement is hearsay. ” People v. Lawler 142 Ill. 2 d 548, 557, 568 N. E. 2 d 895, 899, 154 Ill. Dec. 674, 678 (Ill. , 1991), quoting M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 801. 1, at 564 -65 (5 th ed. 1990).

NON-HEARSAY n Admission by a Party Opponent. IRE 801(d)(2) q Only standard is relevance. People v. Aguilar, 637 N. E. 2 d 1221 (3 d Dist. 1994) q q No declaration against interest required Prosecutor is not Party Opponent People v. Mc. Daniel, 647 N. E. 2 d 266 (1995) n Remember … Doctrine of Completeness § § Prevents misleading characterization of evidence. Lawson v. G. D. Searle, 64 Ill. 2 d 543 (1976). Must “shed light, ” not contradict. People v. Pietryzk, 153 Ill. App. 3 d 428 (1 st Dist. 1987).

…Other Writings or Statements n n 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.

Post Miranda Silence n Show voluntariness of statement q q n What were circumstances? Miranda What if Defendant invokes 5 th? n DON’T IMPEACH!

Post Miranda Silence n 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.

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. (1 st) 092333. What about Pre-arrest silence?

STATEMENTS TO POLICE n n People v. Theis, 2011 IL App. 2 nd 091080 (officer’s allegation during defendant’s interrogation offered to put conversation in context). Compare People v. Munoz, 398 Ill. App. 3 d 455, 487 (1 st 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).

PROVING DEFENDANT’S AGE n Booking Questions People v. Dalton, 434 N. E. 2 d 1127 (1982) n 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. 2 d 454, 465 (1992) (quoting People v. Davis, 95 Ill. 2 d 1, 31 (1983)). See People v. Coleman, 409 Ill. App. 3 d 869 (defendant’s name was Jesse, and certified conviction indicated “Jessie” and court said presumption stood where defendant did not dispute this at trial). n Abstract: n 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. 2 d 1171 (2 d Dist. 2007). Note: Can also be used to prove age

NON HEARSAY n Not offered for the truth q State of mind of listener. n Example: Why cop went to scene. q n See People v. Warlick, 707 N. E. 2 nd 214 (1 ST 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 q People v. Jura, 817 N. E. 2 d 968 (1 st Dist. 2004)(reversible error where R/O testified to specific nature of crime and description of defendant as relayed to him by dispatch).

NON HEARSAY n Not offered for the truth q 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. 2 d 232, 245 -246 (2 nd 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).

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

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

Then Existing State of Mind n 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. 2 d 758 (D. C. Cir. 1973). 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. 3 d 896 7 7

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

PRIOR INCONSISTENT STMT n IRE 801(d)(1) (A) Declarant testifies and subject to cross and statement is inconsistent with declarant’s testimony at trial, and (1) Admits to making the statement under oath at trial, or (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

Who May Impeach? n n IRE 607 Party calling the witness may impeach only by showing affirmative damage. q People v. Weaver, 92 Ill. 2 d 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”).

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

JUVENILE ADJUDICATIONS n IRE 609(d) Not Allowed for Defendant, unless…. n Defendant opens the door. People v. Villa, 2011 IL 119777; see also People v. Harris, 231 Ill. 2 d 582 (2008)(impeachment allowed after defendant testified that he is a law abiding citizen and doesn’t commit crimes). n Witnesses? q IRE 609(d); People v. Newborn, 883 N. E. 2 d 603, 609 (3 d Dist. 2008).

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

SPECIFIC INSTANCES OF CONDUCT n n IRE 405(b) Specific instances of conduct not allowed unless… q q (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.

OPINION: IRE 701 -705 n Lay v. expert Expert: Beyond ken of average juror q Lay Opinion: q n People v. Novak, 642 N. E. 2 d 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. ”

ARE DUI FIELDS BASED ON EXPERT OR LAY OPINION? n n People v. Bostelman, 756 N. E. 2 d 953 (2 nd 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. Mc. Kown, 236 Ill. 2 d 278 (Ill. 2010).

MEDICAL DIAGNOSIS IRE 803(4) For purposes of medical treatment n n People v. Winfield 513 N. E. 2 d 1032 (1 st Dist. 1987)(statement to nurse). Perpetrator generally inadmissible, unless … q q q Enumerated sex crimes People v. Falaster, 670 N. E. 2 d 624 (1996)(statement that perpetrator was child’s father important for child’s psychological treatment). But See: People v. Oehrke, 860 N. E. 2 d 416 (1 st 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).

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

PHYSICAL EVIDENCE n IRE 901 Authentication: It is what the proponent says it is. “This is the gun taken from the defendant. ” q Unique characteristics: n n Witness be able to identify Item must have unique characteristics such that witness can readily identify it. i. e. serial number

PHYSICAL EVIDENCE n Fungible Items (i. e. . cocaine) q Chain of custody authenticates evidence n 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. 2 d 455, 466 -67(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. 2 d 999 (2 d Dist. 1984)

WRITINGS MADE BY DEFENDANT n 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. 2 d 341 (3 d Dist. 2005).

Texts, Emails etc… n n TEXT MESSAGES: People v. Chromik , 408 Ill. pp. 3 d 1028 (3 d Dist. 2011)(victim testimony coupled with corroborating telephone records sufficient foundation for authenticating texts) Email: The proponent of the evidence must offer a foundation from which the jury could reasonably find that the evidence is what the proponent says it is. . ' The Court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so. Lorraine v. Markel American Ins. Co. , 241 F. R. D. 534, 542 (D. Md. , 2007); see also United States v. Siddiqui, 235 F. 3 d 1318, 1322 -23 (11 th Cir. 2000) (allowing the authentication of an e-mail entirely by circumstantial evidence, including the presence of the defendant's work e-mail address and distinctive characteristics, including content of which the defendant was familiar with, use of the defendant's nickname, and testimony by witnesses that the defendant spoke to them about the subjects contained in the e-mail).

BUSINESS RECORDS n n 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…

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

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. .

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

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

SILENT WITNESS VIDEO (1) Reliability of the device; (2) Competency of the operator; (3) Properation 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. 3 d 74 (2 nd Dist. 2010); People v. Vaden, 784 N. E. 2 d 410, 414 (3 d Dist. 2003)

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

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

LIMITED ADMISSIBILITY n IRE 105: Evidence admitted for a limited purpose can only be used for the purpose for which it was q q People v. Cosmano , No. 2011 IL App (1 st) 101196 People v. Meredith, 84 Ill. App. 3 d 1065 (1980).

DO NOT OVERARGUE People v. Johnson, 218 Ill. 2 d 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. 2011 IL App (1 st) 101196. People v. Meredith, 84 Ill. App. 3 d 1065 (1980).

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