CHAPTER 103. Rulings on Evidence

Transcription

1 0011 VERSACOMP (4.2 ) COMPOSE2 (4.43) 04/27/05 (17:08) J:\VRS\DAT\04570\ARTI.GML --- r4570.sty --- POST 148 CHAPTER 103 Rulings on Evidence Summary of Illinois Law Covered in Chapter: Principle # 1: If an evidentiary ruling is one admitting evidence, the opponent of the admitted evidence must make a timely objection to the ruling to preserve the question of the admissibility of the evidence for appeal. Holder v. Caselton, 275 Ill. App. 3d 950, 657 N.E.2d 680 (1995). In doing so, the opponent must specifically state the grounds for the objection. People v. Andrews, 146 Ill. 2d 413, 588 N.E.2d 1126 (1992). If an evidentiary ruling is one excluding evidence, the proponent of the excluded evidence must make an offer of proof to preserve the question of the exclusion of the evidence for appeal. People v. Land, 241 Ill. App. 3d 1066, 1086, 609 N.E.2d 1010 (1993). Principle # 2: In civil cases, any error of law that admits or excludes evidence affecting the judgment or order appealed from may be brought up for review. Il. S. Ct. Rule 366. In criminal cases, any erroneous ruling that admits or excludes evidence that does not affect the substantial rights of the party alleging error will be disregarded. See People v. Keene, 169 Ill. 2d 1, 18 19, 660 N.E.2d 901 (1995). In civil and criminal cases, the filing of a posttrial motion is necessary to preserve evidentiary issues for appellate review. See People v. Keene, 169 Ill. 2d 1, 660 N.E.2d 901 (1995). Principle # 3: In jury trials, proceedings should be conducted, to the extent practicable, so as to prevent inadmissible evidence and prejudicial conduct from being suggested to the jury by any means. See People v. DeJesus, 163 Ill. App. 3d 530, 533, 516 N.E.2d 801 (1987). Principle # 4: In a criminal case, a reviewing court may consider a trial error not properly preserved when (1) the evidence in a criminal case is closely balanced or (2) where the error is so fundamental and of such magnitude that the accused was denied the right to a fair trial. See People v. Keene, 169 Ill. 2d 1, 660 N.E.2d 901 (1995). 11

2 0012 VERSACOMP (4.2 ) COMPOSE2 (4.43) 04/27/05 (17:08) J:\VRS\DAT\04570\ARTI.GML --- r4570.sty --- POST 155 ILLINOIS EVIDENCE COURTROOM MANUAL 12 Comparison with Fed. R. Evid. 103: Generally consistent, though Illinois contains several features with respect to appeals and the standard of review on appeal not present under the FRE. COMMENTARY Rulings on Evidence In General These four principles cover the general procedures pertaining to errors on evidentiary objections and motions. They address the issue of identifying evidentiary rulings that are subject to appellate review and provide, in part, substantive standards concerning the ambit of appellate review Objections to the Admission of Evidence The first principle identifies two situations in which the record of the trial proceedings must clearly reflect the alleged error if an appellate court is to review the propriety of the evidentiary ruling. The first situation occurs when error is predicated upon the admission of evidence. See Illinois State Toll Highway Authority v. Heritage Standard Bank and Trust Co., 163 Ill. 2d 498, 645 N.E.2d 896 (1994). To preserve the issue for appeal, the party opposing the admission of the evidence must make an objection to the ruling in a timely fashion, i.e., as soon as practicable after the grounds for the objection are made manifest. Holder v. Caselton, 275 Ill. App. 3d 950, 657 N.E.2d 680 (1995); Hunter v. Chicago & North Western Transportation Co., 200 Ill. App. 3d 458, 472, 558 N.E.2d 216 (1990). A sufficient objection may be in the form of a motion, exception, or request, and no special language is required in making the objection except to the extent that the objection is sufficiently specific to make the record clear on appeal. Carlson v. City Const. Co., 239 Ill. App. 3d 211, 606 N.E.2d 400 (1992); People v. El, 83 Ill. App. 3d 31, 403 N.E.2d 547 (1980). In unusual cases, a general objection is sufficient where the grounds are selfevident and incurable. Taylor v. Checker Cab Co., 34 Ill. App. 3d 413, 339 N.E.2d 769 (1975). In making an objection, the opponent of the admitted evidence must specifically state the grounds for the objection. A general objection will not be sufficient to preserve the issue for appeal if a specific objection is required. Illinois courts have dispensed with the need for a specific objection when it is clear manifest that the offered proof has no probative value whatever. Bell v. City of Joliet, 83 Ill. App. 3d 103, 403 N.E.2d 740 (1980). In such a case, a general objection raises only the question of relevancy. Johnson v. Bennett, 395 Ill. 389, 69 N.E.2d 899 (1946). Similarly, identical objections for distinct items of evidence must be stated separately. Furthermore, an objection to the admission of an item of evidence in one phase of a trial will not operate as an adequate objection for the admission of that item of evidence in another phase of the trial. Similarly, an objection at trial and a written objection on a posttrial motion are required to properly preserve errors in the admission or exclusion of evidence for purposes of appeal. People v. Keene, 169 Ill. 2d 1, 660 N.E.2d 901 (1995); People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988); see 725 ILCS 5/ The necessity of filing a posttrial motion is discussed in greater detail below.

3 0013 VERSACOMP (4.2 ) COMPOSE2 (4.43) 04/27/05 (17:08) J:\VRS\DAT\04570\ARTI.GML --- r4570.sty --- POST RULINGS ON EVIDENCE Practice Point Once having objected to the admission of a particular item of evidence, and having been overruled, it may appear unnecessary to make an identical objection when the same evidence is offered later at trial. The judge will make the same ruling, so why object again? Because failure to object to the second offer waives the objection to the first. Object every time unless the judge will grant a continuing objection. Even if the judge agrees (he or she may not), there must be nothing ambiguous about the continuing objection and its application or the point may be waived Proffers When Evidence is Excluded The second situation in which the record of the trial proceedings must clearly reflect the alleged error is when a ruling results in the exclusion of evidence. The party wishing to introduce the evidence must make a proffer of the evidence (alternatively called an offer of proof ) to ensure that the reviewing court is presented with a complete record on appeal. People v. Land, 241 Ill. App. 3d 1066, 1086, 609 N.E.2d 1010 (1993). A proffer is simply a statement on the record, usually outside the hearing of the jury, which summarizes the import of the evidence that would have been introduced had it not been excluded. No special form for a proffer is required, though counsel should note the particularity requirement in the substance of the proffered evidence in Illinois courts. See Holder v. Caselton, 275 Ill. App. 3d 950, 657 N.E.2d 680 (1995). Practice Point A proffer may take several forms: (1) the witness may provide the proferred testimony on the record outside the hearing of the jury; (2) counsel may summarize the testimony on the record, also outside the hearing of the jury; (3) or counsel may provide a written statement of the proferred testimony and ask that the statement be included in the record. This final form may be advantageous for counsel who expects to lose on a motion to exclude potential testimony or evidence and who can summarize the testimony in a more concise or articulate fashion than the potential witness. A cautionary note should be added for counsel choosing to summarize proferred testimony. Although the proffering party can generally choose to proffer the testimony though a mere summary, all parties should consider the impact that a mere summary will have on appeal. A court of appeals may find the exclusion harmless if the summary does not effectively establish that the testimony, if allowed, would have been admissible. On the other hand, the ability to summarize

4 0014 VERSACOMP (4.2 ) COMPOSE2 (4.43) 04/27/05 (17:08) J:\VRS\DAT\04570\ARTI.GML --- r4570.sty --- POST 175 ILLINOIS EVIDENCE COURTROOM MANUAL 14 may hide the weakness in the witness s actual recollection. So, for example, a successful objector may wish to insist upon a question and answer of the actual witness if there is some question about the ability of the witness to actually give the testimony Erroneous Rulings In General An appellate court may reverse a judgment based upon an erroneous evidentiary ruling only if four requirements are satisfied. First, as noted, the party must ensure that the issue is preserved for appeal, i.e., than a specific objection to the ruling or offer of proof appears in the record. People v. Andrews, 146 Ill. 2d 413, 588 N.E.2d 1126 (1992). Second, the filing of a posttrial motion is necessary to preserve evidentiary issues for appellate review. It is clear that this requirement is statutory, see 725 ILCS 5/116-1, and constitutes a different requirement the additional, initial need for a timely trial objection. People v. Keene, 169 Ill. 2d 1, 660 N.E.2d 901 (1995). Practice Point Although 725 ILCS 5/116-1, on its face, requires that evidentiary objections be raised only in posttrial motions for new trials, prudent practice dictates that any objections to evidentiary rulings, whether in admitting or excluding evidence, be noted in a posttrial motion to avoid any confusion on the issue on appeal. The party must, of course, convince the appellate court that the trial court has actually erred in its ruling. A complete discussion of the appropriate standard of appellate review on evidentiary rulings is beyond the scope of this manual, though the framework for analyzing alleged errors admitting or excluding evidence is discussed below. There must also be a demonstration that harm has accrued to the party seeking appellate review of the issue. See Il. S. Ct. Rule 366; S. Ct. Rule 615. Illinois courts have generally applied different standards in making this determination, depending upon whether the case was civil or criminal in nature. It does not appear that Illinois courts differentiate between bench trials and jury trials in this regard Requisite Demonstration of Harm Civil Cases In civil cases, the general rule is that an appellate court may not reverse an erroneous evidentiary ruling unless it affects the final determination of a case. This formulation finds support in Illinois Supreme Court Rule 366. This Rule, which governs appeals in civil suits, states that [a]ny error of law affecting the judgment or order appealed from may be brought up for review. Il. S. Ct. Rule 366. Illinois courts have treated this standard as somewhat less strict than the standard used in criminal cases.

5 0015 VERSACOMP (4.2 ) COMPOSE2 (4.43) 04/27/05 (17:08) J:\VRS\DAT\04570\ARTI.GML --- r4570.sty --- POST RULINGS ON EVIDENCE Requisite Demonstration of Harm Criminal Cases In criminal cases, the standard for determining reversible error is more stringent than the standard in civil cases. Illinois Supreme Court Rule 615(a) provides that, [a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Il. S. Ct. Rule 615(a). Accordingly, the Rule uses the general substantial rights formulation of the standard, which has generally been interpreted as precluding reversal for mere procedural errors. See People v. Keene, 169 Ill. 2d 1, 18 19, 660 N.E.2d 901 (1995). Elsewhere, the Illinois Supreme Court has intimated that an evidentiary error affecting substantial rights are those errors which constitute a denial of constitutional rights or present a question which will justify a post-conviction hearing. People v. Cox, 34 Ill. 2d 66, 68, 213 N.E.2d 524 (1966). The question of the standard according to which an appellate court will reverse a criminal conviction is part of a framework developed by the Illinois Supreme Court in People v. Keene, 169 Ill. 2d 1, 16, 660 N.E.2d 901 (1995). Under the framework, evidentiary errors may be reviewed on appeal in three distinct categories: errors that affect substantial rights ; challenges to the sufficiency of the evidence; and plain errors. See People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988). Errors in the first category those that affect the defendant s substantial rights must be alleged with specificity in a posttrial motion. See 725 ILCS 5/ As discussed above, evidentiary errors affecting substantial rights are those errors which constitute a denial of constitutional rights or present a question which will justify a post-conviction hearing. People v. Cox, 34 Ill. 2d 66, 68, 213 N.E.2d 524 (1966); see People v. Keene, 169 Ill. 2d 1, 16, 660 N.E.2d 901 (1995). A discussion of those errors in the second category challenges to sufficiency of the evidence is beyond the scope of the manual. A discussion of the plain error doctrine is set forth in greater detail in 103.9, below. Illinois case law has been less than clear about exactly what constitutes reversible error in a given case. One source of the confusion may be that the concept of substantial rights has a crucial role with respect to both reversible errors to which timely objections are made at trial and alleged in a posttrial motion and plain errors. However, the concepts cannot be interchangeable, or the dual requirements of a trial objection and posttrial motion would be rendered meaningless because they would play no role in the court of appeals analysis. At a minimum, appellate court review of trial errors to which timely objections are made at trial and which are alleged in posttrial motions should be subject to a relatively more searching inquiry than plain errors Harmless Error Closely related to the concept of reversible error is the notion of harmless error. When an error admitting or excluding evidence is regarded as harmless, a decision will not be reversed. Several considerations may be relevant in determining whether an error is harmless. If an error was not prejudicial to the defendant or likely to have had only a minimal influence on the jury s decision, then the error may be characterized as harmless. Additionally, evidence that is erroneously admitted may be harmless if it is merely duplicative of properly admitted evidence. Finally, if uncontradicted evidence properly admitted so clearly overwhelms the improperly admitted evidence that the jury could not

6 0016 VERSACOMP (4.2 ) COMPOSE2 (4.43) 04/27/05 (17:08) J:\VRS\DAT\04570\ARTI.GML --- r4570.sty --- POST 195 ILLINOIS EVIDENCE COURTROOM MANUAL 16 have come to any verdict other than a guilty one based on the properly admitted evidence, the error may be deemed harmless. Practice Point A critical part of the determination whether an error will be deemed harmless may be the existence of adequate limiting instruction to the jury. Where an instruction was given, it is far less likely that an appellate court will find prejudice to a criminal defendant of the kind against which the instruction cautioned Rulings on Evidence Outside the Hearing of the Jury The third principle provides that, whenever practicable, discussions concerning rulings on evidence should be conducted outside the hearing of the jury. Although there is no generally applicable rule governing this, the idea of rulings outside the hearing of the jury has support in Illinois case law. See People v. DeJesus, 163 Ill. App. 3d 530, 533, 516 N.E.2d 801 (1987); Greig v. Griffel, 49 Ill. App. 3d 829, 842, 364 N.E.2d 660 (1977). Quite obviously, the purposes of the other principles would be wholly defeated if, for example, the jury were permitted to overhear a proffer of excluded evidence or a lengthy discourse on the highly prejudicial nature of evidence admitted over an objection. Such arguments or discussions should be held at a sidebar, in the judge s chambers, or while the jury is not present in the courtroom. Additionally, a motion in limine decided before the trial commences may be used to resolve important evidentiary questions outside of the hearing of the jury Plain Error Doctrine In the federal system and some states, including Illinois, the plain error doctrine constitutes an exception to the rule requiring a specific timely objection to a trial court ruling admitting or excluding evidence. In Illinois, it also represents an exception to the statutory requirement that the defendant allege the error with specificity in a posttrial motion. See 725 ILCS 5/ Pursuant to this exception, sometimes referred to as the fundamental error doctrine, an appellate court may reverse a decision predicated in part or in whole on an erroneous evidentiary ruling if that ruling can be fairly characterized as plain and fundamental, even when the ruling is one to which an objection has not been preserved at trial. As discussed above, the plain error doctrine operates in Illinois as part of a framework for analyzing whether an appellate court will reverse a criminal conviction. See People v. Keene, 169 Ill. 2d 1, 16, 660 N.E.2d 901 (1995). Under the framework, evidentiary errors may be reviewed on appeal in three distinct categories: errors that affect substantial rights, challenges to the sufficiency of the evidence, and plain errors. See People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988).

7 0017 VERSACOMP (4.2 ) COMPOSE2 (4.43) 04/27/05 (17:08) J:\VRS\DAT\04570\ARTI.GML --- r4570.sty --- POST RULINGS ON EVIDENCE As the court in People v. Keene, 169 Ill. 2d 1, 660 N.E.2d 901 (1995), explained, one source of the plain error doctrine can be found in Illinois Supreme Court Rule 615(a). That rule states that notice may be taken of [a]ny error, defect, irregularity, or variance which affects substantial rights though such was not brought to the attention of the trial court. See also People v. Pickett, 54 Ill. 2d 280, 282, 296 N.E.2d 856 (1973). Plain error exists only with respect to fundamental fairness : a procedural default will not preclude review of an issue involving substantial rights if to honor the bar would work fundamental [un]fairness. People v. Keene, 169 Ill. 2d 1, 17, 660 N.E.2d 901 (1995); see People v. Hamby,; 32 Ill. 2d 291, 294, 205 N.E.2d 456 (1965). Plain error marked by fundamental [un]fairness occurs only in situations which reveal breakdowns in the adversary system, as distinguished from typical trial mistakes. People v. Keene, 169 Ill. 2d 1, 17, 660 N.E.2d 901 (1995). Although plain errors and substantial rights would thus seem to identified categorically, independent of the circumstances of particular cases, the Keene court has noted that the quality of the alleged evidentiary error may depend on whether or not the evidence presented in a particular case was closely balanced. People v. Keene, 169 Ill. 2d 1, 18, 660 N.E.2d 901 (1995). Accordingly, substantial rights and plain error may be viewed as somewhat fluid concepts, varying with the strength or weakness of the inculpatory evidence in a given case. In summary, Illinois employs a two-part test under the plain error doctrine in criminal cases. An error admitting or excluding evidence may constitute plain error if the error affected the substantial rights of the defendant, or, independent of the nature of the right affected, simply because the evidence in the case was closely balanced. See People v. Keene, 169 Ill. 2d 1, 18, 660 N.E.2d 901 (1995); People v. Speight, 153 Ill. 2d 365, 379, 606 N.E.2d 1174 (1992). Illinois case law has been less than clear about exactly what constitutes plain error in a given case. One source of the confusion may be that the concept of substantial rights has a crucial role with respect to both reversible errors to which timely objections are made at trial and alleged in a posttrial motion and plain errors. However, the concepts cannot be interchangeable, or the dual requirements of a trial objection and posttrial motion would be rendered meaningless because they would play no role in the court of appeals analysis. At a minimum, appellate court review of trial errors to which timely objections are made at trial and which are alleged in posttrial motions should be subject to a relatively more searching inquiry than plain errors. ADDITIONAL AUTHORITY Weissenberger s Federal Evidence McCormick 51 52, Weinstein 2d Mueller & Kirkpatrick Wigmore 17, 18

8 0018 VERSACOMP (4.2 ) COMPOSE2 (4.43) 04/27/05 (17:08) J:\VRS\DAT\04570\ARTI.GML --- r4570.sty --- POST 219 ILLINOIS EVIDENCE COURTROOM MANUAL 18 Cleary & Graham s Handbook of Illinois Evidence RELEVANT ILLINOIS RULES AND STATUTES IllSCtR Illinois Supreme Court Rules 366. Powers of Reviewing Court; Scope of Review and Procedure; Lien of Judgment. (b) Scope of Review (1) General (i) Error of Law. Any error of law affecting the judgment or order appealed from may be brought up for review.... (2) Scope and Procedure on Review in Jury Cases. In jury cases the following rules govern:... (iii) Posttrial Motion. A party may not urge as error on review of the ruling on the party s posttrial motion any point, ground, or relief not specified in the motion. * * * * * IllSctR Illinois Supreme Court Rules 615. The Cause on Appeal. (a) Insubstantial and Substantial Errors on Appeal. Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court. 725IllCS Illinois Compiled Statutes * * * * * 5/ Motion for New Trial. (a) Following a verdict or finding of guilty the court may grant the defendant a new trial. (b) A written motion for a new trial shall be filed by the defendant within 30 days following the entry of a finding or the return of a verdict. Reasonable notice of the motion shall be served upon the State.

9 0019 VERSACOMP (4.2 ) COMPOSE2 (4.43) 04/27/05 (17:08) J:\VRS\DAT\04570\ARTI.GML --- r4570.sty --- POST RULINGS ON EVIDENCE (c) The motion for a new trial shall specify the grounds therefor. * * * * *