Current through Register Vol. 48, No. 12, March 22, 2024
c) Exceptions to Hearsay Regardless of
Declarant Availability
The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:
1) Illinois has not adopted the federal
Present Sense Impression to the hearsay rule (Federal Rules of Evidence
803(1)).
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.
3) 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), but not
including:
A) A statement of memory or belief
to prove the fact remembered or believed unless it relates to the execution,
revocation, identification or terms of declarant's will; or
B) A statement of declarant's then existing
state of mind, emotion, sensation or physical condition to prove the state of
mind, emotion, sensation or physical condition of another declarant at the time
or at any other time when the state of the other declarant is an issue in the
action.
4) Statements
for Purposes of Medical Diagnosis or Treatment
A) Statements made for the purpose 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 of the symptoms,
pain or sensations insofar as reasonably pertinent to diagnosis or treatment
but, subject to Section 400.715(a)(2), not including statements made to a
healthcare provider consulted solely for the purpose of preparing for
litigation or obtaining testimony for trial; or
B) In prosecution for violation of Sections
11-1.20, 11-1.30, 11-1.40, 11-1.50 and 11-1.60 of the Criminal Code of 2012 or
of a violation of an identical or closely-related provision of the criminal law
of the state where the offense occurred, and assimilated under Code Section
149, statements made by the victim to medical personnel for purposes of medical
diagnoses or treatment, including a description of the cause of symptom, pain
or sensations, or the inception or general character of the cause or external
source of the symptoms, pain or sensation insofar as reasonably pertinent to
diagnosis or treatment.
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. If
admitted, the memorandum or record may be read into evidence, but may not
itself be received as an exhibit unless offered by an adverse party.
6) Record of Regularly Conducted Activity
A) 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. This evidence shall be
presented by the testimony of the custodian or other qualified witness, or by
certification that complies with Section 400.725(b)(2)(K) or any other statute
permitting certification in a criminal proceeding in a court of the United
States. This exception from the hearsay rule applies unless the source of the
information or the method or circumstances of preparation indicate a lack of
trustworthiness. The exception does not, in criminal cases, include medical
records.
B) The term "business" as
used in this subsection (c)(6) includes the armed forces, a business,
institution, association, profession, occupation and calling of every kind,
whether or not conducted for profit.
C) The following are admissible under this
subsection (c)(6) as a record of a fact or event if made by a person within the
scope of the person's official duties and those duties included a duty to know
or to ascertain through appropriate and trustworthy channels of information the
truth of the fact or event and to record that fact or event:
i) enlistment papers;
ii) physical examination papers;
iii) outline figure and fingerprint
cards;
iv) forensic laboratory
reports;
v) chain of custody
documents;
vi) morning reports and
other personnel accountability documents;
vii) service records;
viii) officer and enlisted qualification
records;
ix) records of
court-martial convictions;
x)
logs;
xi) unit personnel
diaries;
xii) individual equipment
records;
xiii) guard
reports;
xiv) daily strength
records of prisoners; and
xv)
rosters of prisoners.
7) Absence of Entry in Records Kept in
Accordance with the Provisions of subsection (c)(6). Evidence that a matter is
not included in the memoranda reports, records or data compilations, in any
form, kept in accordance with the provisions of subsection (c)(6), to prove the
nonoccurrence or nonexistence of the matter, if the matter was of a kind of
which a memorandum, report, record or data compilation was regularly made and
preserved, unless the sources of information or other circumstances indicate
lack of trustworthiness.
8) Public
Records and Reports
A) Records, reports,
statements or data compilations in any form, of public offices or agencies,
setting forth:
i) the activities of the
office or agency;
ii) matters
observed pursuant to duty imposed by law as to which matters there was a duty
to report, excluding, however, police accident reports and, in criminal cases,
medical records and matters observed by police officers and other law
enforcement personnel; or
iii)
against the government, factual findings resulting from an investigation made
pursuant to authority granted by law, unless the sources of information or
other circumstances indicate lack of trustworthiness.
B) Notwithstanding subsection (c)(8)(A)(ii),
the following are admissible under this Section as a record of a fact or event
if made by a person within the scope of the person's official duties and those
duties include a duty to know or ascertain through appropriate and trustworthy
channels of information that truth of the fact or event and to record that fact
or event:
i) enlistment papers;
ii) physical examination papers;
iii) outline figure and finger print
cards;
iv) forensic laboratory
reports;
v) chain of custody
documents;
vi) morning reports and
other personnel accountability documents;
vii) service records;
viii) officer and enlisted qualification
records;
ix) records of
court-martial convictions;
x)
logs;
xi) unit personnel
diaries;
xii) individual equipment
records;
xiii) guard
reports;
xiv) daily strength
records of prisoners; and
xv)
rosters of prisoners.
9) Records of Vital Statistics. Facts
contained in records or data compilations, in any form, of births, fetal
deaths, deaths or marriages, if the report was made to a public office pursuant
to requirements of law.
10) Absence
of Public Record or Entry. To prove the absence of a record, report, statement
or data compilation in any form, or the nonoccurrence or nonexistence of a
matter of which a record, report, statement, or data compilation, in any form,
was regularly made and preserved by a public office or agency, evidence in the
form of a certification in accordance with Section 400.725(b) or testimony,
that diligent search failed to disclose the record, report, statement, data
compilation or entry.
11) Records
of Religious Organizations. Statements of births, marriages, divorces, deaths,
legitimacy, ancestry, relationship by blood or marriage, or other similar facts
of personal or family history contained in a regularly kept record of a
religious organization.
12)
Marriage, Baptismal and Similar Certificates. Statements of fact obtained in a
certificate that the maker performed a marriage or other ceremony or
administered a sacrament, made by a clergyman, public official, or other person
authorized by the rules or practices of a religious organization or by law to
perform the act certified, and purporting to have been issued at the time of
the act or within a time thereafter.
13) Family Records. Statements of facts
concerning personal or family history contained in family Bibles, genealogies,
charts, engravings on rings, inscription on family portraits, engravings on
urns, crypts or tombstones, etc.
14) Records of Documents Affecting an
Interest in Property. The record of a document purporting to establish or
affect an interest in property, as proof of the content of the original
recorded document and its execution and delivery by each person by whom it
purports to have been executed, if the record is a record of a public office
and an applicable statute authorizes the recording of documents of the kind in
that office.
15) Statements in
Documents Affecting an Interest in Property. A statement contained in a
document purporting to establish or affect an interest in property if the
matter stated was relevant to the purpose of the document, unless dealings with
the property since the document was made have been inconsistent with the truth
of the statement or the purport of the document.
16) Statements in Ancient Documents.
Statements in a document in existence 20 years or more, the authenticity of
which is established.
17) Market
Reports; Commercial Publications. Market quotations, tabulations, directories,
lists (including government price lists), or other published compilations
generally used and relied upon by the public or by persons in particular
occupations.
18) Reputation
Concerning Personal or Family History
A)
Reputation:
i) among members of the person's
family by blood, adoption or marriage;
ii) among the person's associates;
or
iii) in the community.
B) The reputation investigation
shall concern the person's birth, adoption; marriage; divorce; death;
legitimacy; relationship by blood; adoption or marriage; ancestry; or other
similar fact of the person's personal or family history.
19) Reputation Concerning Boundaries or
General History. Reputation in a community, arising before the controversy, as
to boundaries of or customs affecting lands in the community, and reputation as
to events of general history important to the community or State or nation in
which located.
20) Reputation as to
Character. Reputation of a person's character among the person's associates or
in the community.
21) Judgment of
Previous Conviction. Evidence of a final judgment, entered after a trial or
upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a
person guilty of a crime punishable by death, dishonorable discharge, or
imprisonment in excess of one year, to prove any fact essential to sustain the
judgment, but not including, when offered by the government for purposes other
than impeachment, judgments against persons other than the accused. The
pendency of an appeal may be shown but does not affect admissibility. In
determining whether a crime tried by court-martial was punishable by death,
dishonorable discharge, or imprisonment in excess of one year, the maximum
punishment prescribed by Code Section 56 at the time of the conviction applies
without regard to whether the case was tried by general, special or summary
court-martial.
22) Judgment as to
Personal, Family or General History or to Boundaries. Judgments as proof of
matters of personal, family or general history, or boundaries essential to the
judgment, if the same would be provable by evidence of reputation.
23) Receipt or Paid Bill. A receipt of a paid
bill as prima facie evidence of the fact of payment and a prima facie evidence
that the charge was reasonable. (Il. Mil. R. Evid. 803)
d) Exceptions to Hearsay When the Declarant
is Unavailable
1) Definition.
"Unavailability as a Witness" means situations in which the
declarant:
A)
is
exempted by ruling of the military judge on the ground of
privilege from testifying concerning the subject matter of the
declarant's statement;
B)
persists in refusing to testify
concerning the subject matter of the declarant's statement despite an
order of the military judge to do so; [ 725 ILCS
5/113-10.2(c) and 725 ILCS 4/115-10.2a(c) ]
C)
testifies to a lack of memory of
the subject matter of the declarant's statement;
D)
is unable to be present or to
testify at the hearing because of health or then existing physical or mental
illness or infirmity;
E)
is absent from the hearing and the proponent of the declarant's
statement has been unable to procure the declarant's attendance (or,
in the case of a hearsay exception under subsection (d)(3)(B), (C) or (D), the
declarant's attendance or testimony by process or other reasonable
means; or [
725
ILCS 5/115-10.2a(c) ]
F) is unavailable within the meaning of Code
Section 49(d)(2).
2)
A declarant is not unavailable as a witness if the declarant's
exemption, refusal, claim of lack of memory, inability or absence is
due to the procurement or wrongdoing of the proponent of the
declarant's statement for the purpose of preventing
the witness from attending or testifying.
3) Hearsay Exceptions. The following are not
excluded by the hearsay rule if the declarant is unavailable as a witness.
A) Former Testimony. Testimony given as a
witness at another hearing of the same or different proceeding, or in an
evidence deposition taken in compliance with law in the course of the same or
another proceeding, if the party against whom the testimony is now offered had
an opportunity and similar motive to develop the testimony by direct, cross- or
redirect examination. A record of testimony given before courts-martial, courts
of inquiry, military commissions, or other military tribunals, and before
proceedings pursuant to or equivalent to those required by Code Section 32 is
admissible under this subsection (d)(3)(A) if that record is a verbatim record.
This subsection (d)(3)(A) is subject to the limitations set forth in Code
Sections 49 and 50.
B) Statement
Under Belief of Impending Death. In a prosecution for homicide or for any
offense resulting in the death of the alleged victim, a statement made by a
declarant while believing that the declarant's death was imminent, concerning
the cause or circumstances of what the declarant believed to be the declarant's
impending death.
C) Statement
Against Interest. A statement that was, at the time of its making, so far
contrary to the declarant's pecuniary or proprietary interest, or so far tended
to subject the declarant to civil or criminal liability or to render invalid a
claim by the declarant against another, that a reasonable person in the
position of the declarant would not have made the statement unless the person
believed it to be true. A statement tending to expose the declarant to criminal
liability and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the
statement.
D) Statement of Personal
or Family History
i) A statement concerning
the declarant's own: birth; adoption; marriage; divorce; legitimacy;
relationship by blood, adoption or marriage; ancestry; or other similar fact of
personal or family history, even though the declarant had no means of acquiring
personal knowledge of the matter stated; or
ii) a statement concerning the matters listed
in subsection (d)(3)(D)(i), and death also, of another person, if the declarant
was related to the other by blood, adoption, or marriage or was so intimately
associated with the other's family as to be likely to have accurate information
concerning the matter declared.
E) Forfeiture by Wrongdoing. A statement
offered against a party that has engaged or acquiesced in wrongdoing that was
intended to, and did, procure the unavailability of the declarant as a witness.
(Il. Mil. R. Evid. 804)
f) Attacking and Supporting the Declarant's
Credibility
1) When a hearsay statement, or a
statement described in subsections (a)(2)(B)(iii), (iv) or (v), has been
admitted in evidence, the declarant's credibility may be attacked, and then
supported, by any evidence that would be admissible for those purposes if the
declarant had testified as a witness.
2) The military judge may admit evidence of
the declarant's inconsistent statement or conduct, regardless of when it
occurred or whether the declarant had an opportunity to explain or deny
it.
3) If the party against whom
the statement was admitted calls the declarant as a witness, the party may
examine the declarant on the statement as if on cross-examination. (Il. Mil. R.
Evid 806)