The commentary reiterates: «The Illinois Rules of Evidence permit the Illinois Legislature to act in the future with respect to the law of evidence, as long as the relevant law does not conflict with a decision of the Illinois Supreme Court or a decision of the Illinois Supreme Court.» Through numbered paragraphs, the commentary then provides a roadmap for the changes that the rules entail. «There would certainly be no input from the executive. The governor can see the law before enacting it. He does not see the rules of the court. The Committee`s commentary also highlights certain rules it reserved for itself after the hearings on its initial draft. For example, Rule 407, Post-Occurrence Remedy, is reserved. Perhaps the most important of Illinois` rules of evidence is the very first, Rule 101. Rule 101 provides, in its entirety: «These Rules govern proceedings in the courts of Illinois to the extent and with the exceptions specified in Rule 1101. A legal rule of evidence is effective unless it conflicts with a rule or decision of the Illinois Supreme Court. The Committee then notes in paragraph 3 numbered that it included 14 improvements in the Rules where there was no conflict with Illinois bylaws or recent decisions of the Supreme Court or Court of Appeals, and concluded that these improvements were beneficial and were accepted uniformly or almost uniformly elsewhere. Hudson said the issue of modernization sparked most of the committee members` discussions.

«We wanted to stay true to our mandate to codify the law of evidence in Illinois, but in the course of our work, we found that some ground rules had not been revised or revised in decades.» Former Illinois appeals judge Warren Wolfson, now dean of Chicago`s DePaul School of Law, who also served on the committee, noted, «No one got everything they wanted.» Ruebner, for example, said he would like to see Illinois repeal the Dead Man`s Act. Chicago attorney Bruce R. Pfaff agreed with Ruebner, saying he also preferred to see official comments and quotes after each rule. The new rules include in the preface several paragraphs of the committee`s commentary, written by Justice Hudson as chair. Consistent with Fitzgerald`s vision, the commentary states: «Having all the basic rules of evidence in an easily accessible and authoritative source will greatly increase the efficiency of the judicial process and expedite the resolution of cases for the benefit of the practising bar, the judiciary and the litigants involved.» Finally, in its commentary to paragraph 7, the Committee states that in the event of dismissal, the applicable rule of evidence and not other rules of the Supreme Court must be cited. In his own preface to the new edition of his Illinois evidentiary textbook, Professor Graham lays out the redundant rules and suggests that they can be repealed. For example, paragraph 402(f) of the SCR was replaced by Illinois Rules of Evidence 410 and 238(a) and paragraph 433 of the Illinois Rules of Evidence by Illinois Rules of Evidence 607 and 611(c). In paragraph 5 of the commentary, the Committee notes that the new rules on hearsay exceptions remove the distinction between civil and criminal commercial and public documents in favour of the traditional and otherwise uniformly accepted separation between commercial documents (Article 803, paragraph 6) and public documents and reports (Article 803, paragraph 8), both of which apply equally in civil and criminal matters.

The Committee described this amendment as «structural» because SCR 236 had recognized this exception in civil matters and article 115 of the Code of Criminal Procedure (725 ILCS 5/115) had recognized it in criminal matters, with the exception of medical records and police investigation files. The new rules retain the latter exception. The committee concluded that the change was not controversial, would benefit Illinois court proceedings, and was reflected in federal rules and the rules of the other 44 jurisdictions studied. The Committee identified and listed in this subsection (3) other amendments that, in its opinion, were also not controversial and, if adopted, would also benefit the judicial practice of Illinois. «We included them in our rules because they would allow our courts to operate more efficiently and effectively, speeding up the process for lawyers, litigants and judges,» Hudson said. (It is important to note that the rules codify the Frye standard for admitting expert testimony – for more information, see LawPulse at page 614.) Hudson and the other committee members interviewed, as well as two lawyers who testified at the May hearings, praised the committee`s work and the final outcome. Hudson said: «Our design is the result of a dynamic and interactive process. We first identified, reviewed and discussed in depth all the rules individually. We then tried to incorporate all the existing rules into the Code and at the same time not affect the validity of existing laws.

DiVito cautions lawyers accordingly: «There are still rules of evidence that are in the statutes, but not in the code of evidence. You need to know them. To address this inefficiency, on November 24, 2008, at Fitzgerald`s urging, the Supreme Court appointed a 19-member Illinois Special Court Panel on Evidence and mandated it to codify the State Evidence Act. Chaired by Illinois Appellate Judge Donald C. Hudson, the committee met from December 2008 to October 2009, with numerous phone calls and emails between and after, according to the committee`s lawyer, Professor Michael H. Graham of the University of Miami School of Law. Fitzgerald himself attended most of those meetings, Hudson said. She does not think it would be a good idea for the Supreme Court to be the sole evidentiary authority. «If we put in place a system where the Supreme Court set all the rules of evidence and civil procedure, there would be no legislative input and no oversight. DiVito made a color-coded comparison of Illinois` new rules and federal rules of evidence, as well as his own comments, available for free download in .pdf form on his corporate website in www.tdrlawfirm.com/downloads/Illinois_Rules_of_Evidence_Color-Coded_Guide.pdf. Now that Illinois` rules of evidence are codified and easily accessible, Graham expresses personal hope that Illinois regulators will consider adding evidence to subjects tested on the Illinois Bar exam.

Professor Michael H. Graham of the University of Miami School of Law, author of a leading article on Illinois evidence and advisor to the committee, notes that «by codifying the rules of evidence as trial rules, the court has now become the leading authority on evidence.» As noted in the accompanying section, the Committee chose not to include or specifically refer to all of the legal evidentiary provisions of the Code because it felt that doing so would have led to a freeze and thus limited Parliament`s power to amend them.