SOUTHERN ILLINOIS UNIVERSITY

LAW JOURNAL

Volume 28                                                                                   Winter 2004

Keith H. Beyler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225

In 2002, the Illinois Supreme Court adopted its third witness disclosure rule. Nearly 20 years earlier, the court had adopted its first such rule, Supreme Court Rule 220. On close inspection, however, the Rule 220 requirements did not cover all expert witnesses. So, in 1995, the Illinois Supreme Court adopted its second witness disclosure rule, repealing Rule 220 and amending Rule 213, to address the witness disclosure concerns. While this change solved most of Rule 220's problems, Rule 213 had problems of its own. Part I of this article reviews the lessons learned under the first two rules. In 2001 and 2002, the Illinois Supreme Court Rules Committee considered proposed solutions to Rule 213's problems and adopted its third witness disclosure rule. The development of the new rule, an amended version of Rule 213, took place in several stages before its adoption by the Supreme Court. Part II of the article describes this new rule’s drafting history. Since new Rule 213 took effect, the changes made by the rule have raised issues. In particular, the meanings of the terms “retained” expert and “reasonable notice” have been questioned. Part III of the article discusses these key issues under the new rule.  Part IV of the article proposes the Illinois Supreme Court next adopt rules that allocate and reduce the expense of discovering the opinions of treating physicians. With the new rule in place, these issues have come to light. These concerns are the newest in a long line of witness disclosure issues in Illinois. Articles Editor, Allen D. Roe.

Craig M. Cooley, M.S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273

Forensic science and capital punishment are increasingly at the forefront of America’s consciousness. Not a day goes by where the media fails to mention capital punishment’s various injustices or forensic science’s advancing technology. Forensic science, which is the application of science to law, has been an invaluable tool for the criminal justice system for over a century. While forensic science and capital punishment are hot topics of discussion, they are also invariably intertwined with one another. This is because capital punishment can only be imposed where a death has occurred. Thus, it is not surprising that physical evidence is employed by the state to establish the criminal elements of homicides more so than any other type of violent crime. As a result, forensic evidence and testimony are essential in deciding a capital case’s outcome. For one reason or another, it is perceived by many legal actors, namely judges and attorneys, that jurors typically ascribe more authority to physical evidence than other evidence. A primary focus of this Article is concerned with how individualizing forensic evidence is perceived and weighed by individuals who sit, and do not sit, on capital juries. It was predicted that people who are permitted to serve on capital juries (death-qualified subjects) tend to rate forensic individualization evidence as more trustworthy and thus give it more weight than people who are excluded from serving on capital juries due to their opposition to the death penalty (excludable subjects). After reading a brief scenario regarding a homicide, subjects were asked to rate the various forms of forensic individualization evidence identified in the homicide scenario. Once completed, respondents answered a death qualification question. Death-qualified respondents rated the individualization evidence more reliable, though not significantly, than excludable subjects. Death-qualified respondents were also more likely than excludables, though not significantly, to assume the defendant’s guilt based solely on individualization evidence. Lastly, death-qualified respondents were more prone, though not significantly, to convict the defendant based exclusively on individualizing evidence. Articles Editor, Jason Gann.

Dorothy H. Evensen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343

The purpose of this qualitative study was to investigate the phenomenon of group learning in law schools. Specifically, 141 second- and third-year students at 7 different law schools were asked to describe their perceptions and experiences with group learning. Most students focused on their first-year experiences with study groups. Findings indicated that although study groups are pervasive in the first year of law school, few are sustained; and although students recognize particular benefits from participating in study groups, few believe that the necessary high investment is worth the small return in terms of grades. Groups that persisted over the entire first year attributed their success to diversity among members, trust achieved through confronting interpersonal discomforts, and high levels of personal investment, or dedication to the group activities. These identified benefits of collaborative work align well with learning theories predicated on social relations. Articles Editor, Megan Rich.

Becky A. Ray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423

With the advancement of assisted reproductive technologies such as in vitro fertilization (IVF) in recent years, people who were previously unable to conceive children through traditional methods have been given a new opportunity to experience parenthood. Unfortunately, IVF has created a problem as yet unsolved–what to do with the more than 200,000 excess embryos being cryopreserved in our country. Although the United States government supports an embryo adoption program to reduce the number of frozen embryos in storage, state legislatures have not taken the initiative to pave the way for such adoptions by enacting adequate legislation. This author advocates the implementation of a uniform law governing in vitro fertilization clinic procedures and embryo adoption procedures to facilitate the transfer of excess embryos from donor parents to intended parents. A uniform law would reduce the possibility of a contract between the parties to facilitate an embryo adoption being declared unenforceable as against public policy, as many surrogacy contracts have been. Additionally, a uniform law would give the judiciary some guidance in resolving any disputes which may arise and allow them to interpret the law of embryo adoptions rather than write it. Editor, William Hudson.

Joe Wetzel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455

In situations involving routinely maintained items, a claim for spoliation of evidence places an extreme burden on the defendant to keep potential items of evidence from being altered. This creates tension between a plaintiff’s need to prove a case with the actual evidence and the defendant’s burden to store or catalog these items. There are two critical concepts that form the basis of a spoliation claim that may not be present with routinely maintained items. The first is the creation of a legal duty to preserve evidence. Second is the foreseeability of a potential claim for spoliation. The author contends that routinely maintained items should not be the subject of a spoliation claim if the plaintiff has not given reasonable notice to the defendant of the relevance of the evidentiary item. The proposed resolution would add a notice element to a current jury instruction normally used in Illinois for spoliation of evidence. This would provide a defendant with less of a burden to indefinitely keep items and also allow a defendant to maintain and service items of potential evidence. Editor, Becky A. Ray.

Bob Neiner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 483

In the 2002 decision of Happel v. Wal-Mart Stores, Inc., the Illinois Supreme Court carved out a new exception to the Learned Intermediary Doctrine. Pharmacists now have a duty to warn if they are aware a specific patient has an allergy that causes a drug contraindication. This casenote examines the background of the pharmacist’s duty to warn. Next it advocates the expansion of the new duty to warn to include situations when a pharmacist notices an excessive dose prescribed to a patient. This casenote concludes that the new duty to warn will protect future consumers, but a wider duty on pharmacists is warranted given the pharmacist’s training, knowledge and expertise recognized by the Illinois legislature. Editor, Becky A. Ray.

Allen D. Roe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505