Turn and Face the Strange Ch-Ch-Changes1 Supreme Court Amends Hearsay Exception Rule

Turn and Face the Strange Ch-ChChanges1 Supreme Court Amends Hearsay Exception Rule

BY HON. CHARLES JOHNSON

On March 13, 2016, Ryan James Deroo was driving his Grandma’s car on Turkey Hollow Road in Rock Island County when he lost control of the car, which flipped over several times and crashed into a ditch.2 Deroo was charged with Aggravated Driving Under the Influence,3 based on his four prior DUI convictions. At trial, the State introduced testimony of an eyewitness to the crash, as well as the medical records of Deroo’s treatment at an emergency room that night.

123These included blood tests that were performed as part of his treatment, which disclosed the presence of alcohol in Deroo’s blood.4

Deroo, for his part, testified that he was not driving the car at the time of the crash, but instead that a person known only as “T” was driving. Deroo knew nothing more about “T,” including where he came from or where he went after the accident. This rock-solid defense apparently was insufficient, as Deroo 1 Bowie, David “Changes” UK: RCA Records. 1972. RCA 2160. 2 People v Deroo, 2022 IL 126120, ¶4. 3 Deroo was charged with Agg DUI: 625

ILCS 5/11-501(a)(2),(d)(2)(D); Agg DUI per se: 625 ILCS 5/11-501(a)(1), (d)(2) (D); and Agg Driving While Suspended: 625 ILCS 5/6-303(d). 4 .209 BAC; 2022 IL 126120, ¶¶4, 9. was convicted of the charged offenses and sentenced to nine years on the DUI and three on the Driving While Suspended. This relatively prosaic felony DUI case then turned into a fascinating decision on the business records exception to the hearsay rule. Hon. Charles D. Johnson has been an Deroo appealed his conviction, alleging that the State’s introduction of his blood test results violated IlliAssociate nois Rule of Evidence 803(6), which Judge for the provides:19th Judicial Circuit since 2005. He was an assistant RULE 803. HEARSAY EXCEPTIONS; Lake Coun- AVAILABILITY OF DECLARANT ty State’s IMMATERIAL Attorney from 1990 to 1994, and a local prosecutor from 1994 to 2005. He is currently assigned to the The following are not excluded by the hearsay rule, even though the declarant is available as a witness: Criminal Division. * * *

(6) Records of Regularly Conducted Activity. 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, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness, but not including in criminal cases medical records. The term

‘business’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. (Emphasis added.)

Tortured syntax notwithstanding, that seems pretty clear, right? No medical records in criminal cases. The State, on the other hand, had sought (and achieved) admission of the blood test results pursuant to section 11501.4(a) of the Illinois Vehicle Code,5 which provides: § 11-501.4. Admissibility of chemical tests of blood, other bodily substance, or urine conducted in the regular course of providing emergency medical treatment. (a) Notwithstanding any other provision of law, the results of blood, other bodily substance, or urine tests performed for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof, of an individual’s blood, other bodily substance, or urine conducted upon persons receiving medical treatment in a hospital emergency room are admissible in evidence as a business record exception to the hearsay rule only in prosecutions for any violation of Section 11-501 of this Code or a similar provision of a local ordinance, or in prosecutions for reckless homicide brought under the Criminal Code of 1961 or the Criminal 5 625 ILCS 5/11-501.4(a).

Code of 2012, when each of the following criteria are met: (1) the chemical tests performed upon an individual’s blood, other bodily substance, or urine were ordered in the regular course of providing emergency medical treatment and not at the request of law enforcement authorities; (2) the chemical tests performed upon an This relatively prosaic individual’s blood, other bodily substance, or felony DUI case then urine were performed by the laboratory routinely turned into a fascinating used by the hospital; and (3) results of chemical tests performed upon an decision on the business individual’s blood, other bodily substance, or records exception to the urine are admissible into evidence regardless of hearsay rule. the time that the records were prepared. (Emphasis added.) Well, okay. That seems pretty straightforward as well. Ay there’s the rub.6 Defendant argued in the Appellate Court that the statute and the rule were in direct conflict, and if a statutory rule of evidence conflicts with a Supreme Court Rule, then the Supreme Court Rule prevails.7 This would, of course, have resulted in the exclusion of the blood test evidence. Despite this rule of interpretation and the very obvious conflict in language between the two provisions of law, the Appellate Court found that there was no conflict at all. The Court relied on People v Hutchison, 8 which, in addressing this same issue, had examined the committee comments to the Illinois Rules of Evidence, enacted Jan. 1, 2011. The comments said that the rules were “not intended to abrogate or supersede any… statutory rule of evidence” that existed at the time of the adoption of the Rules.9 Since §11-501.4 existed at the time of the adoption of the Rules of Evidence, and the committee comments said the Rules were not intended to supersede the statute, the Appellate Court found that there was, in fact, no conflict, and that the statutory hearsay exception applied to allow the admission of the medical records. Deroo’s conviction was therefore affirmed.10 Unsurprisingly, Deroo was unsatisfied with this result, and appealed to the Supreme Court. Once again he argued the obvious conflict, and urged the high Court to apply the rule of interpretation that would favor the Supreme Court Rule.11 The State, relying on its successful 6 Shakespeare, Wm., Hamlet, Act III, Scene I. 7 People v Deroo, 2020 IL App (3d) 170163, ¶39. 8 2013 IL App (1st) 102332. 9 People v Hutchison, 2013 IL App (1st) 102332, ¶¶18, 24. 10 2020 IL App(3d) 170163, ¶46. 11 Interestingly, this is the argument put forth by Justice Holdridge in his dissent to the Appellate decision; 2020 IL App (3d) 170163,

argument at the Appellate level, argued that there was no conflict at all. More pointedly, the State argued that the Supreme Court, in adopting the rules of evidence, had concluded that “[t]here [wa]s no current statutory rule of evidence that [wa]s in conflict with…the Illinois Rules of Evidence.” Based on this finding, the State argued that there was no conflict (because the Supreme Court had said so), and that the statutory hearsay exception should stand, allowing the admission of the evidence.12

The Supreme Court began its analysis by finding that the language of the statute and of the rule was clear and unambiguous, and plainly in conflict: “each provision, by its plain language, directs a different action; …803(6) prohibits what section 11-501.4 allows.”13 In considering the State’s argument, the Court found that, because the language was clear and unambiguous, it should not resort to extrinsic aids of construction such as the committee comments for resolution of the conflict.14 The Court then provided an interesting historical perspective of the business records exception.

THE LONG AND WINDING ROAD15

Dating back to the early 1920’s, Illinois courts had held that, for a hospital record to be admissible as an exception to the hearsay rule, there must be live testimony by the creator of the record that it is correct. This was especially true if the record contained a diagnosis or medical opinion, in order to allow the maker of the opinion or diagnosis to be subject to cross-examination. For many years, there was a debate in the courts as to whether such opinions required expert testimony by the maker of the opinion.16 In Wright v. Upson, the Court held that “(i)f the hospital record is admissible at all, it is for the same reason that books of account are admissible, and the same character of proof is required, and all persons who make entries therein are required to testify to their correctness before they are admitted in evidence.” (emphasis added.)17 In the 1960’s, these common-law rules were codified in both the Code of Criminal Procedure18 and Supreme Court Rules.19 Both sections specifically excluded medical records from the category of business records that could be admitted as exceptions to the hearsay rule.

The adoption of Federal Rule of Evidence 803(6) in 1975 largely eliminated this situation in federal courts, by stating specifically that records containing opinions and diagnoses were admissible under the business records exception.20 The theory behind the change was that opinions and diagnoses bore the same level of reliability as other business records, inasmuch as they were relied on by the

¶48, et seq. 12 2022 IL 126120, ¶23. 13 2022 IL 126120, ¶22. 14 Id. ¶24. 15 Lennon, John/McCartney, Paul, Apple Records, 1970 16 Irene M. Sheridan, Wilson v. Clark: The Need to Include Medical

Records in the Business Records Exception to the Hearsay Rule, 13 Loy. U. Chi. L.J. 587, 592-93 (1982). 17 Wright v. Upson, 303 Ill. 120, 144 (1922). 18 Ill. Rev. Stat. 1967, ch. 38, ¶ 115-5. 19 Ill. Rev. Stat. 1967, ch. 110A, ¶ 236. 20 2022 IL 126120, ¶36. business (the hospital) in day-to-day operations (often with lives at risk).21 On this basis, the federal courts allowed the admission of hospital records as an exception to the hearsay rule as a matter of law. Thereafter, the Illinois legislature enacted §11-501.4 in 1988,22 and the Illinois Supreme Court amended Rule 23623 in 1991 to allow medical records to be included in the business records exception. However, when the Supreme Court adopted the Illinois Rules of Evidence (including Rule 803) in 2010, it copied the existing Federal Rules, but inserted the line about excluding medical records in criminal cases.24 The Supreme Court was attempting to be mindful not to supersede or invalidate any existing rules of evidence, including §115-5, but in so doing, it essentially re-invigorated the old common-law rule (at least for criminal cases) that it had been moving toward eliminating.25 Thus, as of 2011, we had §115-5 and Rule 803(6), which excluded medical records as business records exceptions to the hearsay rule, and §11-501.4 and Rule 236, which included them. What could go wrong?

Mr. Deroo’s case, that’s what. Despite the previous cases that side-stepped the obvious conflict,26 the Supreme Court took this one head-on. In doing so, the Court noted that:

“Though used sparingly, this court has expressly reserved the prerogative to depart from the rulemaking procedures set forth in Illinois Supreme Court Rule 3 (eff. July 1, 2017) and may utilize a case before us as a vehicle to adopt a rule change.” In re B.C.P., 2013 IL 113908, ¶ 17, 371 Ill.Dec. 757, 990 N.E.2d 1135. 27

It even went so far as to quote Professor Michael Graham, Special Advisor to the Illinois Supreme Court Committee on Rules of Evidence:

It is difficult to acknowledge that [the rule set forth in Wright requiring the exclusion of medical records from the business records exception] continued to represent the state of the law of admissibility of hospital records in

Illinois for nearly 70 years. The requirement of calling or accounting for all persons making entries has virtually disappeared from the law of evidence everywhere as applied to business records generally. *** No reason for continuing it with respect to hospital records was advanced, and none is apparent. *** The objection to opinions in the form of diagnoses or recitals of the patient’s condition is equally outmoded. The rule against opinions as it once was conceived has been revised so as to admit opinions that may be helpful to the trier of fact, and this attitude needed to be extended to hospital records.” Michael H. Graham, Graham’s

21 Sheridan, note 16, supra, at 603. 22 Pub. Act 85-992 §1 (eff. Jan. 5, 1988). 23 Ill. Rev. Stat. 1967, ch. 110A, ¶ 236. 24 2022 IL 126120, ¶36. 25 Id., ¶41. 26 Hutchison and Appellate-level Deroo, supra. 27 2022 IL 126120, ¶40.