CBA Record November-December 2023

YOUNG LAWYERS SECTION

ADMISSIBILITY OF REBUTTAL EVIDENCE By Elaina M. Stevens

R ebuttal evidence may come in the form of evidence not initially pre sented or through a witness who is needed to refute the testimony of another witness but who was not initially disclosed. However critical rebuttal evidence may be, though, the ability to introduce it is not a right. Indeed, such evidence can only be admitted in limited circumstances. Illinois appellate courts have held that rebuttal evidence may be used only to contradict evidence relating to material issues—not collateral or immaterial mat ters. Trial courts have broad discretion in determining whether rebuttal evidence is admissible. It is generally admissible if it explains, repels, contradicts, or disproves evidence of a witness or evidence that has already been presented. A plaintiff does have a right to introduce rebuttal evidence if a defendant presents new or affirmative evidence supporting its defense in its case in-chief. Illinois appellate courts make clear that a trial court abuses its discretion when a party is prevented from presenting rebuttal evidence to impeach witnesses, support the credibility of impeached wit nesses, or respond to new points raised by the opponent. To be admissible, Illinois appellate courts have held that rebuttal evidence must contradict already presented evi dence. However, this contradiction cannot be based on issues that are irrel evant or immaterial. If the evidence could be introduced for any purpose other than to contradict, Illinois courts generally find such evidence to be collateral. For exam ple, in People v. McGhee, 20 Ill. App. 3d

915 (1974), the First District found that the trial court improperly considered the prosecution’s rebuttal evidence in finding defendants guilty of aggravated battery. After being arrested for DUI and trans ported to the police station, the defen dants were alleged to have assaulted the arresting officers. After the defense rested at trial, the trial court allowed the pros ecution to present rebuttal testimony that following the altercation, the defendants refused to cooperate with police and were under the influence of alcohol. The trial court ultimately found the defendants guilty based on this improperly admit ted evidence. In finding that this rebuttal testimony was immaterial to the aggra vated battery charge, the appellate court reasoned that the defendants’ conduct occurred after the altercation for which the defendants were being tried, and thus, it was collateral to the substantive issues of the trial. Illinois appellate courts have held that it is an error for trial courts to exclude rebuttal evidence when a defendant presents affirmative evidence during the defense’s case-in-chief. In Pellico v. E.L. Ramm Co., 68 Ill. App. 2d 322 (1st Dist. 1966), the appellate court determined the trial court erred when it sustained the defendant’s objection to the plaintiff’s proposed rebuttal evidence in response to new evidence the defendant presented during the defense case-in-chief. In doing so, the appellate court observed that “where a defendant introduces evidence of an affirmative matter in defense or justification, the plaintiff, as a matter of

right, is entitled to introduce evidence in rebuttal as to such affirmative matter.” Pellico, 68 Ill. App. 3d at 328. Likewise, in Lagestee v. Days Inn Man agement Co., 303 Ill. App. 3d 935 (1st Dist. 1999), the appellate court held it was error for the trial court to restrict the plaintiffs’ right to rebut the affirma tive matters raised in a defense witness’s testimony. A plaintiff was injured on defendants’ premises. At trial, a defense witness testified that the injured plaintiff instructed the witness to lie in a recorded statement about helping the plaintiff when the plaintiff was hurt. Plaintiffs sought leave to call two witnesses to rebut the testimony that the witness lied on the tape recording about assisting the plaintiff, but the trial court denied the request. On appeal, the appellate court held that the defendants raised an affirma tive matter supporting their defense, and therefore, the plaintiffs were entitled to rebut the defendants’ new evidence. The court explained that the trial court’s fail ure to allow the rebuttal testimony preju diced the plaintiffs, as they should have been given the opportunity to deny the witness’s allegations, which went to the heart of the case on the issue of liability and had a direct impact on the credibility of the injured plaintiff. Flanagan v. Redondo, 231 Ill. App. 3d 956 (1st Dist. 1992), is another example of a proper rebuttal in response to matters raised during the defense case-in-chief. There, the defense expert introduced affir mative evidence when he used a skeletal model to explain the ineffectiveness of a

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