People v. Deroo , 2022 IL 126120 ( 2022 )

2022 IL 126120IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 126120)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RYAN JAMES DEROO,
Appellant.
Opinion filed March 24, 2022.
CHIEF JUSTICE ANNE M. BURKE delivered the judgment of the court, with
opinion.
Justices Garman, Theis, Neville, Michael J. Burke, and Overstreet concurred in
the judgment and opinion.
Justice Carter took no part in the decision.
OPINION
¶1 Following a jury trial in the circuit court of Rock Island County, defendant Ryan
James Deroo was convicted of aggravated driving under the influence (DUI) and
aggravated driving while his license was revoked and sentenced to concurrent terms
of imprisonment of nine and three years, respectively. During his trial, the results
of a chemical blood test establishing defendant’s blood alcohol content were
admitted into evidence pursuant to section 11-501.4(a) of the Illinois Vehicle Code
(625 ILCS 5/11-501.4(a) (West 2016)). This provision allows the admission of
chemical tests of blood conducted in the course of emergency medical treatment
“as a business record exception to the hearsay rule.” Id.¶2 On appeal, defendant maintained that section 11-501.4(a) conflicts with Illinois
Rule of Evidence 803(6) (eff. Apr. 26, 2012), which expressly excludes “medical
records in criminal cases” from the business records exception to the hearsay rule.
Defendant further contended that Illinois Rule of Evidence 803(6) should control
over section 11-501.4(a) and, therefore, that the results of the chemical blood test
should have been deemed inadmissible hearsay. The appellate court found no
conflict between the statute and the rule of evidence and affirmed. 2020 IL App
(3d) 170163. We now affirm the judgment of the appellate court, although we do
so on different grounds.
¶3 BACKGROUND
¶4 Defendant was charged in the circuit court of Rock Island County with
aggravated driving under the influence of alcohol following four prior DUI
convictions (625 ILCS 5/11-501(a)(2), (d)(2)(D) (West 2016)), aggravated DUI
with a blood alcohol concentration of 0.08 or greater following four prior DUI
convictions (id. § 11-501(a)(1), (d)(2)(D)), and aggravated driving while his license
was revoked (id. § 6-303(d)). At trial, evidence introduced by the State showed that
on the evening of March 13, 2016, defendant was drinking with some of his friends
in his grandmother’s garage at her home in Aledo, Illinois. After the friends left,
defendant got into his grandmother’s car, alone, and drove away. Defendant headed
north on Turkey Hollow Road, a two-lane, rural road in Rock Island County.
Defendant was speeding, and as he approached a curve, he lost control of his
grandmother’s car. The car went off the road, flipped several times, and crashed
into a ditch along the east side of the road. Carrie Olsen, a witness to the accident,
testified that she stayed near the crash site until emergency personnel arrived. Olsen
saw only one person in the car.
¶5 Bruce Retherford, a paramedic, testified that he was called to the scene of
defendant’s accident. When he arrived, he saw a car in the ditch on the side of the
-2-
road and defendant hanging from the waist up out of the driver’s side window. No
one else was in the car. Retherford helped remove defendant and get him into an
ambulance. While examining defendant, Retherford noticed that he had a “very
strong odor of beer” on his breath and that his pupils’ reaction to light was
consistent with intoxication. Further, defendant’s mood was unstable, alternating
between hostility and friendship toward Retherford. In Retherford’s opinion,
defendant was intoxicated. Retherford stated that defendant suffered several
lacerations, including a severe laceration to his face, and was transported to the
emergency room at Trinity Hospital in Rock Island.
¶6 Jennifer Wilkinson was the emergency room nurse on duty when defendant
arrived at the hospital. She testified that defendant was uncooperative, “kept trying
to leave,” and was “very rude [and] disrespectful” to the hospital staff. Defendant
admitted to Wilkinson that he had been drinking, and Wilkinson believed that he
was intoxicated.
¶7 Dr. Douglas Gaither treated defendant at the hospital and testified that he
ordered defendant’s blood drawn as a regular part of his emergency room treatment.
Gaither stated that defendant’s blood was analyzed at the laboratory in the hospital,
which was the laboratory routinely used by the emergency room for blood testing.
According to Gaither, defendant’s blood alcohol test showed a serum concentration
of 247 milligrams of alcohol per deciliter. Gaither further stated that defendant’s
speech was slurred and that he asked defendant if he had been drinking. Defendant
admitted that he had. Based on this response, as well as defendant’s slurred speech,
his slow reaction time when he was asked questions, and the results of the blood
alcohol test, Gaither believed that defendant was intoxicated.
¶8 Rock Island County sheriff’s deputy Claire Woodthorp testified that she spoke
with defendant in the emergency room. According to Woodthorp, defendant’s
speech was very slow and slurred, and he smelled strongly of alcohol. Defendant
admitted to Woodthorp that he had “totaled the car” but was unwilling to answer
any other questions or make any eye contact. Woodthorp asked defendant to
consent to a blood draw, but he refused. Woodthorp stated that she did not direct
any of the hospital staff to conduct a blood draw. Given the circumstances of
defendant’s accident and his condition in the emergency room, Woodthorp believed
-3-
defendant was intoxicated. She therefore issued him a citation for driving under the
influence of alcohol.
¶9 John Wetstein, toxicology training coordinator for the Illinois State Police
forensic science service, testified regarding the conversion of serum blood alcohol
concentration results to whole blood alcohol concentration results. Wetstein
explained that the term “blood serum” refers to only that portion of blood that is
left when all clotting factors, proteins, and fats are removed. The statutory standard
for the offense of driving under the influence, which is set at 0.08 grams of alcohol
or greater per deciliter, is expressed in terms of whole blood, not serum blood.
Wetstein stated that serum blood alcohol results can be converted to whole blood
results by dividing by 1.18. Applying this formula, Wetstein concluded that
defendant’s serum blood alcohol concentration of 247 milligrams of alcohol per
deciliter converted to 0.209 grams of alcohol per deciliter of whole blood, or more
than twice the legal limit.
¶ 10 The State sought admission of the results of defendant’s blood alcohol test
pursuant to section 11-501.4(a) of the Vehicle Code (id. § 11-501.4(a)). Under
section 11-501.4(a), the results of chemical tests of blood conducted in the course
of emergency medical treatment may be admitted into evidence in prosecutions for
DUI “as a business record exception to the hearsay rule” so long as certain
foundational requirements are met. Id. Specifically, it must be shown that the blood
test was ordered in the regular course of providing emergency medical treatment
and not at the request of law enforcement authorities and that the test was performed
by the laboratory routinely used by the hospital. The trial court concluded these
requirements had been met and admitted the results of defendant’s blood alcohol
test as a business record exception to the hearsay rule. The results were published
to the jury.
¶ 11 Defendant testified in his own defense. Defendant admitted that he had been
drinking on the night of March 13, 2016, but maintained that he had not been
driving his grandmother’s car when it crashed. According to defendant, another
individual who he knew only as “T” had been driving. Defendant was unable to
provide any further information about this person, other than that he was a “short
guy” with dark hair and a beard who had shown up at his grandmother’s garage
earlier in the day with defendant’s friends. Defendant stated that his friends knew
-4-
nothing about “T” either as they had simply encountered him when walking around
town and had brought him to the garage. Defendant also could not remember what
had happened to “T” after the crash.
¶ 12 The jury found defendant guilty on all three charged counts. The trial court
merged defendant’s conviction for aggravated DUI with a blood alcohol
concentration of 0.08 or greater into his conviction for aggravated driving under the
influence of alcohol. The court then entered judgments of conviction for aggravated
driving under the influence of alcohol and aggravated driving with a revoked
license and sentenced defendant to concurrent prison terms of nine and three years.
Defendant appealed.
¶ 13 On appeal, defendant argued, in part, that his aggravated DUI conviction should
be reversed because the results of the hospital blood test were improperly admitted
into evidence under section 11-501.4(a) of the Vehicle Code. In support, defendant
pointed to Illinois Rule of Evidence 803(6) (eff. Apr. 26, 2012). This rule sets forth
a hearsay exception for records of “regularly conducted business activity”
(commonly referred to as the business records exception to hearsay) but expressly
excludes “in criminal cases medical records.” Id. According to defendant, the plain
language of Illinois Rule of Evidence 803(6) conflicts with section 11-501.4(a).
Further, defendant noted that, when a statute conflicts with a rule of evidence
promulgated by this court, the supreme court rule prevails. Ill. R. Evid. 101 (eff.
Jan. 1, 2011) (“A statutory rule of evidence is effective unless in conflict with a rule
or a decision of the Illinois Supreme Court.”); People v. Walker, 119 Ill. 2d 465,
475 (1988) (“where *** a legislative enactment directly and irreconcilably conflicts
with a rule of this court on a matter within the court’s authority, the rule will
prevail”). Accordingly, defendant maintained that the results of his chemical blood
test were erroneously admitted and his aggravated DUI conviction should be
reversed.
¶ 14 Over a dissent, a majority of the appellate court affirmed. 2020 IL App (3d)
170163. In so ruling, the appellate court rejected defendant’s contention that section
11-501.4(a) conflicts with Illinois Rule of Evidence 803(6). Id. ¶ 44. The appellate
court, citing People v. Hutchison, 2013 IL App (1st) 102332, ¶¶ 18, 24, noted that,
according to the committee comments that accompany the Illinois Rules of
Evidence, the rules were not intended to abrogate or supersede any statutory rule of
-5-
evidence that existed at the time the rules were adopted. 2020 IL App (3d) 170163,
¶ 40. Further, there was no question that, when the rules were adopted, section 11-
501.4(a) was in effect. On this basis, the appellate court concluded that the rule and
the statute are not in conflict. Id. ¶ 44.
¶ 15 This appeal followed. Ill. S. Ct. R. 315 (eff. July 1, 2018).
¶ 16 ANALYSIS
¶ 17 Illinois Rule of Evidence 803(6) and Section 11-501.4(a)
¶ 18 Defendant’s sole contention on appeal is that there is a conflict between Illinois
Rule of Evidence 803(6) and section 11-501.4(a) of the Vehicle Code. To address
this contention, we must examine the language of both provisions.
¶ 19 The same principles of interpretation govern both statutes and the rules of this
court. People v. Gorss, 2022 IL 126464, ¶ 10. Our goal is to ascertain and give
effect to the intention of the drafters. Id. The most reliable indicator of that intent
is the language used, which should be given its plain and ordinary meaning. Id.Where the language is clear and unambiguous, we must apply the language used
without further aids of construction. Id. The interpretation of both a statute and a
supreme court rule are questions of law that we review de novo. Id.¶ 20 Section 11-501.4(a) of the Vehicle Code provides:
Ҥ 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
-6-
ordinance, or in prosecutions for reckless homicide brought under the
Criminal Code of 1961 or the Criminal 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 individual’s blood, other
bodily substance, or urine were performed by the laboratory routinely
used by the hospital; and
(3) results of chemical tests performed upon an individual’s blood,
other bodily substance, or urine are admissible into evidence regardless
of the time that the records were prepared.” (Emphasis added.) 625
ILCS 5/11-501.4(a) (West 2016).
¶ 21 Illinois Rule of Evidence 803(6) (eff. Apr. 26, 2012) provides:
“RULE 803.
HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT
IMMATERIAL
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
***
(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),
-7-
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.)
¶ 22 The language of both section 11-501.4(a) and Illinois Rule of Evidence 803(6)
is clear and unambiguous. Section 11-501.4(a) of the Vehicle Code authorizes the
admission of the results of chemical tests of blood—a type of medical record—as
a “business record exception to the hearsay rule” in DUI cases. Illinois Rule of
Evidence 803(6), on the other hand, expressly excludes medical records from the
business records hearsay exception in criminal cases. Each provision, by its plain
language, directs different action; Illinois Rule of Evidence 803(6) prohibits what
section 11-501.4(a) allows. The statute and the rule are thus in direct conflict.
¶ 23 The State, however, contends there is no conflict between the two provisions
and, in support, points to the committee comments to the Illinois Rules of Evidence.
The State notes that these comments, which were accepted by this court (Ill. S. Ct.,
M.R. 24138 (adopted Sept. 27, 2010)), concluded “[t]here [wa]s no current
statutory rule of evidence that [wa]s in conflict with a rule contained in the Illinois
Rules of Evidence,” with a possible exception not at issue here. Ill. R. Evid. 101,
Committee Comments (adopted Sept. 27, 2010). Further, the comments noted that,
although the Illinois Rules of Evidence did not codify every statutory rule of
evidence, they “[we]re not intended to abrogate or supersede any current statutory
rules of evidence” and were intentionally drafted “to avoid in all instances affecting
the validity of any existing statutes promulgated by the Illinois legislature.” Ill. Rs.
Evid. Committee Commentary (adopted Sept. 27, 2010). From this, the State
contends that “[b]ecause the Court intended that the Illinois Rules of Evidence
(‘Rules’) not invalidate any existing and otherwise valid statutory rules of evidence,
Rule 803(6) therefore did not invalidate section 11-501.4” when it codified the
business record hearsay exception. We disagree.
¶ 24 The State’s reasoning is backwards. The meaning of a rule or statute is
determined first by examining the language of the provision itself, not extratextual
sources. See, e.g., Gorss, 2022 IL 126464, ¶ 10. If, as is the case here, the language
-8-
of the provision is clear and unambiguous, it must be given effect as written,
without resorting to further aids of construction or reference to materials outside
the text. Id. Accepting the State’s position would require us to reject this
fundamental proposition and instead hold that a statement of intent that exists
outside the text of a rule takes precedence over the plain language of the rule itself.
We cannot do this. In this case, the committee comments to the Illinois Rules of
Evidence do not eliminate the conflict between the plain language of section 11-
501.4(a) and Illinois Rule of Evidence 803(6).
¶ 25 The State argues, in the alternative, that even if the plain terms of Illinois Rule
of Evidence 803(6) and section 11-501.4(a) require different outcomes in the
admission of blood tests, there is nevertheless no conflict between the two
provisions because they govern the admission of evidence on fundamentally
different bases. The State explains that “the fact that evidence is admissible under
one exception and not another simply proves that the exceptions are different, not
that they conflict.” According to the State, that is the situation presented here, with
Illinois Rule of Evidence 803(6) embodying the business records exception to the
hearsay rule and section 11-501.4(a) embodying a distinct “emergency room”
exception. We reject this contention.
¶ 26 The business records hearsay exception codified in Illinois Rule of Evidence
803(6) is premised on the notion that records, made in the regular course of an
organization’s activities and relied upon by the organization itself in its own affairs,
are likely to be accurate and, therefore, sufficiently trustworthy for use in court.
Simply stated, “businesses are motivated to keep records accurately and are
unlikely to falsify records upon which they depend.” City of Chicago v. Old Colony
Partners, 364 Ill. App. 3d 806, 819 (2006); see also, e.g., People v. Peterson, 150
Ill. App. 3d 782, 786 (1986) (“The rationale for the business-records exception is
that in carrying on the proper transactions of business, business records are useless
unless accurate, making the motive to follow a routine of accuracy great while
making the motive to falsify nonexistent.”); Birch v. Township of Drummer, 139
Ill. App. 3d 397, 406 (1985) (“The rationale for the rule rests on the notion that in
carrying on the proper transaction of business, such records are useless unless
accurate.”); People v. Wells, 80 Ill. App. 2d 187, 193 (1967).
-9-
¶ 27 This same rationale underlies section 11-501.4(a). Doctors, nurses, and other
medical personnel routinely rely on the results of chemical blood tests generated in
the emergency room in making life and death decisions. The results of these tests
are useless unless accurate, are unlikely to be falsified and, therefore, are deemed
sufficiently trustworthy for use in courts. Both section 11-501.4(a) and Illinois Rule
of Evidence 803(6) codify a form of the business records hearsay exception. Indeed,
the legislature itself has recognized this fact, stating in section 11-501.4(a) that the
blood test results are admissible “as a business record exception to the hearsay
rule.” 615 ILCS 5/11-501.4(a) (West 2016). We find no basis for rejecting the
legislature’s own characterization of the statute.
¶ 28 Section 11-501.4(a) includes chemical blood tests, a type of medical record,
within the business records hearsay exception, while Illinois Rule of Evidence
803(6) excludes medical records from the exception. It is not possible to give effect
to both provisions at the same time. The statute and the rule are, therefore, in
conflict.
¶ 29 Amendment of Illinois Rule of Evidence 803(6)
¶ 30 The interests of maintaining a sound and uniform body of law compel us to
resolve the conflict between Illinois Rule of Evidence 803(6) and section 11-
501.4(a) by amending the rule. Some background information will help explain the
basis for this conclusion.
¶ 31 Historically, both federal and state courts were divided as to whether medical
records fell within the business records exception to the hearsay rule, with the
disagreement centered specifically on the admission of medical opinions and
diagnoses. See generally Thomas v. Hogan, 308 F.2d 355, 358 (4th Cir. 1962); Fed.
R. Evid. 803(6), Advisory Committee Notes; 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). One line of authority held
that medical diagnoses and opinions require expert interpretation and, therefore, it
would be inappropriate to admit such records into evidence without first requiring
expert witness testimony and providing an opportunity for cross examination.
Thomas, 308 F.2d at 360. A second line of authority, however, held that medical
opinions and diagnoses are analytically indistinguishable from other recorded facts
- 10 -
and, therefore, the presence of a diagnosis or opinion within a medical report should
not be a reason to exclude the report as hearsay. See, e.g., Long v. United States, 59
F.2d 602, 603 (4th Cir. 1932) (“The diagnosis is the opinion of a scientific expert
who has examined the insured, heard his statements, and observed his symptoms.
It approximates a statement of fact, being in reality what the physician observes
when he views the insured with the trained eye of an expert.”); Beech Aircraft Corp.
v. Rainey, 488 U.S. 153, 168 (1988) (noting the difficulty of drawing a line between
“fact” and “opinion”).
¶ 32 This court adopted the first line of reasoning in 1922 in Wright v. Upson, 303
Ill. 120, 144 (1922). In Wright, this court held that, for a hospital record containing
opinions or diagnoses of a patient’s condition to be admissible, the persons who
entered those opinions or diagnoses in the record would have to testify that the
entries were correct. Id. Following Wright, Illinois courts continued to hold that
medical records were generally excluded from the business records hearsay
exception, and this was the common-law rule in Illinois for many years. See, e.g.,
Flynn v. Troesch, 373 Ill. 275, 282-83 (1940); People v. Giovanetti, 70 Ill. App. 3d
275, 288 (1979); Edward J. Kionka & James R. Williams, Survey of Illinois Law:
Evidence, 17 S. Ill. U. L.J. 873, 900 (1993).
¶ 33 In the 1960s, the Illinois common-law rule regarding medical records was
codified in two places. First, for criminal cases, the rule was codified in section
115-5 of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure)
(Ill. Rev. Stat. 1967, ch. 38, ¶ 115-5). Section 115-5 set forth the general business
records exception to the hearsay rule for criminal cases but also stated that no
writing or record shall become admissible as evidence if “[s]uch writing or record
has been made by anyone in the regular course of any form of hospital or medical
business.” Id. ¶ 115-5(c)(1). Medical opinions and diagnoses were not included
among the possible contents of records listed in the statute that could fall under the
hearsay exception. Id. ¶ 115-5(a). This statutory exclusion of medical records from
the business records exception to the hearsay rule remains the same today. See 725
ILCS 5/115-5(a), (c)(1) (West 2016).
¶ 34 Second, the business record hearsay exception was codified for civil cases in
1967 in Illinois Supreme Court Rule 236 (eff. Jan. 1, 1967) (see Ill. Rev. Stat. 1967,
ch. 110A, ¶ 236). As with section 115-5 of the Code of Criminal Procedure, Rule
- 11 -
236 expressly stated that it did “not apply to the introduction into evidence of
medical records.” Ill. S. Ct. R. 236(b) (eff. Jan. 1, 1967). The committee comments
to the rule explained this proviso by noting that, at the time, federal cases had “not
been in agreement” on the admissibility of medical records under the business
records exception and, therefore, the “Committee concluded that it was wise to
exclude such records from the coverage of the rule.” Ill. S. Ct. R. 236(b),
Committee Comments (adopted Jan. 1, 1967); see also Philip W. Tone, Comments
on the New Illinois Supreme Court Rules, 48 Chi. B. Rec. 46, 51 (1967); Kionka &
Willams, supra, at 900-01.
¶ 35 Thus, by the end of the 1960s, Illinois law recognized the business records
exception to hearsay for criminal cases under section 115-5 of the Code of Criminal
Procedure and for civil cases under Rule 236. Medical records were excluded from
the business records exception under both provisions.
¶ 36 This situation began to change, however, with the enactment of the Federal
Rules of Evidence in 1975. Federal Rule of Evidence 803(6) resolved the question
of whether medical records fall within the business records exception as a matter
of federal law by including them in the rule and expressly using the terms
“opinions” and “diagnoses” in describing the contents of records that may fall under
the hearsay exception. See Fed. R. Evid. 803(6), Advisory Committee Notes (in
order to make clear that medical records fall under the business records exception,
“the rule specifically includes both diagnoses and opinions, in addition to acts,
events, and conditions, as proper subjects of admissible entries”). Thus, following
the adoption of the Federal Rules of Evidence, there was no longer any dispute that,
as a matter of federal law, medical records were included within the business
records hearsay exception to the hearsay rule, both for criminal and civil cases. See
generally 2 Kenneth S. Broun et al., McCormick on Evidence § 293 (8th ed. Jan.
2020 Update) (“Given that Federal Rule 803(6) specifically includes opinions or
diagnoses, this historical distinction based on whether the opinion is objective or
conjectural does not appear to survive.”).
¶ 37 Following the adoption of Federal Rule of Evidence 803(6), the law in Illinois
began to evolve. In 1988, the legislature enacted section 11-501.4 of the Vehicle
Code (see Pub. Act 85-992, § 1 (eff. Jan. 5, 1988)), the provision at issue in this
case, thereby allowing the admission of chemical blood tests under the business
- 12 -
records exception. This action was consistent with the proposition that medical
records fall within the business records exception.
¶ 38 Thereafter, in 1991, this court amended Rule 236 to include medical records
within the business records exception in civil matters. Troyan v. Reyes, 367 Ill. App.
3d 729, 733 (2006); Kionka & Willams, supra, at 902 (noting that, by amending
the “antiquated rule,” Illinois had “joined the other states that consider medical
records an exception to the hearsay rule under the business records exception” and
had “finally come in step with the modern view”). This amendment to Rule 236
was not surprising. As one author has explained:
“The rationale for excluding medical records from the business record
exception [under Rule 236] was based on the federal courts’ previous
disagreement over their treatment. [Federal] Rule [of Evidence] 803(6),
however, settled that disagreement and specifically included medical records in
the business records exception. The drafters of federal rule 803(6) recognized
that medical records were particularly trustworthy, and included the words
‘diagnoses’ and ‘opinions’ within the rule to clarify the intent to include
medical records. Because the federal rules are no longer unsettled, the original
reason for excluding medical records from the Illinois business records
exception to the hearsay rules is no longer valid.” Sheridan, supra, at 603.
See also Kionka & Willams, supra, at 901-02; Troyan, 367 Ill. App. 3d at 734
(holding that Rule 236 permitted the admission of diagnoses and opinions
contained in medical records). Thus, by the end of the 1990s and into the early
2000s, the following rules were in place in Illinois: (1) in section 115-5 of the Code
of Criminal Procedure a general statutory provision establishing the business
records exception to the hearsay rule for criminal cases that excluded medical
records, (2) in section 11-501.4(a) of the Vehicle Code an exception to section 115-
5 allowing for the admission of chemical blood tests under the business records
exception, and (3) under Rule 236 a different rule for civil cases that included
medical records within the business records exception.
¶ 39 In 2010, this court adopted the Illinois Rules of Evidence, including Rule
803(6). Like the parallel federal rule, our Rule 803(6) applies to both criminal and
civil matters. Moreover, like Federal Rule of Evidence 803(6), Illinois Rule of
Evidence 803(6) expressly states that the records that fall under this exception
- 13 -
include “[a] memorandum, report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses.” (Emphasis added.) Ill. R. Evid. 803(6)
(eff. Apr. 26, 2012). Yet, unlike the federal rule, our Rule 803(6) also excludes
medical records from the business records exception in criminal cases. Thus, as of
today in Illinois, civil cases continue to be governed under Illinois Rule of Evidence
803(6) by the principle that medical records fall within the business records
exception to the hearsay rule. In criminal matters, however, medical records do not
fall within the exception, even though Illinois Rule of Evidence 803(6) expressly
recognizes that opinions and diagnoses do fall within the exception. Further, section
11-501.4(a) of the Vehicle Code allows for the admission of chemical blood tests
under the business records exception, but this provision conflicts with the blanket
exclusion of medical records from the exception under Illinois Rule of Evidence
803(6).
¶ 40 The current state of Illinois Rule of Evidence 803(6) calls for amendment.
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. This is such a case. As the foregoing discussion
makes clear, Illinois Rule of Evidence 803(6) contains serious inconsistencies and
contradictions. These inconsistencies, as well as the conflict between the rule and
section 11-501.4(a) of the Vehicle Code, can be resolved by amending Illinois Rule
of Evidence 803(6) and eliminating the medical records exclusion contained within
the rule.
¶ 41 The need for this amendment is apparent. When this court adopted Illinois Rule
of Evidence 803(6), the only reason medical records were excluded from the
business records exception in criminal cases was the existence of section 115-
5(c)(1) of the Code of Criminal Procedure and the desire to not supersede or
invalidate any existing statutory rules of evidence. However, section 115-5(c)(1)
was itself a codification of a common-law rule—the exclusion of medical opinions
and diagnoses from the business records exception—that this court expressly
rejected in the new Illinois Rule of Evidence 803(6). When this court adopted the
new rule and determined that opinions and diagnoses were properly within the
business records exception, the rationale for excluding medical records from the
hearsay exception was eliminated. Thus, in its current form Illinois Rule of
- 14 -
Evidence 803(6) is internally contradictory. On the one hand, the rule excludes
medical records from the hearsay exception in criminal cases because of a concern
regarding the admissibility of medical opinions and diagnoses. On the other hand,
the rule expressly recognizes that diagnoses and opinions are admissible under the
rule.
¶ 42 Further, we can discern no basis for excluding medical records from the
business records exception in criminal cases but not in civil ones, as Illinois Rule
of Evidence 803(6) currently requires. Different burdens of proof may apply in
criminal and civil cases, and there may be constitutional limits to the admission of
evidence in criminal cases that are not present in civil matters. However, the
trustworthiness of a recorded document does not change depending on whether the
document is used in a civil matter or a criminal one. It therefore makes little sense
to retain the distinction found in Illinois Rule of Evidence 803(6) wherein medical
records come within the business records exception in civil cases but not in
criminal.
¶ 43 We conclude that the medical records exclusion for criminal cases found in
Illinois Rule of Evidence 803(6) is not logically defensible. As Professor Michael
Graham has observed:
“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 Handbook of Illinois Evidence § 803.6,
Commentary, at 1069-70 (2019 ed.).
- 15 -
Illinois Rule of Evidence 803(6) should therefore be amended by striking the
medical records exclusion for criminal cases from the rule.
¶ 44 We recognize that striking this exclusion from Illinois Rule of Evidence 803(6)
creates a conflict with section 115-5(c)(1) of the Code of Criminal Procedure.
Nevertheless, the amendment is appropriate. Section 115-5(c)(1) was a codification
of a common-law rule first adopted by this court, but the rationale behind that rule
no longer exists, having been abandoned by this court with the adoption of Illinois
Rule of Evidence 803(6) and the recognition that medical opinions and diagnoses
fall within the business records exception. Moreover, the legislature itself has
retreated from the medical records exclusion for criminal cases in section 115-
5(c)(1) by adopting the chemical blood test exception in section 11-501.4(a) of the
Vehicle Code. Most importantly, we have an obligation to maintain the Illinois
Rules of Evidence in a coherent way, regardless of the actions of the legislature
(see Ill. R. Evid. 101 (eff. Jan. 1, 2011)), and Illinois Rule of Evidence 803(6)
cannot be left in its present form.
¶ 45 For the foregoing reasons, Illinois Rule of Evidence 803(6) is amended
effective immediately by removing the medical records exclusion for criminal
cases. In the current version of Illinois Rule of Evidence 803(6), this is the first
clause of the rule, which reads, “Except for medical records in criminal cases.” See
Ill. R. Evid. 803(6) (eff. Sept. 28, 2018). This amendment is applicable to all
pending cases, including the case at bar. To the extent that amended Illinois Rule
of Evidence 803(6) conflicts with section 155-5(c)(1) of the Code of Criminal
Procedure, the rule takes precedence. Ill. R. Evid. 101 (eff. Jan. 1, 2011).
¶ 46 Applying amended Illinois Rule of Evidence 803(6) to this appeal answers in
the negative defendant’s contention that his chemical blood tests were erroneously
admitted. We note that applying the amended rule to conduct in this case that
occurred before the amendment took effect does not raise any ex post facto
concerns. As the United States Supreme Court has explained, “[o]rdinary rules of
evidence *** do not violate the [Ex Post Facto] Clause” because “by simply
permitting evidence to be admitted at trial, [the rules] do not at all subvert the
presumption of innocence, because they do not concern whether the admissible
evidence is sufficient to overcome the presumption.” Carmell v. Texas, 529 U.S.
513, 533 n.23 (2000). “The issue of the admissibility of evidence is simply different
- 16 -
from the question whether the properly admitted evidence is sufficient to convict
the defendant. Evidence admissibility rules do not go to the general issue of guilt,
nor to whether a conviction, as a matter of law, may be sustained.” Id. at 546. In
short, there is a distinction between laws that “ ‘alter the degree, or lessen the
amount or measure, of the proof’ required to convict from those laws that merely
respect what kind of evidence may be introduced at trial.” Id. at 550 (quoting Hopt
v. Utah, 110 U.S. 574, 589 (1884)).
¶ 47 Amended Illinois Rule of Evidence 803(6) does not alter the amount of
evidence necessary to convict defendant. Rather, the amended rule merely allows
for the admission of medical records evidence that was previously excluded under
the business records exception. The amended rule is “evenhanded, in the sense that
[it] may benefit either the State or the defendant in any given case.” Id. at 533 n.23.
Because amended Illinois Rule of Evidence 803(6) addresses only what type of
evidence can be admitted, it does not raise ex post facto concerns. See also Lambert
v. Coonrod, 2012 IL App (4th) 110518, ¶ 22 (holding that the then-recently adopted
Illinois Rules of Evidence applied retroactively).
¶ 48 CONCLUSION
¶ 49 For the foregoing reasons, the judgment of the appellate court, which affirmed
the judgment of the circuit court, is affirmed.
¶ 50 Judgments affirmed.
¶ 51 JUSTICE CARTER took no part in the consideration or decision of this case.
- 17 -