Judicial Rulings                                                    

Changes in Illinois Supreme Court Rules 90, 91 and 93 should encourage compliance with the state's mandatory arbitration law (see Illinois Revised Statutes 1991, ch. 110, par. 2-1001a). The comments from the court on these changes say, "Prior to adoption of these sanctions, there were complaints that some parties and lawyers would merely attend but refuse to participate in arbitration."

Under the new rules the order to undergo arbitration has the same force as an order to appear for trial. Not only must parties or their attorneys appear, but they must "participate in the hearing in good faith and in a meaningful manner" to the satisfaction of the arbitration panel. Failure can result in a court order debarring the party from rejecting the panel's award and imposing costs for arbitration and petition for sanctions. The comments note, "Arbitration must not be perceived as just another hurdle to be crossed in getting the case to trial."

The order for the changes was entered April 7 and is effective June 1. According to the Chicago Daily Law Bulletin it was cited by some who counsel caution on pending legislation that would raise the limit on arbitration cases from $15,000 to $50,000.

Current statutes and case law have led the Illinois Supreme Court to abrogate the 70-year-old "material witness rule." Stated in dicta in a 1922 case, the rule had been strictly applied by Illinois courts, even though it came in for increasing criticism.

The rule had applied when the voluntariness of a confession was questioned and required the state to call all material witnesses to the making of the confession. A confession could not be admitted until the "State has examined every police officer and everyone present at [the defendant's] examination ... ." (People v Rogers 303 Ill. 578 (1922)). In the intervening years decisions and court discovery rules at the federal and state level as well as state statutes have provided safeguards against self-incrimination. Now the prosecution must provide the defense with a list of all material witnesses to a confession, the substance of all oral and written statements by the defendant known to the state and the names and addresses of all potential state witnesses, together with any of their written or recorded statements. Violation of Miranda rights can invalidate defendants' statements. Defendants who claim that confessions were coerced can obtain a pretrial hearing on admissibility under state statutes.

Justice Michael A. Bilandic wrote the April 15 opinion in People v RD and People v Blankenship (Docket Nos. 72268 and 72269 cons.); Justice Moses W. Harrison II did not participate.

In refusing to apply "Wharton's Rule," a legal doctrine originating in 1850 and recognized in Illinois since 1940, the Illinois Supreme Court clarified the status of the rule. This was necessary because "there is some issue ... as to whether the Rule survived the 1961 revision of the Criminal Code."

The rule applies to charges of conspiracy, about which the court said, "In making conspiracy to commit an act a discrete crime, legislatures seek to avert dangers posed to society at large from concerted criminal conduct." The rule creates an exception. According to the court, "As generally stated, the Rule prohibits prosecution of a conspiracy to commit a particular crime when the commission of that crime requires the participation of more than one person." The intention is to avoid double jeopardy for such classic examples as dueling, bigamy or incest, to which "Commentators have added ... the crimes of pandering, gambling ..." etc.

The court interpreted: "The Rule does not prohibit prosecution of a conspiracy simply because the substantive crime involves the participation of two or more actors. It prohibits only such prosecution when the cooperative conduct inherent in the substantive crime is indistinguishable from the element of agreement in the alleged conspiracy." Crimes covered by the rule exhibit "a general congruence of the elemental agreement among the criminal actors and the completed substantive offense."

Further, there is a "third-party exception": "The prevailing view is that Wharton's Rule should not bar the prosecution of any conspiracy in which the number of conspirators exceeds the essential participants in the substantive crime."

Thus Justice Charles E. Freeman's April 15 opinion in People v Laws (Docket No. 73306) is not an application of Wharton's Rule, but a clarification necessary to excluding the case from its application. Justices Michael A. Bilandic and Moses W. Harrison II did not participate.

F. Mark Siebert

34/June 1993 /Illinois Issues