Rule 411. Applicability of Discovery Rules

Rule 411. Applicability of Discovery Rules

These rules shall be applied in all criminal cases wherein the accused is charged with a felony,

and all juvenile delinquency cases wherein the accused is charged with an offense that would be a

felony if committed by an adult. They shall become applicable following indictment or information

or petition for adjudication of wardship and shall not be operative prior to or in the course of any

preliminary hearing.

Effective October 1, 1971; amended March 1, 2001, effective immediately, except when in the opinion

of the trial, Appellate, or Supreme Court the application of the amended provisions in a particular case

pending at the time the amendment becomes effective would not be feasible or would work an injustice,

in which case former procedures would apply; amended December 9, 2011, effective immediately.

Committee Comments

Special Supreme Court Committee on Capital Cases

March 1, 2001

Rule 411, as amended, makes criminal discovery rules applicable to the sentencing hearing in

a capital case. A capital sentencing hearing is a unique and complex proceeding, which often takes

place immediately following trial on the merits. Allowing pretrial discovery for capital sentencing

will assist counsel in preparing for this critical stage of a capital trial and prevent delay and

disruption of the sentencing hearing. See also Rule 416(c) (pretrial notice of aggravating factors

the State will rely upon in sentencing).

The amendment to Rule 411 does not create new forms of discovery. Instead, the amendment

extends the application of existing discovery methods to capital sentencing hearings. The

committee notes that any discovery rule that requires disclosure by the defense is subject to

constitutional limitations and limitations based on attorney-client or other privilege

the State will rely upon in sentencing).

The amendment to Rule 411 does not create new forms of discovery. Instead, the amendment

extends the application of existing discovery methods to capital sentencing hearings. The

committee notes that any discovery rule that requires disclosure by the defense is subject to

constitutional limitations and limitations based on attorney-client or other privilege. Existing

discovery rules expressly mention constitutional limitations on defense disclosures (see, e.g., Rule

413) and provide that attorney work product is not subject to disclosure by the State or the defense

(Rule 412(j)).

The committee found that the existing discovery rules and associated case law would

adequately address constitutional and privilege-based objections to pretrial disclosure of

sentencing information by the defense. However, constitutional and privilege-based limitations on

discovery do not preclude the possibility that pretrial disclosure of defense sentencing information

could directly or indirectly aid the State’s case on the merits. The extension of discovery

procedures to capital sentencing is not intended to provide such an advantage to the State.

In the event the defense objects to disclosure of specific sentencing information on the ground

that disclosure would harm the defense case on the merits, the trial court should take any action

necessary to prevent that harm. Options available to the trial court include excision of

objectionable material pursuant to Rule 415(e) and the use of protective orders to defer disclosure

or restrict the use of information disclosed (Rule 415(d)). In camera review of a claim of potential

harm from disclosure of sentencing information (Rule 415(f)) may be appropriate to prevent

disclosure of defense theories or strategy, or where the identity of a defense sentencing witness is

unknown to the State.

material pursuant to Rule 415(e) and the use of protective orders to defer disclosure

or restrict the use of information disclosed (Rule 415(d)). In camera review of a claim of potential

harm from disclosure of sentencing information (Rule 415(f)) may be appropriate to prevent

disclosure of defense theories or strategy, or where the identity of a defense sentencing witness is

unknown to the State.

Committee Comments

To avoid confusion, the committee rejected the ABA standard which called for the application

of discovery rules in “all serious criminal cases.” No such standard exists in Illinois, and the

application of the discovery rules is extended to all offenses carrying a possible penalty of

penitentiary imprisonment. The use of the extensive discovery procedures prescribed in these rules

at preliminary stages of the criminal trial would serve no valid purpose, and their use is confined

to post-indictment procedures. The committee considered but unanimously declined to make the

rules applicable in juvenile court proceedings since the nature of such proceedings generally does

not require discovery rules. However, if such proceedings become more adversary in nature, it

may be desirable or necessary to apply the rules to them at some future date. In any event, the

requirements of In re Gault (1967), 387 U.S. 1, must be met.

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