Posted by Post Authored By: Elaina Stevens
Rebuttal evidence is often necessary for attorneys to have a fair shot at arguing their
case. It may come in the form of evidence not initially presented or through a witness who was
not initially disclosed, but is needed to refute the testimony of another witness. However, the
ability to offer rebuttal evidence is not a right, as there are limited circumstances in which it can
be admitted.
When is rebuttal evidence admissible?
Rebuttal evidence may be used contradict evidence on material issues, but not collateral
or immaterial matters. (1) It is admissible if it explains, repels, contradicts, or disproves evidence
of a witness. (2) If a defendant presents an affirmative matter in its case in chief to support its
defense, the plaintiff has a right to introduce evidence in rebuttal. (3) Whether rebuttal evidence
is to be admitted or excluded is left to the discretion of the trial court. (4) “An abuse of discretion
is likely to occur only when a party is prevented from impeaching witnesses, supporting the
credibility of impeached witnesses, or responding to new points raised by the opponent.” (5)
As such, in order to be admissible, rebuttal evidence must in fact be contradictory to
already presented evidence. It is not simply another chance to introduce evidence that could
have been introduced in a plaintiff’s case-in-chief. (6) Likewise, such contradiction cannot be
based on a collateral issue. Matters are collateral if they are not relevant to a material issue of
the case. (7) The test to be applied in determining if a matter is collateral is whether the matter
could be introduced for any purpose other than to contradict. (8) In People v. McGhee, the
appellate court found that the prosecution’s rebuttal evidence was improperly admitted. (9) The
prosecution had offered rebuttal testimony regarding the defendants’ conduct in their lockup,
including the defendants’ sobriety. (10) In finding that such rebuttal was immaterial, the court
reasoned that the conduct was after the altercation for which the defendants were being tried,
and thus was collateral to the substantive issues of the trial. (11)
Further, appellate courts have held that it was error for the trial court to exclude
rebuttal evidence when a defendant presents affirmative evidence. (12) In Pellico, in finding error
in the trial court sustaining the defendants’ objection to plaintiff’s rebuttal, the court referred
to the rule in Loftus v. Loftus, stating:
Permitting a plaintiff to introduce evidence of an affirmative matter in rebuttal, where
such evidence might properly have been offered in chief, is largely discretionary with
the trial court, but 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. (13)
For example, in Lagestee, the appellate court held it was error for the trial court to
restrict the plaintiffs’ right to rebut the affirmative matters raised in the defendants’ witness’s
testimony. (14) This case involved a plaintiff who sustained injuries on the defendants’ premises. (15) The defendants’ witness’s testimony included allegations that the injured plaintiff had told her
what to say in a recorded statement about helping him when he was hurt. (16) The plaintiffs
requested permission to call two rebuttal witnesses who would rebut the testimony that she
had lied on the tape recording about assisting the plaintiff. (17)
The court reasoned that an affirmative matter was raised by the defendants in support
of their defense and therefore the plaintiffs were entitled to rebut the defendants’ evidence. (18)
Further, the court reasoned that the trial court’s failure to allow the rebuttal testimony
prejudiced 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. (19)
Accordingly, when seeking to offer rebuttal evidence, whether in civil or criminal cases,
lawyers must keep in mind such limitations in order to ensure that their rebuttal can
successfully be admitted.
1 People v. Jackson, 198. Ill. App. 3d 831, 851 (1st Dist. 1990) (internal citations omitted).
2 Chapman v. Hubbard Woods Motors, Inc., 351 Ill. App. 3d 99, 106 (1st Dist. 2004).
3 Id.
4 Jackson, 198 Ill. App. 3d at 851
5 Hoem v. Zia, 239 Ill. App. 3d 601, 618 (4 th Dist. 1992) (internal quotations omitted).
6 Naleway v. Agnich, 386 Ill. App. 3d 635, 649 (2d Dist. 2008).
7 People v. Santos, 211 Ill. 2d 395, 405 (internal quotations omitted).
8 Id. (internal quotations omitted).
9 People v. McGhee, 20 Ill. App. 3d 915, 923 (1st Dist. 1974).
10 Id.
11 Id.
12 See Pellico v. E.L. Ramm Co., 68 Ill. App. 2d 322, 328 (1st Dist. 1966); Lagestee v. Days Inn Mgmt. Co. 303 Ill. App.
3d 935 (1st Dist. 1999).
13 Pellico, 68. Ill. App. 3d at 328 (quoting Loftus v. Loftus, 134 Ill. App. 360, 362 (1907)).
14 Lagestee, 303 Ill. App. 3d at 943.
15 Id. at 936.
16 Id. at 940
17 Id.
18 Id. at 943
19 Id. at 943-44.
About the Author
Elaina Stevens is an associate attorney at David A. Axelrod & Associates. She graduated from
DePaul University College of Law in December 2022 where she was a part-time evening
student. She has worked full-time at David A. Axelrod & Associates since post-undergrad, when
she started at the firm as a receptionist, to becoming an associate attorney in May 2023. Elaina
focuses on personal injury and medical malpractice cases and is a member of CBA’s YLS Women
in Law and Torts Litigation committees.