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Posted on July 2, 2021

Best Evidence Rule In An Illinois Divorce

Presenting evidence in an Illinois divorce is complicated. You must establish foundation, authenticate the evidence and be sure the evidence doesn’t violate one of the numerous evidentiary rules. Even after all of that is done, your evidence must still be “the best” type of evidence possible for the finder of fact to inspect and weigh that evidence.

Best evidence means the original document is required if it is being referred to. Oral testimony about a document will not suffice as evidence under the Illinois Rules of Evidence. For example, a document that says a passport will be issued does not prove that a party has a valid passport. A copy of the valid passport is the best evidence in such a scenario.

“The original writing rule, which is often but inaccurately referred to as the best evidence rule, provides that in establishing the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent.” Lam v. Northern Illinois Gas Co., 449 NE 2d 1007 – Ill: Appellate Court, 1st Dist. 1983

“To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.” Rule 1002 – Requirement of Original, Ill. R. Evid. 1002

A writing or recording has a specific definition. “”Writings” and “recordings” consist of letters, words, sounds, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.” Rule 1001 – Definitions, Ill. R. Evid. 1001

Testimony about a writing’s content is really the only objectionable part, though. Testimony that merely describes the existence, creation or location of a document is admissible.

Just because a writing is superior to oral testimony as proof doesn’t mean that oral testimony that proves the same thing as a writing can’t be introduced. For example, oral testimony that “I paid for it” is sufficient and does not require a receipt to verify that the bill was, in fact, paid.

“There is no general rule that a party must produce the best evidence that the nature of the case permits. The best evidence rule does not apply where a party seeks to prove a fact which has an existence independent of any writing, even though the fact might have been reduced to, or is evidenced by, a writing” Jones v. Consolidation Coal Co., 528 NE 2d 33 – Ill: Appellate Court, 5th Dist. 1988

If anyone during an Illinois divorce hearing or trial refers to something that was written, that testimony should be objected to via “Objection! Best Evidence!” until the original document is offered for proof.

Duplicates And The Best Evidence Rule In An Illinois Divorce

A photocopy, a screenshot, a print or any duplicate whatsoever is a perfectly acceptable substitute for an original writing per the Illinois Rules of Evidence.

“A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” Rule 1003 – Admissibility of Duplicates, Ill. R. Evid. 1003

Public records are presumed to be accurate so any writing that qualifies as a public record does not require an original copy and duplicates of a public record are welcome in an Illinois court.

“The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy” Rule 1005 – Public Records, Ill. R. Evid. 1005

Entering Secondary Evidence Of A Writing In An Illinois Divorce

Sometimes, the original writing is no longer available. The original writing was destroyed, went missing or was never disclosed by the other party. In such a case, the party wishing to introduce evidence of a writing must prove to the court that there is no original writing and the absence of said original writing is not their fault.

“The original is not required and other evidence of the contents of a writing, recording, or photograph is admissible if-

(1)Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;

Or (2)Original Not Obtainable. No original can be obtained by any available judicial process or procedure;

or (3)Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing;

or (4)Collateral Matters. The writing, recording, or photograph is not closely related to a controlling issue.” Rule 1004 – Admissibility of Other Evidence of Contents, Ill. R. Evid. 1004

“To introduce secondary evidence of a writing, a party must first prove prior existence of the original, its loss, destruction or unavailability; authenticity of the substitute and his own diligence in attempting to procure the original.” Gillson v. GM & ORR CO., 246 NE 2d 269 – Ill: Supreme Court 1969

“To introduce secondary evidence of [a document], it [is] incumbent upon the [party introducing the evidence] to prove the prior existence of the original and also its unavailability.”  People v. Baptist, 389 NE 2d 1200 – Ill: Supreme Court 1979

“Whether there has been a sufficient foundation for the admission of secondary evidence of the contents of a writing is within the discretion of the trial court.” Zurich Ins. Co. v. Raymark Industries, Inc., 494 NE 2d 634 – Ill: Appellate Court, 1st Dist. 1986

The best evidence rule is about “what a document says.” If the document doesn’t say anything, the original document is not required to establish that fact. Someone who read the document can testify to what the document doesn’t say without violating the best evidence rule.

“The best evidence rule, however, does not apply to testimony that records have been examined and found not to contain any reference to a designated matter.” Leischner v. Deere & Co., 468 NE 2d 182 – Ill: Appellate Court, 4th Dist. 1984

Parol Evidence And Original Writings In An Illinois Divorce

During and after an Illinois divorce the parties may enter into agreements which govern their conduct vis-à-vis each other. If written properly, these agreements should speak for themselves and do not require additional testimony for the court to understand them.

The best evidence rule would suggest that the parties cannot discuss anything about the agreement and rather rely on the agreement, exclusively.

There is a parellel rule that prevents admission of evidence as to “what an agreement really means” called the “parol evidence rule.”

“The parol evidence rule generally precludes evidence of understandings not reflected in the contract, reached before or at the time of its execution, which would vary or modify its terms” WW VINCENT v. FIRST COLONY LIFE INS., 814 NE 2d 960 – Ill: Appellate Court, 1st Dist., 3rd Div. 2004

Any order before a final order in a divorce is essentially deleted upon entry of the Judgment of Dissolution of Marriage. A temporary order “terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed. 750 ILCS 5/501(d)(3)

Temporary orders from the past are not to be considered evidence related to the construction of the final orders. “A temporary order…does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding;” 750 ILCS 5/501(d)(1)

Just like the best evidence rule, the parol evidence rule has an exception.

“An exception to the parol evidence rule provides that extrinsic evidence of the parties’ intentions may be introduced to prove mutual mistake, conditional delivery, a lack of consideration or fraud.” O’BRIEN v. Cacciatore, 591 NE 2d 1384 – Ill: Appellate Court, 1st Dist., 5th Div. 1992

Testimony about an Illinois Marital Settlement Agreement, Allocation of Parenting Time and Parental Responsibilities, or other agreed orders may be taken if there is an issue of mistake or fraud.

Additionally, testimony may be taken regarding the formation of an agreement if the agreement is indecipherable. “[P]arol evidence is admissible under certain circumstances, as in the case of an ambiguous or incomplete contract.” Prentice v. UDC Advisory Services, Inc., 648 NE 2d 146 – Ill: Appellate Court, 1st Dist., 5th Div. 1995

“If it is silent in essential particulars, parol evidence is admissible to establish the missing parts, although inadmissible to contradict those unambiguous terms expressed in the document.” Spitz v. Brickhouse, 3 Ill. App.2d 536, 539, 540, 123 NE2d 117 (1st Dist 1954).

Agreements made AFTER the final orders are entered are NOT covered by the parole evidence rule or the best evidence rule and may be considered by courts whether they are oral or in writing.

Don’t waste too much time on preparing evidence of Post-divorce agreements. Out-of-court valid agreements are rare but “[equitable] estoppel could apply to such [post-divorce] agreements” In re Marriage of Jungkans, 847 NE 2d 141 – Ill: Appellate Court, 2nd Dist. 2006. In most Illinois divorce cases, “extrajudicial agreements modifying [agreements] are unenforceable” In re Marriage of Smith, 806 N.E.2d 727, 731 (Ill. App. Ct. 2004)

Business Records And Original Writings In An Illinois Divorce

Writings made in the regular course of business aren’t introduced with the same high standards as other forms of written evidence.

“The rationale underlying the admissibility of business records is the recognition that businesses are motivated to keep routinely accurate records and that they are unlikely to falsify records kept in the ordinary course of business and upon which they depend.” People v. Morrow, 628 NE 2d 550 – Ill: Appellate Court, 1st Dist., 2nd Div. 1993

Because business records are made so regularly, we can assume they’re accurate even if we don’t have the original document.

“The proponent of a business record who seeks its admission into evidence must lay an adequate foundation therefor, which includes: a showing that the record was made as a memorandum or record of the act; the record was made in the regular course of business; and that it was the regular course of the business to make such a record at the time of the act or within a reasonable time thereafter…Anyone familiar with the business and its procedures may testify as to business records, and the original entrant need not be a witness” People v. Morrow, 628 NE 2d 550 – Ill: Appellate Court, 1st Dist., 2nd Div. 1993

Refreshing A Witnesses Recollection With A Writing In An Illinois Divorce

People can’t be expected to remember everything. So, witnesses are allowed to refresh their memory with a written document should the questioning attorney get permission from the court. This “refreshing” written document need not be an original writing.

“The rule in this State is that a witness can testify only to such facts as are within his knowledge and recollection, but he is permitted to refresh and assist his memory by the use of a written instrument, memorandum or entry in a book, and it is not necessary that the writing should have been made by the witness himself or that it should have been an original writing, provided that after inspecting the record he can speak to the facts from his own recollection.” People v. Krauser, 315 Ill. 485, 508, 146 NE 593 (1925)

Hearsay And The Best Evidence Rule In An Illinois Divorce

“”Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801 – Definitions, Ill. R. Evid. 801

Any statement regarding a writing, original or not, if used to describe what the writing is saying will be hearsay.

So, even an original writing must be authenticated by its author or admitted into evidence under one of the many numerous hearsay exceptions.

Demonstrative Exhibits And The Best Evidence Rule In An Illinois Divorce

“Demonstrative evidence (a model, map, photograph, X-ray, etc.) is distinguished from real evidence in that it has no probative value in itself, but serves merely as a visual aid to the jury in comprehending the verbal testimony of a witness.” Smith v. Ohio Oil Co., 134 NE 2d 526 – Ill: Appellate Court, 4th Dist. 1956

As demonstrative evidence is not real evidence, the best evidence rule does not apply to demonstrative evidence.

Futhermore, a judge not a jury is the finder of fact in an Illinois divorce trial. The judge’s level of sophistication is probably such where a demonstrative exhibit would never be necessary to supplement real evidence in an Illinois divorce trial.

If the rules of evidence amuse or confound you, I love talking about them. Call me to discuss further intricacies of evidence and Illinois divorce law.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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