In an Illinois divorce trial, each party will describe the nature of their assets and debts, their incomes and their relationship with their children. The judge will then weigh each party’s credibility in order to equitably divide the parties assets and debts, award maintenance and/or child support and make determinations regarding parenting time and parental responsibilities.
In order to bolster a party’s credibility with the judge, it helps to introduce documents which corroborate that party’s testimony. Whether it is a bank statement, a paystub or a report card that document is communicating something and is, therefore, likely to be hearsay.
“”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
All documents are “statements that are not made by the declarant while testifying at trial or hearing.” Therefore, all documents are hearsay.
To get this evidence entered and considered by a divorce judge, you will need to find whoever wrote or made the document and have that person testify as to what the document says.
Or, you could rely on one of the exceptions to the hearsay rule.
The most common exception to the hearsay rule is the “business records exception.”
The business records exception recognizes that most documents are not really statements but, rather, just the regularly noted activity that a business records in that business’s regular course of business. The regularity and uniformity of the business records lets the court know that the records are inherently reliable and, thus, do not require additional testimony in order to authenticate them.
“[T]he accuracy of the record is presumed (for how could an inaccurate business record be of any value to the business that produced it?)” Kimble v. Earle M. Jorgenson Co., 358 Ill. App. 3d 400, 414 (Ill. App. Ct. 2005)
“Except for medical records in criminal cases, 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)” Ill. R. Evid. 803(6)
Furthermore, the Illinois Supreme Court Rules state that business records, if they qualify as such, “shall be admissible as evidence.”
“Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility. The term “business,” as used in this rule, includes business, profession, occupation, and calling of every kind.” Ill. Sup. Ct. R. 236
“The business records exception to the rule against hearsay is premised on the recognition that records of an act, occurrence, or event that are routinely made at the time of the occurrence, or within a reasonable time thereafter, are normally sufficiently reliable to be admissible in evidence despite their hearsay character.” People v. Tsombanidis, 601 NE 2d 1124 – Ill: Appellate Court, 1st Dist., 4th Div. 1992
The business records automatically are admitted into evidence if a person can testify that they are kept “in the regular course of business.”
“Under th[e business records exception] rule, once the custodian of the records has testified as to the manner in which the records were kept, that they were kept in the regular course of business, and that it was part of the business to keep such records, the function of the custodian at the trial is completed. The records themselves should be introduced rather than the custodian giving his summation of them.” Smith v. Williams, 34 Ill. App. 3d 677, 680 (Ill. App. Ct. 1975)
“In order to fulfill the foundational requirements of a business record, it is not necessary that the author or creator of the record testify or be cross-examined about the contents of the record. The circumstantial probability of their trustworthiness is a practical substitute for cross-examination of the individual making the entries. A custodian or any person familiar with the business and its mode of operation may provide testimony establishing the foundational requirements of a business record. That the author of a record does not testify affects only the weight, not the admissibility, of the record….Once a witness has established the foundational requirements of a business record, the records themselves should be introduced. Business records should only be barred from admission if they are irrelevant;, prejudicial or for some other legally appropriate reason” Troyan v. Reyes, 367 Ill. App. 3d 729, 733 (Ill. App. Ct. 2006) (citations and quotations omitted)
Once admitted into evidence, a business record can still be besmirched because of its lack of an actual person testifying to its creation and, thus, veracity, “Rule 236 expressly provides that lack of personal knowledge by the maker may affect the weight of the evidence but not its admissibility.” Bank of Am., N.A. v. George M. Land, 372 Ill. Dec. 865, 869 (Ill. App. Ct. 2013)
The person who is actually testifying to the business records need not be the person who created the document. It can be anyone at the business who is familiar with similar documents.
“To establish a proper foundation for the admission of a business record, the author of the record need not testify or be shown to be unavailable. Anyone familiar with the business and its procedures may testify about how the business record was prepared.” In re V.T, 306 Ill. App. 3d 817, 820 (Ill. App. Ct. 1999)
In reality, you do not even need someone to testify to the fact that the proffered business records are “kept in the regular course of business.” A signed affidavit to that effect is sufficient pursuant to Rule 902.
“The original or a duplicate of a record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written certification of its custodian or other qualified person that the record(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of these matters;(B) was kept in the course of the regularly conducted activity; and(C) was made by the regularly conducted activity as a regular practice.
The word “certification” as used in this subsection means with respect to a domestic record, a written declaration under oath subject to the penalty of perjury and, with respect to a record maintained or located in a foreign country, a written declaration signed in a country which, if falsely made, would subject the maker to criminal penalty under the laws of the country. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and certification available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.” Ill. R. Evid. 902(11)
Conceptually, certification replaces foundation. Illinois Rules of Evidence “require a proponent of documentary evidence to lay a foundation for the introduction of that document into evidence, and evidence must be presented to demonstrate that the document is what its proponent claims it to be.” Koulogeorge v. Campbell, 2012 IL App (1st) 112812, ¶ 34
“The purpose of Rule 902(11) is to provide an alternative means of establishing a proper foundation for business records, without the need for a representative of the business to testify in
court.” People vs. Hauck, 2022 IL App (2d) 191111, ¶ 47
The certification of business records merely needs to accompany whatever document you are trying to admit into evidence.
Attached is an example of a business records certificate of authenticity:
BUSINESS RECORDS CERTIFICATE OF AUTHENTICITY
I, ___________________________________________________, am employed by ___________________________________________________________________________ ___________________________________________________________________________. (Name, address, phone number and email address of the business entity)
My official title is ____________________________________________. I am familiar with the type of documents and records received, created, and relied upon by _______________________________________________________ (name of business entity) in the ordinary course of its business. List Documents I further certify that: A) such records were made, at or near the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with knowledge of those matters; B) such records were kept in the course of a regularly conducted business activity: C) the business activity made such records as a regular practice; and D) if such record is not an original, such record is a duplicate of the original. I certify under penalty of perjury that the foregoing is true and correct.
______________________________________ _______________________
SIGNATURE DATE
The person providing the certification doesn’t need to have personal knowledge regarding the creation of the document. “[A]ll that is required is that the custodian of the records or someone familiar with the business and its mode of operation testify at trial as to the manner in which the record was prepared.” Preski v. Warchol Construction Co., 111 Ill. App. 3d 641 (1982)
Of course, even this is kind of a hassle. So, you should be prepared to ask your opposing counsel to stipulate to evidence that you’d otherwise have to authenticate with a certificate.
Your opposing counsel will, no doubt, have documents of their own that they wish to enter into evidence and would appreciate your stipulation as to those documents’ admissibility. So, mutually stipulating to each other’s inevitably entered documents is the best course of action for all parties.
The only way business records are NOT getting into evidence is if it can be proved that there is was some kind of motive on the part of the record keeper to falsify the records.
The purpose of business records “is to aid in the proper transaction of business and they are useless for that purpose unless accurate, motive for following a routine of accuracy is great and the motive for falsifying nonexistent.” People v. Reed (1982), 108 Ill.App.3d 984, 989, 64 Ill.Dec. 469, 473, 439 N.E.2d 1277, 1281.
Some documents might be used in a business…but that does not automatically make those documents business records.
“[I]tems (such as notes from a doctor) which are kept in a business file, but which were not made by the business entity to which the file belongs, are not part of a business record for the purpose of admission under the business records rule, for the rule applies to entries made by the business, not to items merely retained in its file.” Smith v. Williams, 34 Ill. App. 3d 677, 680 (Ill. App. Ct. 1975)
Unless the record keeper has some kind of intimate relationship with either spouse, it is difficult to imagine a biased or falsified record in an Illinois divorce.
Finally, if evidence is admitted or denied as a business record, do NOT expect an appeals court to think the trial court was in error.
“A reviewing court will not disturb a trial court’s decision regarding the admissibility of business records absent an abuse of discretion.” Southern Wine & Spirits of Illinois, Inc. v. Steiner, 2014 IL App (1st) 123435, ¶ 25.
To learn more about admitting evidence properly in an Illinois divorce trial or hearing, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Chicago divorce lawyer.
