In the movies, there is always one piece of physical evidence that completely makes or ruins their criminal or civil case. In an Illinois divorce, a singular piece of physical evidence that has real impact on the rest of the case is rare.
A divorce is the unwinding of a years-long relationship, not the determination of what happened in an instant like a criminal or a personal injury case. No single document can possibly seal the fate of an Illinois divorce.
In a divorce, most evidence is testimony from witnesses describing what happened over that period of time. Exhibits are then authenticated and offered during testimony to corroborate what has been testified to.
“’To corroborate’ means to add weight or credibility to a thing by additional and confirming facts or evidence, and ‘corroborating evidence’ means evidence supplementary to that already given and tending to strengthen or confirm it.” In re AP, 688 NE 2d 642 – Ill: Supreme Court 1997
The point of an exhibit is two-fold, to corroborate the testimony, therefore making the testimony more likely true than not true AND to preserve the record for appeal.
If exhibits are introduced into evidence an appeals court can review those exhibits can confirm or deny that the trial court came to the proper conclusion based on “the manifest weight of the evidence”
“Where a trial court makes factual findings, this court reviews those factual findings under the manifest-weight-of-the-evidence standard.” In re Guardianship of KRJ, 942 NE 2d 598 – Ill: Appellate Court, 4th Dist. 2010
“An order is against the manifest weight of the evidence only when an opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary and not based on the evidence.” In re Vanessa K., 2011 IL App (3d) 100545 – Ill: Appellate Court, 3rd Dist. 2011
This is what makes entered exhibits so powerful. Exhibits make a factual finding by the court based on the entered exhibit practically unappealable.
When an exhibit is offered that is suspect, fake or a forgery, that exhibit poses a big problem for the other side. That exhibit must be challenged immediately or the exhibit be accepted as valid by the trial court.
The tactics for challenging a fake document in an Illinois divorce court depend on whether you have ever seen the document before.
If You Have Never Seen The Fake Document Before It Is Introduced In An Illinois Divorce Trial Or Hearing
At temporary hearings before the actual divorce trial, there is rarely a requirement that proposed exhibits be exchanged. In fact, only a fool would provide their exhibits to the opposing side in advance for inspection.
If an exhibit is presented by your opponent which you have never seen, first refer to the Notices To Produce that you have already tendered on your opponent. Should your opponent be attempting to introduce exhibits they had access to but did not tender after being properly requested to do so, that is a basis to object to the exhibit.
“If a party, or any person at the instance of or in collusion with a party, unreasonably fails to comply with [discovery, the court may impose sanctions including t]hat a witness be barred from testifying concerning that issue” Ill. Sup. Ct. R. 219(c)(iv)
“The factors a trial court is to use in determining what sanction, if any, to apply are: (1) the surprise to the adverse party; (2) the prejudicial effect of the proffered testimony or evidence; (3) the nature of the testimony or evidence; (4) the diligence of the adverse party in seeking discovery; (5) the timeliness of the adverse party’s objection to the testimony or evidence; and (6) the good faith of the party offering the testimony or evidence.” Shimanovsky v. General Motors Corp., 692 NE 2d 286 – Ill: Supreme Court 1998
Clearly a surprise exhibit is adverse and prejudicial. You don’t even need to determine whether the document is fake or not. The document should not come into evidence either way if the document is a surprise.
If you did not ask about the document in advance, the party trying to introduce the document can get the document into evidence if they properly authenticate the document. It will be difficult to stymie the authentication of a document only moments after your first time seeing the allegedly fake document.
If you later confirm that the document was not authentic, you can use that as a basis to vacate any order upon which could possibly have been based upon the document’s evidentiary weight at the time.
If You Have Seen The Fake Document In Advance Of Your Illinois Divorce Trial Or Hearing
If your discovery requests have revealed fraudulent and/or forged documents or the trial court has required, by the trial court’s own rules and orders, an exchange of proposed exhibits thereby revealing a proposed fake document as an exhibit, you have the advantage of preparing your objection to the document as an exhibit.
To verify that a document is not real, the best counter-evidence to present is the real document. The real document is the original document before it was maligned by your opponent’s unscrupulous edits.
“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.” Ill. R. Evid. 1002
The original documents is the only document that will be accepted as evidence by the court. This is referred to as the “Best Evidence Rule.”
If you do not have access to the original document or there never was an original document because the document is a forgery in todo, you will need an expert to testify that the document is fake.
There is an entire profession of people who question documents. They are certified by the American Board of Forensic Document Examiners and/or members of the American Society of Questioned Document Examiners.
One of these experts can examine the document and sign an affidavit as to their opinion of the lack of genuineness of the document. That affidavit can then be attached to a written objection and/or Motion In Limine asking the court to either deny admission of the proposed exhibit or requiring an evidentiary hearing to determine if the exhibit “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the [fact finder]” Ill. R. Evid. 403
Should the document be determined to be fake, attorneys’ fees will be ordered.
“If at any time a court finds that a hearing under this Act was precipitated or conducted for any improper purpose, the court shall allocate fees and costs of all parties for the hearing to the party or counsel found to have acted improperly.” 750 ILCS 5/508(b)
More importantly, the credibility of the party who proffered the fake document will be destroyed and their case will suffer accordingly.
To add injury to insult, upon the confirmation that a document is fake and the profferer of the document knew it, the judge should immediately hold them in direct criminal contempt of court. Should the judge forget that they have this enormous, immediate power to punishment something they personally observed, gently remind the judge of that power.
Furthermore, your opponent is now likely guilty of the crime of forgery. “A person commits forgery when, with intent to defraud, he or she knowingly: (1) makes a false document or alters any document to make it false and that document is apparently capable of defrauding another” 720 ILCS 5/17-3(a)
“[F]orgery is a Class 3 felony” 750 ILCS 5/17-3(d)(1)
Class 3 felonies shall have a “sentence of imprisonment shall be a determinate sentence of not less than 2 years and not more than 5 years.” 730 ILCS 5/5-4.5-40(a)
If you suspect your opponent is so bold as to use false, fake or forged documents, give me a call at my Chicago, Illinois family law firm.