An old joke best illustrates the concept of hearsay in a trial.
Witness: “Then Bobby told me that he was the one that did it.”
Lawyer: “Ah. So, hearsay?
Witness: “Yup. I heard ‘em say it”
“”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
The distinction between admissible and inadmissible hearsay evidence is illustrated by the “example of the witness A testifying that `B told me that event X occurred.’ If A’s testimony is offered for the purpose of establishing that B said this, it is clearly admissible—if offered to prove that event X occurred, it is clearly inadmissible.” Carpenter, 28 Ill.2d at 121, 190 N.E.2d 738.
These second-hand statements are considered inherently unreliable and are, therefore, not admissible into evidence during an Illinois divorce hearing or trial.
The Illinois rules of evidence strive to get the original source of information before the finder-of-fact.
“Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Supreme Court, or by statute as provided in Rule 101.” Rule 802 – Hearsay Rule, Ill. R. Evid. 802
“The testimony must be based on concrete facts perceived from the witness’ own senses.” People v. Novak, 643 NE 2d 762 – Ill: Supreme Court 1994
“To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required.” Rule 1002 – Requirement of Original, Ill. R. Evid. 1002
That information can either be oral, written or merely the actions of person. “A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” Rule 801 – Definitions, Ill. R. Evid. 801
Any mention of a statement or writing that came from outside the courtroom…today, shall be met with an objection from the opposing counsel: “Objection! Hearsay”
Objecting to hearsay is easy because it is so obvious when it happens: the person is saying something someone else told them. The hard part is being the party trying to present the hearsay evidence through the numerous exceptions to the hearsay rule.
“The Truth Of The Matter Asserted” and Hearsay In An Illinois Divorce
While the bar against hearsay has numerous listed exceptions, the first exception is in the rule itself. A statement can only be hearsay if “offered in evidence to prove the truth of the matter asserted”
Words mean what they say. If you can show that the statement tells you something DIFFERENT than what it says, you can introduce it into court.
For example, a threatening phone call where someone says “you horrible bitch” is not hearsay if introduced because you are NOT trying to prove that the person on the other line is a “horrible bitch,” you ARE trying to prove that the phone call was threatening.
“When an out-of-court statement is used not as evidence of the fact asserted, but as circumstantial evidence for another purpose, the hearsay rule does not apply.” Leonardi v. Loyola University of Chicago, 658 NE 2d 450 – Ill: Supreme Court 1995
So, the first thing a hearsay-presenter needs to think about is “How could this statement communicate something different than what it actually says.” This should always be planned out in advance.
Things That Are Never Hearsay In An Illinois Divorce Hearing Or Trial
In lieu of memorizing the many intricacies of the hearsay rule’s exceptions, one should first focus on the types of testimony which are NEVER hearsay.
In an Illinois divorce, anything your spouse ever said or did is not covered by the hearsay rule. You can admit anything, your spouse said, did, or their agents said or did into evidence without your spouse testifying as to the accuracy of that statement.
“The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy, or (F) a statement by a person, or a person on behalf of an entity, in privity with the party or jointly interested with the party.” Rule 801 – Definitions, Ill. R. Evid. 801(d)(2)
Objections as to hearsay for your spouse’s out-of-court statement can be relied to as a “Statement of a Party Opponent.”
Of course, your spouse will be there with you in court when you bring up their past statements and will be able to offer rebuttal testimony. That’s why it’s automatically admissible.
There are also numerous documents that an Illinois divorce court will admit without testimony because they are presumed to be so inherently reliable that an Illinois divorce judge could effectively take “judicial notice” of the facts contained therein.
A quick list of non-hearsay documents includes: Public Records and Reports, Records of Vital Statistics, the Absence of Public Record or Entry, Records of Religious Organizations, Marriage Baptismal and Similar Certificates, Family Records, Records of Documents Of Interest Affecting an Interest to a Party, Statements in Documents Affecting an Interest in Property, Statements in Ancient (pre-1998) Documents, Market Reports and Commercial Publications.
The reason why these types of statements are never hearsay is that they are automatically authenticated.
Authentication is “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Ill. R. Evid. 901(a).
“The requirement of authentication or identification as a condition precedent to admissibility” Ill. R. Evid. 901(a).
Hearsay is the opposite, it’s not authenticated because the person testifying never felt, experienced or perceived it. So, a good way to think of hearsay is “how else could it be authenticated without the original person’s testimony”
Hearsay Exceptions In An Illinois Divorce Hearing Or Trial
While hearsay is inherently bad, there are some kinds of hearsay that are inherently good. That is, the nature of the hearsay as almost sure to be reliable. That is, with just a little extra evidence, the hearsay evidence can be authenticated…and thus made reliable.
So, a question you can ask while trying to get hearsay evidence considered by an Illinois divorce court is “why is it likely that this information is true insomuch as we don’t need the person who actually said it to testify.”
An excited utterance is reliable because why would a person lie if they are babbling in surprise?
“A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Rule 803 – Hearsay Exceptions; Availability of Declarant Immaterial, Ill. R. Evid. 803
Similarly, a statement describing a person’s current state of mind or physical condition is likely to have been true at that time.
“A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)” Rule 803 – Hearsay Exceptions; Availability of Declarant Immaterial, Ill. R. Evid. 803
But these state’s of mind are not to be confused with memories or descriptions of the state of mind of another person.
State of mind/body declarations are not an exception to the hearsay rule if “(A) a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will; or (B) a statement of declarant’s then existing state of mind, emotion, sensation, or physical condition to prove the state of mind, emotion, sensation, or physical condition of another declarant at that time or at any other time when such state of the other declarant is an issue in the action.” Rule 803 – Hearsay Exceptions; Availability of Declarant Immaterial, Ill. R. Evid. 803
Likewise, a statement by a party that is so damning to themselves, that no one would say it unless it was true will be an exception to the hearsay rule.
“A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” Rule 804 – Hearsay Exceptions; Declarant Unavailable, Ill. R. Evid. 804
Former testimony under oath will not require the witness to reappear to avoid a hearsay objection.
“Testimony given as a witness (A) at another hearing of the same or a different proceeding, or in an evidence deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination” Rule 804 – Hearsay Exceptions; Declarant Unavailable, Ill. R. Evid. 804(b)(1)
Even a discovery deposition can be admitted as evidence without the witness present if some pre-requisite notices are made.
Written Hearsay That’s Inherently Reliable In An Illinois Divorce Hearing or Trial
If someone wrote something down, that writing is likely to be more accurate than not. If the statement was written down right after the remembered thing happened, it will be deemed so accurate that the “recorded recollection” is an exception to the hearsay rule.
“A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.” Rule 803 – Hearsay Exceptions; Availability of Declarant Immaterial, Ill. R. Evid. 803
If the written statement wasn’t written immediately after the incident happened, the statement can still be admitted if the statement was regularly kept in the course of business, like a police report or an insurance adjuster’s records.
“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)” Rule 803 – Hearsay Exceptions; Availability of Declarant Immaterial, Ill. R. Evid. 803(6)
Whoever is responsible for these documents must provide a certification for the court to inspect indicating that the documents were prepared in the usual, reliable manner. This certification authenticates the documents.
“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” Rule 902 – Self-Authentication, Ill. R. Evid. 902
This certification requirement only applies to records that are not already listed in the Illinois Rules of Evidence as being automatic (which are almost all public records and can be admitted via judicial notification as well)
Character Evidence And Hearsay In An Illinois Divorce Hearing or Trial
If your Illinois divorce case has gotten to the point where you are prepared to go to trial, one of the parties is going to be really upset at the other party and will try to explain why they are so upset to the judge. This inevitably involves presenting evidence of the other party’s character.
Any testimony as to character is inherently hearsay. “He’s known as a good dad but a bad drunk” is hearsay as to what other people know. But, that type of character evidence falls under the hearsay exception: “Reputation of a person’s character among associates or in the community.” Rule 803 – Hearsay Exceptions; Availability of Declarant Immaterial, Ill. R. Evid. 803(21)
While it may be tempting to include a parade of witnesses to testify as your or your spouse’s character, the testimony will be largely irrelevant in an Illinois divorce proceeding.
Illinois divorce courts “shall divide the marital property without regard to marital misconduct” 750 ILCS 5/503(d)
Character evidence is usually not going to move the needle for parenting time issues…so long as the bad character doesn’t happen in front of the kids.
“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)
“Parental conduct that does not adversely affect the child is not to be considered in the custody determination.” In re Marriage of Stone, 164 Ill. App. 3d 1046, 1053 (1987)
Hearsay Within Hearsay
Once you’ve gotten your hearsay evidence past the judge through one of the hearsay exceptions you can still be subject to other hearsay objections via “hearsay within hearsay.”
For example, a police officer’s report could be admitted via the recorded recollection exception, but the quotes from the witnesses in the report would still be hearsay. Each of these individual hearsay statements would have to have their own exemption to come into court.
“Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.” Rule 805 – Hearsay Within Hearsay, Ill. R. Evid. 805
Hearsay within hearsay used to be uncommon…until screenshots from social media came to be a thing. A screenshot of something someone said is hearsay. Even if the screenshot taker, testifies to having taken the screenshot.
Using Your Opponent’s Hearsay To Your Advantage
If your opponent attempts to bring a hearsay statement or actually does bring in a hearsay statement via an exception, you can ask them “If this statement is so important, why did you not bring the original speaker/author in to testify?” When a party uses hearsay in lieu of actual testimony, it can be presumed that the actual testimony would against the party trying to introduce hearsay.
“Where a witness who has knowledge of the facts and is accessible to a party is not called by a party, a presumption arises that his testimony would be adverse to that party” Johnson v. OwensCorning Fiberglas Corp., 233 Ill. App. 3d 425, 437 (1992)
After all, is this not the reason why hearsay is kept out in the first place? If the statement was so persuasive, you’d bring in the original speaker to testify.
All of these hearsay exceptions have copious case law related to them that I did not include in this article (like I usually do). It’s simply too much to swallow at once. Again, please think of hearsay as an automatically non-authenticated statement. If you want to get hearsay in, just authenticate the statement using one of the hearsay exceptions. Again, think of a way to authenticate the documents and then label that way with a hearsay exemption. (Do you understand now?)
Divorce can be easy, but divorce trials are never easy. You have to know a lot of rules and you have to know them off the top of your head. If all these rules are too much for you or you like discussing them, contact me with your issue and we can arrange a free consultation.
