If you cannot agree with your spouse as to the terms of your divorce, you are going to have ask a judge to resolve your disagreements.
In Illinois, the finder of fact is a judge NOT a jury. “There shall be no trial by jury” 50 ILCS 5/103
Often, you can present your case to your judge in a more informal pre-trial setting where the judge will make recommendations based on the summary of the facts by the respective sides. If you don’t agree with the judge’s recommendations, you can present your evidence to the judge and request a ruling on your petition or motion.
“An evidentiary hearing, including the right to present witnesses and engage in cross-examination, must be given if properly requested in domestic relations cases.” In re Marriage of Giammerino, 81 Ill. App. 3d 998, 999 (1980)
Hearings are part of every American’s right to due process. “Procedural due process generally refers to notice and the opportunity to be heard,” and the rights involved include “a right to present evidence and argument, a right to cross-examine witnesses, and impartiality in rulings upon the evidence which is offered.” Fischetti v. Village of Schaumburg, 2012 IL App (1st) 111008, ¶ 16.
Once you’re in a hearing or trial, you’re bound by the Illinois Rules Of Evidence. “[B]y order of the Illinois Supreme Court, the Illinois Rules of Evidence will govern proceedings in the courts of Illinois” Ill. R. Evid. preamble
Evidence is the information presented to the finder of fact (the judge). The judge, the lawyers and the parties invoke the rules to either admit information into evidence or keep evidence from being admitted and thus considered by the judge.
In this article, we’re only going to discuss how to get testimony and exhibits INTO evidence. Objecting to proposed testimony and exhibits is an even larger issue which I will delve into in an article yet to be written.
Evidence In An Illinois Divorce
In a divorce or family law trial or hearing there is always going to be evidence.
Every divorce or family law matter is a request that someone do something via court order. This is called “equitable relief.” “Oral testimony in actions seeking equitable relief. On the trial of every action seeking equitable relief, oral testimony shall be taken when desired by either party.” 735 ILCS 5/2-1112
“[T]estimony is evidence.” People ex rel. Hartigan v. ILL. COMMERCE COM’N, 592 NE 2d 1066 – Ill: Supreme Court 1992
“The court shall conduct a trial or hearing to determine a plan which maximizes the child’s relationship and access to both parents and shall ensure that the access and the overall plan are in the best interests of the child. The court shall take the parenting plans into consideration when determining parenting time and responsibilities at trial or hearing.” 750 ILCS 5/602.10(g)
“The presumption of marital property is overcome by showing through clear and convincing evidence that the property was acquired by a method listed in subsection (a) of this Section or was done for estate or tax planning purposes or for other reasons that establish that a transfer between spouses was not intended to be a gift.” 750 ILCS 5/503(b)(1)
“The court may issue a temporary restraining order without requiring notice to the other party only if it finds, on the basis of the moving affidavit or other evidence” 750 ILCS 5/501(b)
We all know that you can object to evidence but how do you offer evidence to an Illinois divorce court and get that information entered into evidence so the court can consider the evidence?
Preliminary Evidence In An Illinois Divorce Case
Evidence is almost always first introduced to the court via a witness providing testimony. Sometimes the testimony is the evidence itself. Sometimes the testimony is to introduce some other kind of information like a document.
The other attorney or the judge themselves can object to your evidence at any time.
“[A] timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context” Ill. R. Evid. 103(a)(1)
Most evidence proffered is not objectionable because it is preliminary to the actual evidence.
“Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination, the court is not bound by the rules of evidence except those with respect to privileges.” Ill. R. Evid. 104(a)
These preliminary questions establish both foundation and authenticity.
Foundation and Authentication In An Illinois Divorce Trial
Laying foundation is providing the sufficient preliminary evidence of the authenticity and relevance for the admission of material evidence in the form of exhibits or testimony of witnesses.
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).
Your evidence will not be admitted if your evidence is not authenticated.
Foundation and authentication almost always happen simultaneously because they are usually established by the exact same questions. Just focus on authenticating your evidence and you’ll also lay the foundation 99% of the time. The objections to foundation and authentication are different, though.
Foundational questions make the subsequent questions make sense. “Where were you on Saturday, June 5, 2020?” Is usually necessary before you ask, “Who, if anyone, did you see there?”
If you get a foundation objection, just keep asking questions. If you get lost, ask the court for help regarding what foundational questions would be appropriate. The court will help you!
A judge can authenticate evidence based on their own experience. For example, a judge can say “I know how a camera works” without the witness explaining every aspect of the mechanism.
“A trial judge does not operate in a bubble; she may take into account her own life and experience in ruling on the evidence.” People v. Thomas, 377 Ill. App. 3d 950, 963 (2007) (citing People v. Tye, 141 Ill. 2d 1, 23-24 (1990)).
There really are no rules for proper authentication. The Illinois Rules of Evidence, instead, only provide us with some examples.
“Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert Opinion on Handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
(3) Comparison by Trier or Expert Witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
(4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics of an item, including those that apply to the source of an electronic communication, taken in conjunction with the circumstances.
(5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
(6) Telephone Conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.
(7) Public Records or Reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
(8) Ancient Documents or Data Compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.
(9) Process or System. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
(10) Methods Provided by Statute or Rule. Any method of authentication or identification provided by statute or by other rules prescribed by the Supreme Court.” Ill. R. Evid. 901(b).
Authentication is a low bar that almost any rational explanation will satisfy. The other side can still contest the evidence’s veracity or weight after it is admitted. “A finding of authentication is merely a finding that there is sufficient evidence to justify presentation of the offered evidence to the trier of fact and does not preclude the opponent from contesting the genuineness of the writing after the basic authentication requirements are satisfied.” People v. Downin, 828 NE 2d 341 – Ill: Appellate Court, 3rd Dist. 2005
Some documents are self-authenticating because they are so traditionally reliable. Virtually any public document from a government office is presumed to be self-authenticating under Rule 902 of the Illinois Rules of Evidence.
Additionally self-authenticating are “[p]rinted materials purporting to be newspapers or periodicals.” Ill. R. Evid. 902(6).
The most common self-authenticating documents are business records. Virtually any document from a business is made pursuant to a regular process. Therefore, these records are, presumably, reliable
“Certified Records of Regularly Conducted Activity. 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.” Ill. R. Evid. 902(11).
Business records will need a Business Records Certificate Of Authenticity Affidavit signed by the “custodian of records” (whoever keeps the records at the business).
Photos and recordings are common evidence in an Illinois…and you probably do not even need to authenticate them if you can have someone testify that the picture or recording was taken in a reliable way. This is called the “silent witness” theory of authentication.
Recordings can be admitted without someone testifying who actually there at the time of the recording if someone can testify to “(1) the device’s capability for recording and general reliability; (2) competency of the operator; (3) proper operation of the device; (4) showing the manner in which the recording was preserved (chain of custody); (5) identification of the persons, locale, or objects depicted; and (6) explanation of any copying or duplication process.” People v. Taylor, 353 Ill. Dec. 569, 577 (Ill. 2011)
More common recently is information from a computer or phone. You’ll need an expert to download the software.
“Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the procedural requirements for Rule 902(11) certification. The proponent also must meet the notice requirements of Rule 902(11).” Ill. R. Evid. 902(13).
Relevant Evidence In An Illinois Divorce Hearing Or Trial
When evidence is not preliminary it must be relevant to the actual issue at hand.
“All relevant evidence is admissible, except as otherwise provided by law. Evidence which is not relevant is not admissible.” Ill. R. Evid. 402
““Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ill. R. Evid. 401
Relevance is balanced against prejudice and confusion. For example, a Facebook post may be relevant but it may also reveal a party’s politics, which could prejudice a judge’s opinion of that party.
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Ill. R. Evid. 403
“Even relevant evidence may be excluded if its probative value is substantially outweighed by such factors as prejudice, confusion, or potential to mislead the [finder of fact]” Gill v. Foster, 626 NE 2d 190 – Ill: Supreme Court 1993
Again, preliminary questions may not be relevant but they may lead to relevant information.
“When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.” Ill. R. Evid. 104(b)
Other Ways Of Submitting Evidence To An Illinois Divorce Court
Sometimes you can bypass establishing foundation, authentication and relevance of a document pursuant to the Illinois statutes. This usually done through sworn reports or affidavits by professionals. While these reports and affidavits are admissible, the other side always has the opportunity to cross-examine the author and thereby question the authenticity and relevance of the original data.
The amount of information that a Guardian Ad Litem must process in order to make a recommendation regarding the children is so enormous that it would be impractical to introduce through testimony requiring foundation and authentication.
“The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child. The report shall be made available to all parties.” 750 ILCS 5/506
Contesting the Guardian Ad Litem’s recommendation is done via cross-examination.
“The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem’s report or recommendations.” 750 ILCS 5/506
Similarly, an Illinois divorce court can appoint a professional to investigate complicated issues (this is usually a psychiatrist). The professional’s report is automatically admitted to evidence unless the other party objects.
“Court’s professional. The court may seek the advice of any professional, whether or not regularly employed by the court, to assist the court in determining the child’s best interests. The advice to the court shall be in writing and sent by the professional to counsel for the parties and to the court not later than 60 days before the date on which the trial court reasonably anticipates the hearing on the allocation of parental responsibilities will commence. The court may review the writing upon receipt. The writing may be admitted into evidence without testimony from its author, unless a party objects. A professional consulted by the court shall testify as the court’s witness and be subject to cross-examination.” 750 ILCS 5/604.10(b)
In fact, anyone can attempt to submit evidence via signed and sworn affidavit. The other side can demand the presence of the affidavit signer for the purposes of cross-examination.
“If evidence is necessary concerning any fact which according to law and the practice of the court may now be supplied by affidavit, the court may, in its discretion, require the evidence to be presented, wholly or in part, by oral examination of the witnesses in open court upon notice to all parties not in default, or their attorneys. If the evidence is presented by oral examination, an adverse party shall have the right to cross-examination.” 735 ILCS 5/2-1103
Some things are so obvious that you don’t need to bother with foundation and authentication. Obvious and agreed facts can be entered into evidence via judicial notice.
“A court may take judicial notice, whether requested or not.” Ill. R. Evid. 201(c)
“A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Ill. R. Evid. 201(b)
This article barely scratches the surface of the Illinois Rules Of Evidence which can accurately be described as “the language of the law.” If you’re going into a hearing or a trial, you will need to be completely familiar with the Illinois Rules of Evidence or your evidence will not be entered in your divorce case and, therefore, will not be considered by the divorce judge. In a trial, truth doesn’t matter…proof is what matters.