Under Illinois Rule of Evidence 106, if your spouse introduces a misleading partial document or recording at trial, you can demand the court admit the rest of the document or recording to provide full context.
A divorce trial is very different than other trials. Most trials are about a singular moment in time: an accident, a crime, a breach of contract. In contrast, a divorce trial will require the presentment of incidents that occurred over years…and all of those incidents are in context of each other. Ensuring that the introduction of these incidences include the appropriate context requires that complete writings and recordings are brought before the court.
“When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” Ill. R. Evid. 106
For example, in family law, litigants are notorious for submitting screenshot of a text message that makes one party look terrible. The previous and subsequent texts, however, explain away their behavior. This also applies for single bank statements, partial video recordings, emails without the entire thread, etc.
In reality, it is rare that any document or recording truly stands on its own without other contextual recordings or documents to further explain what really happened. Virtually any document or recording can be objected to as being “incomplete and, therefore, inadmissible.”
It is not enough to simply demand that the opposing party produce more documents and recordings to provide the judge with more context. When objecting for incompleteness, you must be able to explain to the judge that the additional documents and recordings, in fact, contradict the document or recording that was just submitted as evidence.
This is a two-step process. First, you must sufficiently allege that the incomplete document or recording is misleading.
“[T]he purpose of Rule 106 is to correct the misleading nature of a writing or recorded statement or a portion thereof that has been taken out of context or is difficult to understand on its own. Where, as here, a defendant has not shown that the admitted writing or recorded statement, standing alone, is misleading, Rule 106 does not provide an avenue for admitting another writing or recorded statement.” People v. Craigen, 997 NE 2d 743 – Ill: Appellate Court, 2nd Dist. 2013
Second, you must sufficiently allege that the additional contextual documents or recordings can prevent the trier of fact (the judge) from being misled.
“[U]nder the common-law completeness doctrine in Illinois, the remainder of a writing, recording, or oral statement is admissible if necessary to prevent the trier of fact from being misled… These requirements for admissibility under the common-law completeness doctrine are easily applied to writings or recorded statements sought to be admitted under Illinois Rule of Evidence 106” People v. Craigen, 997 NE 2d 743 – Ill: Appellate Court, 2nd Dist. 2013
Furthermore, the additional contextual documents or recordings must be relevant. For example, you cannot just submit documents confirming your recent charity work to establish that you are, in fact, a good guy (or girl).
“The right to introduce an entire writing or conversation is not absolute; the additional parts of a statement or recording introduced under the completeness doctrine must be relevant.” People v. Venegas, 2022 IL App (3d) 200125 – Ill: Appellate Court, 3rd Dist. 2022
Rule 106 applies to written documents or recorded statements. If someone’s testimony seems to be incomplete, you can object using the common-law “completeness” doctrine”.
“The rule codified, at least in part, the common-law “completeness doctrine,” which provides that if one party introduces part of an utterance or writing the opposing party may introduce the remainder or so much thereof as is required to place that part originally offered in proper context so that a correct and true meaning is conveyed to the [finder of fact]. The rule did not codify the common-law doctrine in its entirety, because the common-law doctrine applies to oral statements as well as to writings and recorded statements” People v. Craigen, 997 NE 2d 743 – Ill: Appellate Court, 2nd Dist. 2013 (citations omitted)
But, requiring further testimony from a witness because their recordation of what someone said is kind of silly. You can keep the original testimony out via a hearsay objection or, if the person who said it is testifying, you can simply cross-examine them to get the additional statements necessary to clarify the record.
Perhaps the real advantage of invoking this objection is that it allows you to bring in the contextual documents or recordings without authenticating those documents The other documents required by Rule 106 or the doctrine of completeness do not need to be authenticated.
“Again, under the common-law completeness doctrine, the remainder of a writing, recording, or oral statement is admissible only if required to prevent the jury from being misled, to place the admitted portion in context so that a true meaning is conveyed, or to shed light on the meaning of the admitted portion, and the same holds true for admissibility of a writing or recorded statement under Illinois Rule of Evidence 106. Simply because a writing or recorded statement is related to an admitted writing or recorded statement, or pertains to the same subject matter, does not mean that it satisfies the requirements for admissibility under Rule 106” People v. Craigen, 997 NE 2d 743 – Ill: Appellate Court, 2nd Dist. 2013
Normally, any document or recording has to be authenticated to get into evidence.
“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Ill. R. Evid. 901(a)“In civil cases in Illinois, the basic rules of evidence require a proponent of documentary evidence to lay a foundation for the introduction of that document into evidence… Evidence must be presented to demonstrate that the document is what its proponent claims it to be… Without proper authentication and identification of the document, the proponent of the evidence has not provided a proper foundation and the document cannot be admitted into evidence.” Anderson v. Human Rights Comm’n, 314 Ill. App. 3d 35, 42 (2000).
Evidence that makes you look terrible is usually controlled by the other side. So, any contextual evidence that would make you look good, would also be controlled by them. This relief from authentication means the opposing side can’t hem and haw in a way that might keep you from properly authenticating your contextual evidence to counter their misleading evidence.
Making sure you and your opposing counsel have the complete document will require that you issue a notice to produce requesting all documents they intend to use at trial including the complete version of those documents (all texts between the parties of any text you intent to present, complete threads of all emails, complete videos of any recordings you intend to present.)
They say every story has two sides. In a divorce hearing or trial, make sure your side gets in automatically via Rule 106.
If you’d like to learn more about divorce trial techniques and the rules of evidence, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney today.
