Posted on August 8, 2021

Photographs and Videos In An Illinois Divorce Hearing Or Trial

Photographs can prove the existence of marital assets and income. Videos can be evidence of a child’s relationship with a parent or parent’s family member. Photographs and videos can illustrate things that even the best written pleading or motion can never effectively communicate to a judge.

A picture is worth a thousand words. So, if you have some pictures that prove a point in your Illinois divorce, you should show the judge that photograph.

It is not enough to merely hand the judge a photo album, though. The Illinois Rules of Evidence require that certain steps be taken before a judge can put the photograph into evidence and then weigh that photograph along with the other testimony that has been taken.

“Photographs, like any evidence, may be admitted into evidence when authenticated and relevant either to illustrate or corroborate the testimony of a witness, or to act as probative or real evidence of what the photograph depicts.”  People v. Smith, 152 Ill. 2d 229, 263 (1992).

Authenticating A Photograph In An Illinois Court

Every physical or digital item must be authenticated first before being admitted 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

Authentication can be done by simply describing the item to establish that the item is what you say it is.

“Testimony that a matter is what it is claimed to be.” Ill. R. Evid. 901

“I took this photo on June 5, 2020” would be sufficient authentication to allow entry of a photograph

Some photos and/or videos are taken automatically. In those cases, a mere description of the system by which the photo is taken would be sufficiently authenticate the photo or video.

“Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.” Ill. R. Evid. 901

So, testifying that “My Nest camera captures movement on my front porch” would be sufficient to authenticate a video that no one, personally, took.

Authentication doesn’t take much. It just requires a little foundation to establish that the item being presented is probably real.

“The requirement of authentication is satisfied where the evidence is sufficient to support a finding by a reasonable juror that it is more probably true than not true that the matter in question is what its proponent claims.” Flynn v. Golden Grain Co., 269 Ill. App. 3d 871, 886 (1995) (citing Michael H.Graham, Cleary and Graham’s Handbook of Illinois Evidence § 901.1, at 713 (5th ed. 1990)).

You don’t need the actual photographer to testify that they took the photograph or video or set up the system which took the photograph or video. You just need someone to say the photo or video is an accurate representation of whatever the actual thing was that was photographed or videotaped.

‘In general, photographs are admissible into evidence if they are identified by a witness who has personal knowledge of the subject matter depicted in the photographs and the witness testifies that the photographs are a fair and accurate representation of the subject matter at the relevant time.'”  Lambert v. Coonrod, 2012 IL App (4th) 110518, ¶ 29 (quoting People v.Martinez, 371 Ill. App. 3d 363, 380 (2007))

“A sufficient foundation is laid for a still photograph, a motion picture, or a videotape by testimony of any person with personal knowledge of the photographed object at a time relevant to the issuesthat the photograph is a fair and accurate representation of the object at that time ***.”(Emphasis omitted.) (Internal quotation marks omitted.)  People v. Flores, 406 Ill. App. 3d 566,572 (2010) (quoting Michael H. Graham, Cleary & Graham’s Handbook of Illinois Evidence §401.8, at 135 (8th ed. 2004)).

You really don’t need anyone special to admit a photograph or video into evidence.

“[E]xpert testimony is not required to establish a foundation for photographic evidence; all that is needed is testimony of any person with personal knowledge of the photographed object, at the time relevant to the issues, and that the photograph is a fair and accurate representation at that time.” In re Marriage of Perry, 2012 IL App. (1st) 113054

Introducing Screenshots In An Illinois Divorce Hearing Or Trial

The most common kind of photo that is attempted to be introduced in the year 2021 is the screenshot from a phone or computer.

Screenshots are definitely allowed as photos so long as they are authenticated. Screenshots will be admitted if the screenshot taker “testified that the screenshots fairly and accurately depicted the [social media] posts at the time [they] took the shots.” People v. Brown, Ill: Appellate Court, 1st Dist., 1st Div. 2021

Screenshots of social media almost always involve text or audio (if it’s a video). The text or audio is an out of court statement and is, therefore, hearsay. Hearsay is inadmissible in an Illinois court.

“”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.”, Ill. R. Evid. 801

“Hearsay is not admissible except as provided by these rules” Ill. R. Evid. 802

99% of the time, the hearsay from a screenshot will be the opposing party saying something stupid, dangerous or incriminating. Otherwise, why would you be trying to introduce the screenshot into evidence.

Things the other party writes or says are admissible even if they’re hearsay under the “admission of a party opponent” exception to the hearsay rule.

Hearsay from the opposing party will be allowed if“[t]he statement is offered against a party and is (A) the party’s own statement” Ill. R. Evid. 801(d)(2)

If the statement in the screenshot is from someone else, you’ll need to find another exception to the hearsay rule or bring that person into court to testify to the accuracy of their recorded statement.

Photos and Video Must Be Relevant

It’s tempting to show the judge an embarrassing photo or video of the opposing party. The photo or video must be relevant to the issues at hand to be admitted and considered by an Illinois divorce judge.

“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

“A photograph ‘may be excluded if it is irrelevant or if its prejudicial nature clearly outweighs its probative value.’ ” Lambert v. Coonrod, 2012 IL App (4th) 110518 (quotingBoren v. BOC Group, Inc., 385 Ill. App. 3d 248, 255 (2008)).

Divorces are messy. Silly photos and videos are likely to be found to be irrelevant because the court is dividing assets and allocating parenting time, not weighing in on whether the other person is a drunk, promiscuous or even just a moron.

Illinois divorce courts “shall divide the marital property without regard to marital misconduct” 750 ILCS 5/503(d)

“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)

If your Illinois divorce involves child custody issues, you can bypass all of these issues of authentication, hearsay and relevancy by simply showing the photos, videos and screenshots to a Guardian Ad Litem can refer to the photos, videos and screenshots in their report without any evidentiary barriers.

Photographs Probably Should Be Disclosed Before Hearing Or Trial

Each side in an Illinois divorce case has the right to ask, in advance, for any photographs or videos that the other side may use in trial.

“Any party may by written request direct any other party to produce for inspection, copying, reproduction photographing, testing or sampling specified documents, including electronically stored information…objects or tangible things, or to permit access to real estate …or photographs” Ill. Sup. Ct. R. 214 (emphasis mine)

If a party shows up at trial with photographs they have not disclosed but were asked to disclose, those photographs may not be allowed at trial.

“If a party, or any person at the instance of or in collusion with a party, unreasonably fails to comply with any provision…the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:

That a witness be barred from testifying concerning that issue.” Ill. Sup. Ct. R. 219(c)(iv)

Do You Have To Use An Original Photo Or Video?

The Illinois Rules Of Evidence have an antiquated description of what constitutes a “photograph”

“”Photographs” include still photographs, X-ray films, video tapes, motion pictures and similar or other products or processes which produce recorded images.”  Ill. R. Evid. 1001

In most instances, the best evidence rule requires that a party only be allowed to submit the original item they want into evidence.

“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

Now, most photos are digital and I’m not even sure what an original video would be. Every digital photo and video is a duplicate and that’s okay so long as the photo or video was not manipulated somehow.

“A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” Ill. R. Evid. 1003

“The original is not required and other evidence of the contents of a writing, recording, or photograph is admissible if-

(1)Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

(2)Original Not Obtainable. No original can be obtained by any available judicial process or procedure; or

(3)Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing; or

(4)Collateral Matters. The writing, recording, or photograph is not closely related to a controlling issue.” Ill. R. Evid. 1004

Photos, Videos and Screenshots are a great way to corroborate your testimony in an Illinois divorce trial. Don’t be afraid to submit photos to the Illinois divorce judge who is deciding you and your family’s fate. To learn more, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce lawyer.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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