Divorce is a state of conflict and, often, police are called to resolve divorce conflict. When the police finish their work, they often prepare a report of what happened. That report will include the police officer’s observations and opinions. In addition, the police report will contain statements by the parties, other police officers, paramedics and anyone else who was present at the time.
Illinois divorce courts will give great deference to a police officer’s testimony. The police officer should have no bias. A police officer’s testimony is often the only thing that makes sense after a chaotic confrontation between two spouses. For this reason, great care must be taken when introducing a police officer’s testimony including studying and using the police officer’s report to help your Illinois divorce case.
Requesting A Police Report
The police will happily provide anyone associated with a police call with a police report. The police must provide any victim of a crime with a police report almost immediately.
“Upon the request of the victim, the law enforcement agency having jurisdiction shall provide a free copy of the police report concerning the victim’s incident, as soon as practicable, but in no event later than 5 business days from the request.” 725 ILCS 120/4(b-5)
If you are not the victim of a crime, you can still request a police report.
“Each public body shall make available to any person for inspection or copying all public records” 5 ILCS 140/3(a)
Each police department has its own procedures for requesting police reports.
Additionally, an attorney (even a divorce attorney) has a subpoena power which allows them to request police reports under the force of law.
Why Is A Police Report Important In An Illinois Divorce?
A police report will tell you in advance what the police officer will testify to at your Illinois divorce hearing or trial.
The police report will not be evidence in itself. The police officer must testify as to what they saw, heard and experienced. The police report is an out of court statement. Out of court statements are inadmissible hearsay.
“”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
A “police report is not a “source of indisputable accuracy.” It is an inadmissible hearsay document of unproved verity.” Vincent v. Williams, 664 NE 2d 650 – Ill: Appellate Court, 1st Dist., 1st Div. 1996
Just because the police are presumably an unbiased party to a divorce does not mean that the police’s reports automatically get considered by an Illinois divorce court.
A “police report should not [be] judicially noticed” Vincent v. Williams, 664 NE 2d 650 – Ill: Appellate Court, 1st Dist., 1st Div. 1996
A police report is not to be treated as a business record wherein a police officer can just certify that he or she made the report without authenticating the report in court.
“Although police accident reports may otherwise be admissible in evidence under the [business records exception] of this rule does not allow such writings to be admitted as a record or memorandum made in the regular course of business.” Ill. Sup. Ct. R. 236
The police respond to numerous calls every day and are then expected to remember details of the few calls that go to court months or years later. So, the police are allowed to use their reports in court in order to help them remember.
Police Reports As Recorded Recollection
The whole point of the rules of evidence is to ensure that the information considered by the court has some degree of accuracy and that the best version of that evidence be presented to the court.
The best version of that evidence is a witness’s personal memory. If a witness’s memory is not complete and there is a document (like a police report) available that was created at the time of the incident at issue, then that document may be used to help the refresh the witness’s memory.
An exception to the bar against hearsay includes “[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.” Ill. R. Evid. 803
A police report can only be used if the police officer who prepared the report CANNOT remember all of what happened.
“It is true…that a police report may be used to refresh recollection. However, it is fundamental that a witness’ memory can be refreshed only after it has been established that the witness has no memory concerning the facts in question. If a witness has testified that his memory is exhausted, a written memorandum may be used to refresh and assist his memory, but the manner and mode of refreshing a witness’ memory rests within the discretion of the trial court.” People v. Shatner, 673 NE 2d 258 – Ill: Supreme Court 1996
There are a few steps that must be taken to ensure that a recorded recollection is admitted into evidence.
“In Illinois, evidence may be admitted under the doctrine of past recollection recorded where: (1) the witness had firsthand knowledge of the recorded event; (2) the written statement was made at or near the time of the event and while the witness had a clear and accurate memory of it; (3) the witness lacks present recollection of the event; and (4) the witness can vouch for the accuracy of the written statement.” Roeseke v. Pryor, 504 NE 2d 927 – Ill: Appellate Court, 1st Dist. 1987
Upon admitting that the police officer can’t remember, the police report does not just get automatically entered. The whole point of the recorded recollection exception to the hearsay rule is to spark the witness’s memory.
It is impermissible when “the police report was not used to refresh [a police officer’s] memory, but was read by him into evidence.” Horace Mann Ins. Co. v. Brown, 603 NE 2d 760 – Ill: Appellate Court, 1st Dist., 1st Div. 1992
The police report is to clarify the officer’s testimony and not to adopted as a whole. Otherwise, how do you cross-examine someone who reads a police report and claims not remember anything else.
“Nonetheless, exceptions to the rules of exclusion may be found where an officer’s first-hand observations are recorded and the officer’s report is offered at trial to clarify his testimony. A police report may be used to refresh the officer’s recollection at trial and may be received into evidence under the “past recollection record” exception to hearsay, if a proper foundation is laid” Cranwill v. Donahue, 478 NE 2d 22 – Ill: Appellate Court, 3rd Dist. 1985
It cannot just be any police officer who uses the report to testify. The police officer must have been there at the scene of the incident.
“Critical to the use of the past-recollection-recorded doctrine is that the testifying witness have “firsthand” or personal knowledge of the events disclosed in the report.” Roeseke v. Pryor, 504 NE 2d 927 – Ill: Appellate Court, 1st Dist. 1987
To reiterate and clarify, the distinction between using a report and admitting the report into evidence must be made. A police officer can use the report to supplement his testimony only if the proper foundation for a recorded recollection has been made. Otherwise, the use of the police report is putting an out-of-court statement into evidence, which is not allowed under the hearsay rule. When using a police report as a recorded recollection, we are not admitting the report wholesale at the end by saying “At this time, your honor, I’d like to admit the police report into evidence as Exhibit # 1.” The very use of the police report is an attempt to admit the reports contents into evidence.
Double Hearsay In Police Reports
Police reports are chock full of “he said/she said” statements. These statements are also hearsay.
Because a police report is itself hearsay and may include recorded statements of others (also, hearsay) a police report is often “double Hearsay.”
“[Police reports can] constitute double hearsay since [other people’s] out of court statement[s are] contained in a police report. In such a case, both levels must fall within an exception to the hearsay rule in order to be used as substantive evidence.” Horace Mann Ins. Co. v. Brown, 603 NE 2d 760 – Ill: Appellate Court, 1st Dist., 1st Div. 1992
When the police are involved in a divorce, the statements will typically be from the parties to the divorce.
“An out-of-court statement by a party…constitutes an admission….Admissions are exceptions to the hearsay rule.” Loughnane v. City of Chicago, 545 NE 2d 150 – Ill: Appellate Court, 1st Dist. 1989
The hearsay rule can not be invoked when “[t]he statement is offered against a party and is (A) the party’s own statement” Ill. R. Evid. 801(d)(2)
So, the past recorded recollection exception coupled with the admission of a party exception eliminates double hearsay.
“Past recollection recorded may be employed in connection with double-level hearsay.” Loughnane v. City of Chicago, 545 NE 2d 150 – Ill: Appellate Court, 1st Dist. 1989
State Of Mind And Excited Utterances In A Police Report
Other statements may appear in a police report that satisfy other exceptions to the hearsay rule.
If someone says something as to their state of mind such as “I’m scared” or “I’m angry” that statement can be seen as reliable and is, thus, an exception to the bar against hearsay. State of mind statements are obviously very common when the police have been called.
“Generally, an out of court statement of a declarant is admissible when that statement tends to show the declarant’s state of mind at the time of the utterance. A statement qualifies under the state of mind exception to the hearsay rule when it purports to relate to a condition of mind existing at the time the statement is made and when it was made under circumstances indicating apparent sincerity.” Horace Mann Ins. Co. v. Brown, 603 NE 2d 760 – Ill: Appellate Court, 1st Dist., 1st Div. 1992
Excited utterances are similar to state of mind statements in that they are spontaneous and, therefore, reliable.
“To secure admission of a “spontaneous declaration” or “excited utterance,” the proponent of the evidence must demonstrate: (1) the occurrence of an event or condition sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) a statement relating to the circumstances of the occurrence.” People v. Smith, 604 NE 2d 858 – Ill: Supreme Court 1992
Police Reports And Impeachment In An Illinois Divorce
Police reports can come into evidence in an Illinois court to prove the police officer or anyone who made a statement to the police officer is mistaken or lying. Proving a prior inconsistent statement is called impeachment.
“Illinois courts do not admit police reports into evidence as substantive evidence of the facts related herein. Such reports, however, may be used for the limited purpose of impeachment” People v. Andrews, 428 NE 2d 1048 – Ill: Appellate Court, 1st Dist. 1981
A police report with an inconsistent statement can be introduced to prove that inconsistent statement.
“Upon the trial of any case any party thereto or any person for whose immediate benefit the action is prosecuted or defended, or the officers, directors, managing agents or foreman of any party to the action, may be called and examined as if under cross-examination at the instance of any adverse party. The party calling for the examination is not concluded thereby but may rebut the testimony thus given by countertestimony and may impeach the witness by proof of prior inconsistent statements.” 735 ILCS 5/2-1102
The inconsistent statement doesn’t even have to be about the subject matter at hand. A lie is a lie.
“The credibility of a witness may be attacked by any party” Ill. R. Evid. 607
The police report’s level of detail will correspond with the contrasting inconsistent statement.
“[A] police report is not competent if doubt exists whether the statements were actually made by the particular witness sought to be impeached.” People v. Colon, 314 NE 2d 664 – Ill: Appellate Court, 1st Dist. 1974
Guardian Ad Litems And Police Reports
If the police are called during a custody battle, the police reports will be crucial to determining who was at fault for what and, therefore, what are the best interests of the child.
In such cases, Guardian Ad Litems are invariably appointed to represent the best interests of the child. The Guardian Ad Litem is going to read and consider any and all police reports they can get their hands on.
“The guardian ad litem shall investigate the facts of the case” 750 ILCS 5/506(a)(2)
The Guardian Ad Litem doesn’t need anyone’s permission to request a police report or speak with a police officer. If your Guardian Ad Litem is not speaking with a police officer after an incident where the police were called, then something is wrong.
In the end, “[t]he 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.” 750 ILCS 5/506(a)(2)
The guardian ad litem’s report can include anything in the police report. Guardian Ad Litems are not limited by the rules of evidence.
“In discharging his or her duty, the GAL will review or consider all kinds of information regarding the child, both admissible and inadmissible at trial. Such information assists the GAL in determining the existence of problems that might cause the child psychological or physical harm. [A court will] fail to see any prejudice where the GAL listens to information that may be inadmissible at trial.” In re Marriage of Karonis, 296 Ill. App. 3d 86, 91 (Ill. App. Ct. 1998)
If your spouse has subpoenaed police to a hearing in your divorce case, you need to see the police report in advance and use that police report to support your arguments and defend your case. To learn more about how to do this, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce lawyer.