family law update a fench quarter festival illinois rules of... · family law update a fench...

2/27/2017

1

FAMILY LAW UPDATE

A FENCH QUARTER FESTIVAL

In camera interviews

Out of court statements

In court testimony

2

2/27/2017

2

750 ILCS 5/604.10

◦Discretionary with the court

File prior Motion

3

◦ Ascertain preferences as to allocation of Parental Responsibilities.

◦NOT evidence (Marriage of Agers, 2013 IL App (5th) 120375)

◦ Court should avoid asking preference directly

4

2/27/2017

3

◦ Counsel shall be present unless waived

◦May prepare questions for the court

◦ Court reporter shall be present

5

750 ILCS 5/604.10 provides

◦To protect child’s welfare

◦Record of any interview, report, investigation or testimony

◦May be kept secret

6

2/27/2017

4

Mental Health Code – 740 ILCS 5/104 - Privileged communications

7

Exceptions◦ Parents or guardians – child under age 12◦ Recipient – 12 years old or older◦ Parent or guardian – ages 12 to under 18 If recipient informed and does not object

Therapist does not find compelling reasons to deny

8

2/27/2017

5

◦ Ages 12 to under 18 - Not intended to prohibit

Current physical and mental condition

Diagnosis Treatment needs Services needed, including medication

9

Attorney or GAL

◦Represents a minor 12 years old or older

◦ In any judicial proceeding

◦ If court has granted attorney this right

10

2/27/2017

6

Il Sup Ct Rule 907 (b)

◦ Court shall enter an order to allow access to the child and all relevant documents

Il Sup Ct Rule 907 (c)

◦ Take reasonable steps necessary to obtain all information pertaining to issues affecting the child.

11

The Child Representative shall not disclose confidential communications made by the child, except as required by law or by the Rules of Professional Conduct.

12

2/27/2017

7

No requirement of confidentiality imposed upon GAL

13

State of mind exception – Il Rules of Evidence 803 (3)

Then existing state of mind

Availability of witness immaterial

14

2/27/2017

8

Statements of child expressing custody or visitation preferences may be admissible◦ Marriage of Deckard, 246 Ill App 3d 427 (4th Dist,

1993)

◦ Marriage of Rizzo, 95 Ill App 3d 636 (1st Dist, 1981)

15

Ill Rules of Evidence 803 (2)

◦ (2) Excited Utterance. 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.

16

2/27/2017

9

Child’s Spontaneous Utterance –

◦ Exclamations of pain or suffering or other spontaneous outward manifestations of emotion are not hearsay statements.

Marriage of Arcaute, 261 Ill App 3d 263 (3d Dist, 1994)

Family Law Benchbook – Section 3.27

17

750 ILCS 5/606.5 (c)

◦ Prior statements by child

◦ Allegations child is abused or neglected

◦ Admissible in hearing concerning custody or visitation

◦ If uncorroborated and not subject to cross-examination, insufficient by itself to support a finding of abuse or neglect

18

2/27/2017

10

Statements that a child has been abused or neglected are admissable. Insufficient by itself if not corroborated.◦ Doria W v Bradley W (3d Dist, 2000). 750 ILCS 5/606 (e)

applies to DVA, not 735 ILCS 2/8-2601.

◦ M/O Gilbert (1st Dist, 2004) 355 Ill App 3d 104. Section 606 (e) applies.

Contra◦ M/O Flannery (2nd Dist, 2002) 328 Ill App 3d 602. Section

8-2601 applies and hearing must be conducted to determine indicia of reliability.

19

Hearsay statements

735 ILCS 5/8-2601◦ Under age 13◦ Child abuse◦ Performed in the presence of child◦ Reliability hearing AND

Testifies at hearing or Unavailable as witness and corroborative

evidence◦ Notice required

20

2/27/2017

11

◦ Competency 725 ILCS 5/115-14

Every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter, except as provided

21

Declaration of truthful testimony

Capable of understanding the moral duty to tell the truth

Capable of being understood

Court to conduct preliminary examination

22

2/27/2017

12

◦ Age not determinative – children as young as four years old have been found competent – People v Born 156 Ill App 3d 775 (1987)

23

2/27/2017

1

FAMILY LAW UPDATE 2017:

A FENCH QUARTER FESTIVAL

Series of text messages received by Priscilla from 217-555-5510 – not Algernon’s phone

◦ “Hey #%&*! – You are a <##> …”

◦ “Don’t think Baby Charles is Algernons baby”

◦ “You were with Thomas when you were with Algernon”

◦ “Lied to Algernon that Charles is his baby”

◦ “You go to court Algernon will f*** beat you until your momma doesn’t know you”

2/27/2017

2

217-555-5510 belongs to Jennifer, Algernon’s current girlfriend

Civil domestic violence case brought by Priscilla against Algernon

◦Do you permit introduction of text messages

2/27/2017

3

Priscilla testified

◦ When she and Algernon were together, whenever he got angry he called her #%&*! – and - <##>

◦ Algernon threatened her that if she went to court Algernon will f*** beat you until your momma doesn’t know you

Do you permit introduction of text messages

2/27/2017

4

Stapp v Jansen 2013 Ill App (4th) 120513

◦ Court permitted introduction of emails and texts attributed to defendant

◦Opinion witness testified that they could have been doctored

◦Question for trier of fact

Email authentication

◦ By author

◦ Use of “reply” feature to generate address of original author

◦ Content of the information

◦ Other circumstances – appearance, contents, substance, internal patterns

◦ Produced by and then used against a party opponent

2/27/2017

5

Text messages

◦ Same as emails

◦ Ownership of the phone is generally not sufficient

◦ Consideration of circumstances surrounding exchange

Content

Background knowledge

History of communication by parties

9.01(3).1. Authentication of Photographs. (a). Generally. i. A photograph may be authenticated by the

testimony of any witness who has personal knowledge of the

subject matter of the photograph, and can testify that the photograph

is a fair and accurate representation of the scene or objects it

purports to portray. See, e.g., People v. Vaden, 336 Ill.App.3d 893, 899

(3d Dist. 2003), People v. Hebel, 174 Ill.App.3d 1, 27 (5th Dist. 1988).

2/27/2017

6

Witness is on his computer and sees webcam streaming a man engaging in personal sexual acts while 3 year is right next to him – uses 3 year old to help

Contacts internet provider who saves 10 second images and sends copies of images to law enforcement

Do you let witness identify printed photos obtained from internet provider

2/27/2017

7

Do you permit witness to testify about what he saw while watching the webcam stream?

In re LS, a minor 2014 IL App (4th) 131119

◦Distinguishes between testimony of one who observed event versus silent witness theory

2/27/2017

8

People v Taylor 2011 IL 110067◦ Silent witness – automatic video-recording

1 device capable of recording 2 competency of operator 3 proper operation 4 chain of custody 5 identification of the person and

location recorded 6 explanation of copying or

duplication process

Priscilla complains that Algernon created a posting on Craig’s List in her name and cellphone number which graphically invites men looking for women to contact her by cellphone.

Texted photos were encouraged. Subpoena to Craig’s List to obtain the ip address Subpoena to Comcast to obtain the address and

customer name She now seeks to introduce the texts and the

certified documents she received in response to subpoena.

2/27/2017

9

Do you permit Priscilla to introduce screenshots of the texts and photos she received in response to the listing?

Do you permit Priscilla to testify about what she saw on her phone and computer?

2/27/2017

10

Website data and posting

◦ Private website postings are not self-authenticating

◦ Information received from government websites is self-authenticating

Social networking communications and postings

◦ Rule 901 (b)

2/27/2017

11

Social Networking Messaging

◦ Proof of the identity of the sender, recipient or both

◦ General concern over the lack of security of the medium

◦ Application of the reply letter doctrine

◦ Contents known only to participants

◦ Retrieval of messages from a specific computer

Social networking postings – profile, photographs and tags◦ Personal information, photos, videos can be posted

by third persons – “tagging”

◦ Excluded –

Peo v Beckley 185 Cal App 4th 509 (2010)

Peo v Lenihan 911 NYS 2d 588 (Sup 2010)

2/27/2017

12

Computer generated documents◦ Proof of connection to a particular person – either

to show ownership or possession

◦ Process of retrieval of information

Stafford v Stafford 161 Vt 580 (1993) – testimony of wife she obtained list of husband’s extra-marital affairs from family computer sufficient

Peo v Slusher 844 P 2d 1222 (Colo App 1992) –retrieval to show date of document creation obtained by adverse party sophisticated in use of computers excluded

Griffin v Maryland 419 Md 343, 19 A 3d 415 (2011) ◦ Methods of authentication (myspace)

Ask the purported creator

Search computer of person who allegedly created the profile and posting

Obtain information directly from social networking site

2/27/2017

13

Manuel v State 357 SW 3d 66 (Tex App 2011)◦ Characteristics to consider

Consistency with email address

Author’s awareness of details of conduct

Email’s inclusion of consistent information

Emails references to author

State v Eleck 130 Conn App 632, 23 A 3d 818 (2011)◦ Authentication must be supported by context

Peo v Downin 357 Ill App 3d 193 (3d Dist, 2005)

◦ Finding of authentication simply means sufficient basis to justify presentation to jury

◦ Opponent may introduce evidence and argument contesting genuineness of document

◦ Ultimate issue is for trier of fact

2/27/2017

14

1. Preliminary determination by court of authenticity◦ Sufficient to show it is what proponent claims

◦ Evidence then subjected to cross-examination

2. Circumstances of authentication depend upon medium of communication

3. Evidence showing the process or system produces an accurate result

Il Rules of Evidence 901

(a) General Provision.

authentication … 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.

2/27/2017

15

(b) Illustrations.

(1) Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be.

***

(3) Comparison by Trier or Expert Witness.

Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

***

2/27/2017

16

(4) Distinctive Characteristics and the Like.

Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

***

(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.

***

2/27/2017

17

(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.

(1) Writings and Recordings. “Writings” and “recordings” consist of letters, words, sounds, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.

2/27/2017

18

(2) Photographs. “Photographs” include still photographs, X-ray films, video tapes, motion pictures and similar or other products or processes which produce recorded images.

(3) Original. An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An “original” of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an “original.”

2/27/2017

19

(4) Duplicate. A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.

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.

2/27/2017

20

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.

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.

(2) Original Not Obtainable.

(3) Original in Possession of Opponent.

2/27/2017

21

When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of Rule 104(a). However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.

EVIDENCE LITE: TOP 30 EVIDENTIARY

ISSUES IN FAMILY LAW CASES

Honorable Steven Nardulli

Honorable Arnold F. Blockman

1. Out of Court Statements Of Children To Parents or Lay Persons

(a) Statements of children expressing custodial preferences are admissible in a custody dispute for the limited purpose of showing the minor’s then existing state of mind. In re Marriage of Deckard, 246 Ill. App. 3d 427 (4th Dist. 1993)

(b) Illinois Rules of Evidence 803(3).

2. Parent’s Testimony As To Reasons For Wanting Custody

(a) A parent’s testimony regarding why he or she should be granted custody is permissible. In re Marriage of Arcaute, 261 Ill. App. 3d 263 (3rd Dist. 1994).

3. Out Of Court Statements Of Children As To Abuse Or Neglect In A custody Case

(a) Out of court statements by children as to abuse or neglect in a custody case are admissible substantively by statute under 750 ILCS 5/506(e) of the Dissolution act. In re Marriage of Gilbert, 355 Ill. App. 3d 104 (4th Dist. 2004); In re Daria W., 319 Ill. App. 3d 194 (3rd Dist. 2000). 506(c) concludes by stating that “no such statement, however, if uncorroborated and not subject to cross-examination shall be sufficient in and of itself to support a finding of abuse and neglect.”

(b) Such statements are also admissible, in a more restrictive fashion, under 735 ILCS 5/8-2601 the Code of Civil Procedure.

4. In Court Statements Of A Witnesses’ Mental Or Emotional State

(a) A lay witness may testify to his or her own mental state for the limited purpose of showing state of mind. People v. Keefe, 209 Ill. App. 3d 744 (1st Dist. 1991).


5. Impeachment By Evidence Of Conviction Of Crime

(a) A witnesses’ credibility may be attacked by evidence that a witness has been convicted of a felony or a misdemeanor involving dishonesty or false statement as long as the Court determines that the probative value of the evidence of the crime is not substantially outweighed by the danger of unfair prejudice. People v. Montgomery, 47 Ill. 2d 510 (1971).

(b) Illinois Rules of Evidence 609(a).

6. Lay Opinion Regarding The Value Of Personal Property

(a) A lay witness may give an opinion as to the present value of personal property, but the witnesses’ familiarity with the value of the property must be affirmatively established. State Farm v. Best in the W. Foods, 282 Ill. App. 3d 70 (1st Dist. 1996). In Kim v. Mercedes-BMW, 353 Ill. App. 3d 444 (1st Dist. 2004) the Court rejected the concept that all lay owners of personal property are “presumed” to know the value of said property. A lay witness, in order to give a value opinion, must establish an appropriate foundation by establishing, at a minimum, familiarity with the property, actual knowledge of the value of the property, and the basis of the knowledge of that value. In Razor v. Hyundai Motor America, 222 Ill. 2d 75 (2006) the Court held that a lay witness should be permitted to give her opinion as to the value of personal property (a vehicle) if she has sufficient personal knowledge of the property and its value. See also, Rose v. Mercedes-Benz U.S.A, LLC., 378 Ill. App. 3d 615 (1st Dist. 2007).

(b) Illinois Rules of Evidence 701.

7. Lay Opinion As To The Value Of Real Estate

(a) A sufficient foundation for a lay opinion as to the value of real estate must include familiarity with the property in question and knowledge of real estate values in the vicinity. Village of Lake Villa v. Stakovich, 211 Ill. 2d 106 (2004). Owning property in the area or vacinity can satisfy the requirement of value knowledge. Illinois Dept. of Public Works v. Oberlander, 42 Ill. 2d 410 (1969). Ownership of real estate usually indicates knowledge of the price paid for land, income generated from it, potential issues with the property, and is sufficient to give a lay person a reasonable idea of value. American Natl. Bank & Trust Co. v. City of North Chicago, 155 Ill. App. 3d 920 (1st Dist. 1987).


8. Lay Opinion As To Intoxication of The Other Party

(a) A lay person may properly give an opinion that the other party was intoxicated as long as it is based on personal observation and experience. People v. Robinson, 368 Ill. App. 3d 963 (1st Dist. 2006).


9. Expert Opinion As To The Value Of Real Estate

(a) An individual possessing expert qualifications as to real estate valuation should be treated as an expert witness and not as a lay opinion witness. Hence, comparable sales may be reasonably relied upon by a real estate appraiser expert in arriving at the basis of his or her opinion. City of Chicago v. Anthony, 136 Ill. 2d 169 (1990); Wilson v. Clark, 84 Ill. 2d 186 (1984).

(b) Illinois Rules of Evidence 703 and 704.

10. Expert Opinion Based Upon Out Of Court Reasonably Relied Upon Information

(a) An expert may give an opinion based upon out of court information reasonably relied upon in the expert’s field. “If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” Wilson v. Clark, 85 Ill. 2d 186 (1981). Reasonably relied upon facts or data constitutes substantive evidence only if otherwise admitted into evidence. City of Chicago v. Anthony, 136 Ill. 2d 169 (1990). Such facts or data not admitted into evidence by the Court may be considered “soley as a basis for expert opinion and not as substantive evidence.” City of Chicago v. Anthony, 136 Ill. 2d 169 (1990).


11. Opinion Testimony Of Guardian Ad Litem In Custody Case Based On Out Of Court Admissable And Inadmissable Evidence At Trial

(a) The guardian ad litem may give an opinion regarding who should be awarded custody based upon hearsay information, including the preference of the child and other information obtained out of court. A GAL is the “eyes and ears” of the Court. In re Marriage of Wycoff, 266 Ill. App. 3d 408 (4th Dist. 1994) 750 ILCS 5/506 (a)(2). The GAL protects the “best interest” of the child and can review and consider information regarding the child that is both admissible and inadmissible in Court. In re Marriage of Karonis, 296 Ill. App. 3d 86 (2nd Dist. 1998).


12. Opinion Testimony Of Lay Witness As To An Unfounded DCFS Investigation

(a) “…Not withstanding any other provisions of law to the contrary, an unfounded report shall not be admissible in any judicial or administrative proceeding or action. “ 325 ILCS 5/7.14.


13. Cumulative Evidence, Undue Delay and Unfair Prejudice Evidence

(a) Evidence that would otherwise meet the standard for relevancy may be excluded under certain circumstances. The circumstances may consist of unfair prejudice, confusion of the issues, undue delay, waste of time and the needless presentation of cumulative evidence. Gill v. Foster, 157 Ill. 2d 304 (1993); First Midwest Tr. Co v. Rogers, 296 Ill. App. 3d 416 (1st Dist. 1998). The admission of cumulative evidence is within the sound discretion of the trial court. Dellon v. Evanston Hosp. 199 Ill. 2d 483 (2002); Hubbard v. Sherman Hosp. 292 Ill. App. 3d 148 (1st Dist.1997). It is also within the trial court’s discretion to limit the number of expert witnesses. Dillon v. Evanston Hosp., 199 Ill. 2d 483 (2002); Yassin v. Certified Grocers of Illinois, 150 Ill. App. 3d 1052 (1st Dist. 1986); Moore v. Anchor Org. for Health Maint., 284 Ill. App. 3d 874 (1st Dist. 1996); Cetera v. DiFlippo, 404 Ill. App. 3d 20 (1st Dist. 2010). Relevant evidence may be excluded “if its prejudicial effect substantially outweighs its probative value.” People v. Baynes, 88 Ill. 2d 225 (1991). A finding on the record of the balancing test in Rule 403 is encouraged but not required. In re Commitment of Hooker, 2012 IL. App. (2d) 101007. A failure to conduct the balancing test under Rule 403 may result in a reversal. People v. Johnson, 406 Ill. App. 3d 805 (1st Dist. 2010).

(b) Illinois Rules of Evidence 401, 403.

14. Statements Made By Parties During Settlement Discussions

(a) Historically, admissions made by a party during settlement discussions were not excluded. Khatib v. McDonald, 87 Ill. App. 3d 1087 (1st Dist. 1980); Niehuss v. Merrill lynch, 143 Ill. App. 3d 444 (1st Dist. 1986). Illinois Rule of Evidence 408 (a)(2) now makes such admissions in settlement discussions inadmissable, along with the settlement discussions. The old case law was considered a trap for the unwary and an impediment to settlements. Graham, Handbook of Illinois Evidence, sec. 408.1, p. 302 (10th ed. 2010).


15. Statements Or Admissions Made By Parties During Mediation

(a) Statements made in mediation are not subject to discovery and are not admissible in evidence in any family law proceeding by statute. 710 ILCS 35/4. This statutory provision is similar to section 4 of the Uniform Mediation Act, 7A. Pt. II, Uniform Laws Annotated (master ed.). The obvious objective is the public policy of encouraging parties to talk freely in order to resolve their disputes.


16. Foundation Testimony For Business Records

(a) Business records are admitted as an exception to the hearsay prohibition if made at or near the time and if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business to prepare such a record as long as the record was made by a person within the business or with knowledge of information transmitted by a person within the business with knowledge of the acts or events. Illinois Rules of Evidence 803(6). This rule is consistent with Supreme Court Rule 236 (which excludes police accident reports as a business record but permits hospital and medical records to be admissible in civil proceedings as a business record). All circumstances of the writing or record, including the lack of personal knowledge of the entrant or maker, goes to weight and not to the admissibility of the document. Pieski v. Warchol Constr. Co., 111 Ill. App. 3d 641 (1st Dist. 1982). The modern trend is quite liberal as to the admission of business records as business becomes more complicated and transactions so difused that no person can identify any particular operation. Birch v. Drummer Twp., 139 Ill. App. 3d 397 (1st Dist. 1985). A person testifying as to the routine producing accuracy must be testifying to the

procedures of the business. Hence, a person simply receiving a document from a business could not lay a sufficient foundation for admitting the document as a business record of the issuing business. APA v. National Bank of Commerce, 374 Ill. App. 3d 1082 (1st Dist. 2007). A sufficient foundation for admitting records of regularly conducted business activity could be established by testimony of the custodian of the record or another qualified person familiar with the business and its mode of operation. Kimble v. Earle M. Jorgenson Co., 358 Ill. App. 3d 400 (1st Dist. 2005). The record must be made at or near the time of the event record as liberally interpreted. Talusek v. Illinois Cent. Gulf R.R.Co., 225 Ill. App. 3d 72 (1st Dist. 1993). See generally Graham Handbook of Illinois Evidence, sec. 803.6, pps. 882-900 (10th ed. 2010).


17. Foundation Testimony For Business Records And Public Records By Certification

(a) Illinois Rules of Evidence 803(6) and 803(8) provide that a proper foundation for both business records and public records may consist of a certification that complies with Illinois Rules of Evidence 902(11). That section provides that the original or a duplicate of a public or business record would be admissible if accompanied by a written certification by the custodial or other qualified person that the record was made at or near the time of the occurrence by or from information transmitted by a person with knowledge, the document was kept in the course of the regularly conducted activities, and the document was made by the regularly conducted activity as a regular practice. There is also a notice requirement and availability of inspection of the document requirement.

(b) Illinois Rules of Evidence 803 (6), 803 (8) and 902 (11).

18. Testimony of Lay Witnesses As To Who Should Be Awarded Custody

(a) Attorneys frequently ask the parties, grandparents, or friends who should be awarded custody. Assuming a proper foundation has been established for such a lay opinion under Illinois Rule of Evidence 701, the opinion could either be allowed by the Court as a proper lay opinion or excluded as not being helpful to the Court under the express language of 701.

(b) Illinois Rules Of Evidence 701.

19. Foundation For Computer Generated Records

(a) A sufficient foundation for computer generated or created records is that the electronic computer equipment is recognized as standard, the particular computer produces an accurate record when properly employed or operated, the computer equipment operated properly at the time, the entries were made in the regular course of business at or reasonably near the event by someone possessing personal knowledge, unless the Court determines the sources of information, method or time of preparation lack trustworthiness. Bachman v. General Motors Corp., 332 Ill. App. 3d 760 (4th Dist. 2002). See generally, Graham, Handbook of Illinois Evidence, sec. 901.9, p. 1061 (10th ed. 2010).

(b) Illinois Rules of Evidence 901 (9), 803 (6), 901.

20. Foundation For Faxed Documents

(a) A proper foundation for a faxed document is that the documents received accurately reflect the documents faxed or the documents faxed were accurately received and that the machines employed to send or receive the fax are capable of producing an accurate reproduction when properly employed and that the machines were properly employed. People v. Hagan, 145 Ill. 2d 287 (1991). See generally, Graham, Handbook of Illinois Evidence, sec. 901.9, p. 1061 (10th ed. 2010).


21. Foundation For E-Mails and Text Messages

(a) A sufficient foundation for an e-mail is through traditional common law methods such as the reply doctrine, distinctive characteristics, chain of custody, or a process system similar to the foundation for faxed documents. People v. Durnin, 357 Ill. App. 3d 193 (3rd Dist. 2005). A similar foundation is required for text messages. People v. Chromik, 408 Ill. App. 3d 1028 (3rd Dist. 2011). See generally, Graham, Handbook of Illinois Evidence, sec. 901.9, pp. 1061, 1062 (10th ed., 2010, 2014 supp.)


22. Foundation For Electronically Stored Social Media Information

(a) No Illinois case has directly addressed the foundation for social media and electronically stored evidence. Some Courts have analyzed social media evidence under the traditional rules related to hard copies. In Complete

Conference Coordinators, Inc., 394 Ill. App. 3d 105, 109 (2nd Dist. 2009) it was noted that e-mails could be authenticated “through conventional, widely accepted and common means.” In People v. Cironik, 408 Ill. App. 3d 1028, 1046-48 (3rd Dist. 2011) it was stated that a transcript of a text message could be authenticated with direct or circumstancial evidence showing that the transcript is what it purports to be. In In re Marriage of Perry, 2012 IL App (1st Dist. 113054, paras. 46,47) the Court found the proper foundation for electronic duplicates saved on a flash drive could be established under the traditional rules of evidence. See generally, McCann, Tips For Authenticating Social Media Evidence, 100 Illinois Bar Journal, p. 482, September, 2012. The party seeking to admit the e-mail does not need to show that the IP address from which the e-mail was sent was connected to the sender. Illinois Rules of Evidence 901(b)(4) illustrates that where a documents’ contents, in conjunction with other circumstances, reflect distinctive characteristics, the authenticity requirement is satisfied. People v. Diomedes, 2014 IL App. (2nd) 121080.

(b) Illinois Rules of Evidence 901 (b)(9) and 901 (b)(4).

23. Out of Court Statements To Police Officers Advising Of Incident

(a) In People v. Simms, 143 Ill. 2d 154 (1991) the Court stated that a police officer may recount the steps taken in the investigation of a crime scene, including information received from a police dispatch. Such “investigatory hearsay” is considered not as hearsay but only for the limited purpose of showing why the police officer arrived at the scene or acted as he or she did. Such background testimony has been frequently criticized. People v. Jura, 352 Ill. App. 3d 1080 (1st Dist. 2004). See generally, Graham, Handbook of Illinois Evidence, sec. 801.5, pp. 771-73 (10th ed. 2010).

(b) Illinois Rules of Evidence 801(c).

24. Expert Opinion Of Parental Alienation Syndrome

(a) If an expert offers a custody opinion based upon a diagnosis of or a finding of “parental alienation syndrome,” a Frye hearing may be required to determine if the opinion is based upon “a new or novel scientific methodology or principle…sufficiently established to have gained general acceptance in the particular field in which it belongs.” In In re Marriage of Bates, 212 Ill. 2d 489 (2004) the Court avoided deciding if parental alienation syndrome met the Frye requirement by finding that the trial court did not rely upon the PAS opinion of

Dr. Gardner. In most cases no Frye hearing will be needed because most custody experts do not make a diagnosis or finding of PAS, but simply find certain alienating factors exist on the part on one parent.


25. Foundation For Past Recollection Recorded

(a) A memorandum, record or document is admissible as an exception to the hearsay rule if the proponent can show that the witness once had personal knowledge, Barker v. Eagle Ford Ctrs, Inc. 261 Ill. App. 3d 1068 (2nd Dist. 1994), that the memorandum was made or adopted by the witness when fresh in her memory, People v. Speed, 315 Ill. App. 3d 511 (4th Dist. 2000), and that the witness currently has an insufficient recollection to testify fully and accurately and that the record or memorandum fails to refresh the current recollection. People v. Beasley, 307 Ill. App. 3d 200 (1st Dist. 1999). See generally, Graham, Handbook of Illinois Evidence, sec. 803.5, pp. 878-89 (10th ed. 2010).


26. Foundation For Present Recollection Refreshed

(a) A witness may refresh her memory by referring to a document while testifying when she is unable to testify to relevant facts. People v. Nickson, 58 Ill. App. 3d 470 (1st Dist. 1978). The document itself does not need to be admissible in evidence. People v. Van Dyk, 40 Ill. App. 3d 275 (1st Dist. 1976). The document need not have been prepared by the witness. Northern Ill. Gas Co. v. Dr. Vito Constr., 214 Ill. App. 3d 203 (1st Dist. 1991). See generally, Graham, Handbook of Illinois Evidence, sec. 612.1, pp 581—84(10th ed. 2010).


27. Foundation For Photographs or Video

(a) A sufficient foundation for photographs or video is the testimony of any person with personal knowledge of the image that at a relevant time the photograph or video is a fair and accurate representation of the object at the time. People v. Glisson, 359 Ill. App. 3d 962 (5th Dist. 2005). The presence of the photographer is not required, but the witness must have personal knowledge of what is depicted. People v. Holman, 103 Ill. 2d 133 (1984). Remoteness of time or changed conditions alone did not impact foundation as long as the trier of fact is

not misled. Procknow v. El Paso Golf Club, Inc., 253 Ill. App. 3d 387 (4th Dist. 1993).

(b) Illinois Rules of Evidence 1001 (2).

28. Impeachment Of A Party’s Own Witness

(a) A party may impeach his own witness by a prior inconsistent statement only upon a “showing of affirmative damage.” Illinois Rules of Evidence 607. A party may, however, impeach his own witness by other modes of impeachment, including a prior conviction, People v. Collins, 106 Ill. 2d 237 (1985) or by virtue of bias, interest or improper motive. People v. Williams, 147 Ill. 2d 173 (1991).


29. Impeachment: Collateral v. Noncollateral Matters

(a) Any permissible impeachable matter may be explored on cross examination. People v. Jackson, 391 Ill. App. 3d 11 (1st Dist. 2009). However, if the matter is considered collateral, the cross-examiner must accept the answer given by the witness. People v. Morgan, 142 Ill. 2d 410 (1991). If the matter is not collateral, extrinsic evidence may be introduced disputing the facts asserted in the examiner’s question. People v. Steptore, 51 Ill. 2d 208 (1972). Matters pertaining to the credibility of a witness, such as bias, interest, corruption, coercion, prior convictions, lack of personal knowledge, are not collateral and may be contradicted by other testimony. Herget Nat. Bk. of Pekin v. Johnson, 21 Ill. App. 3d 1024 (3rd Dist. 1974).

30. Good Faith Basis For Impeachment

(a) A good-faith basis is required on the part of the examining party as to the truth of matters contained in leading questions of a witness on cross-examination. People v. Sanchez, 240 Ill. App. 3d 533 (1st Dist. 1992). This concept also requires good faith in laying the foundation for impeachment, with the intent and ability to follow it up in the event of a denial. Kahtib v. McDonald, 87 Ill. App. 3d 1087 (1st Dist. 1980).

Scenario No. 1

Q. Dr. Johnson in arriving at your expert opinion on parental decision making and parent allocation of time, did you have a conversation with the children’s maternal grandmother, Ms. Jones?

A. Yes.

Q. When was the conversation?

A. On January 21, 2014 in the late afternoon.

Q. What did she tell you?

Objection, Your Honor…

Scenario No. 2

Q: Mr. Brown, are you one of the owners of 1206 E. Elm in Champaign, are you not?

A: Yes.

Q. Mr. Brown do you have an opinion as to the value of the former marital residence at 1206 E. Elm in Champaign as of July 1, 2014?

A. Yes.

Q. What is your opinion?

A. In my opinion the value of 1206 E. Elm in Champaign as of July1, 2014 is $425,000.00.

Objection and Motion to Strike, Your Honor…

Scenario No. 3

Q. Ms. Davis have you ever had the opportunity to discuss with your 12 year old son, Johnny, where he wants to live?

A. Yes.

Q. When?

A. The second week of August in 2014 on a Friday in the afternoon right after school, around 4:00 p.m.

Q. Was anyone else present?

A. No.

Q. How did this come about?

A. I told him that Daddy and I both loved him very much, that Judge Blockman would have to decide where he lives, and that we probably shouldn’t talk any further about this.

Q. What did he say?

A. He said please tell the Judge that I want to live with you very, very much.


Scenario No. 4

Q. Mr. Jones, in the late afternoon of Friday, April 9, 2014 did you have an opportunity to observe the Petitioner, Ms. Johnson?

A. Yes.

Q. Where did you see her?

A. I saw her in the parking lot of the Jones Dance Academy.

Q. Why were your there?

A. My children take lessons at the Academy and I was coming in to pick them up.

Q. Where were you when you observed Ms. Johnson?

A. I was in the second row of the parking lot on the south side of the building waiting for my kids’ lessons to get over.

Q. When did you first observe Ms. Johnson?

A. She pulled into the parking lot and parked about five feet from my vehicle.

Q. Was she driving?

A. Yes, she was driving a late model blue Mercedes Sedan.

Q. Was anyone in the car with her?

A. No.

Q. Did you talk to her?

A. Yes, we made small talk through our windows. She was also waiting to pick up her kids who were in the same dance class as my kids.

Q. Did you notice anything unusual about her?

A. Yes, her speech was slurred, her eyes were bloodshot, and she reeked of the smell of alcohol.

Q. Have you had an opportunity to observe people under the influence of alcohol?

A. Yes, many times.

Q. In your opinion was Ms. Johnson intoxicated on the date in question?

Objection, Your Honor…

Scenario No. 5

Q. Ms. Johnson did you talk your 12 year old son, David, on Sunday, February 12, 2014?

A. Yes.

Q. When?

A. Right after he returned from his Sunday parenting time with his father on that date around 6:30 p.m.

Q. Was anyone else present?

A. No.

Q. What did you say to him?

A. I asked him how his parenting time went with his father.

Q. What did he say?

A. He said that his father slapped him five times on the face and forcibly shoved him against the wall resulting in a huge bruise on his back because he was talking too much on the phone.

Objection, Motion to Strike, Your Honor…

Scenario No. 6

Q. Mr. Jones, you are seeking all parental decision making authority of your 10 year old son?

A. Yes.

Q. Isn’t it true, that five years ago on March 15, 2010, you pled guilty to misdemeanor theft in the Circuit Court of Champaign County in a case entitled People v. Jones, No 10-CM-212?

I object, Your Honor…

Scenario No. 7

Q. Ms. Johnson, do you remember attending a meeting with your husband on April 11, 2014 in the late afternoon in my office?

A. Yes.

Q. I was present, your attorney, Mr. Phipps, was present and you were present?

A. Right.

Q. And we were discussing the settlement of your case?

A. Yes.

Q. Didn’t you tell us at that time that the diamond bracelet you are wearing on your arm today was purchased by you and your husband for $35,000.00 five years ago as an investment since both of you were optimistic about the future of the gold market?

I object Your Honor…

Scenario No. 8

Q. Mr. Johnson, you were recently terminated from your $90,000.00 per year job at Wal-Mart?

A. Yes.

Q. I hand you what has been marked as “Exhibit F.” What is this?

A. This looks like my employment and attendance records while I was at Wal-Mart.

Q. Your Honor, I would offer “Exhibit F” into evidence to show that Mr. Johnson was fired for excessive absences on the dates noted therein.

Your Honor, I vigorously object…

Scenario No. 9

Q. Dr. Gardner, you are a retained expert for Mr. Johnson in his case, are you not?

A. Yes.

Q. And you have previously given us your opinion that parental allocation of decision making and the majority of parental time of the minor child, Bobby, should be given to Mr. Johnson?

A. Yes.

Q. In fact, didn’t you substantially base your opinion on a finding by you in this case of “parental alienation syndrome”?

A. Yes.

Q. You found that Bobby exhibited all the symptoms of this “syndrome” that you described for us?

A. Yes.

Q. You found he had been programmed or brainwashed by my client in a campaign of denigration of Mr. Johnson.

A. Yes.

Q. You concluded that therapy for Bobby would be useless as long as the child continued to live with my client and that the only recourse was a change of parental decision making to Mr. Johnson.

A. Yes.

Your Honor, I move to strike the testimony and opinion of

Dr. Gardner…

Scenario No. 10

Q. Officer Kelley on October 15, 2014 in the late evening you were at the residence at 1201 N. Maple in Champaign regarding an alleged incident that involved Mr. and Ms. Johnson?

A. Yes.

Q. How did you come to arrive at the scene?

A. I was on overnight duty that evening and I received a call from a 911 dispatcher.

Q. What were you told?

A. I was told that a domestic dispute had occurred, that the male resident at the address in question had beat up his wife and that she was screaming for help.


Scenario No. 11

Q. Mrs. Johnson your parents spent $125,000.00 on your wedding, did they not?

A. Yes.

Q. And because of the expensive wedding, you and your husband got lots of expensive wedding gifts, did you not?

A. Yes.

Q. In fact you received over a 1000 gifts?

A. Yes

Q. The wedding was 15 years ago?

A. Yes.

Q. Do you have an independent recollection of the exact gifts you received?

A. No.

Q. I show you what has been marked as “Exhibit A.” Would you review this document please?

A. Yes, I have reviewed this.

Q. Does this document refresh your recollection as to the gifts you received?

A. It doesn’t provide me sufficient recollection to testify fully and accurately.

Your Honor I would offer “Exhibit A” into evidence.

Your Honor, I object…

Scenario No. 12

Q: Mr. Innocent, your former wife was granted temporary possession of the former marital resident at 12 E. Johnson in Urbana, was she not?

A: Yes

Q: When did she finally move out of the Johnson Street resident?

A: June 12, 2014.

Q: When did you return to the former marital residence?

A: June 13, 2014.

Q: What did you observe about the condition of the premises when you returned?

A: It was a mess. There were dents and holes in the walls, garbage was stacked in the back yard and there were liquor bottles, beer bottles and cigarette butts all over the house, including my son’s room.

Q: Did you take any pictures when you returned?

A: Yes.

Q: I hand you what has been marked as Group Exhibit No. 8. What it this?

A: These are copies of 48 different pictures I took with my camera of the house on June 13, 2014.

Q: Your Honor, I offer Group Exhibit No. 8 into evidence.


Scenario No. 13

Q: Officer Holmes, were you the police officer dispatched to an alleged domestic disturbance on August 2, 2014 at my client’s residence at 912 W. Green Street in Champaign at around 8:00 p.m.?

A: Yes.

Q: What were you told when you received the dispatch?

A: I was told there was a fight between a couple undergoing a divorce at that address.

Q: Who was there when you arrived?

A: Ms. Jones, Mr. Jones and their child, Joey, approximately 13 years of age.

Q: Did you talk to Mr. Jones?

A: Yes.

Q: What did he say?

A: He said he was dropping Joey off from his parenting time when Ms. Jones started berating him for missing his child support payment.

Q: What else did he say?

A: He said that Ms. Jones slapped him in the face.

Q: Did you notice any marks on his face that looked like a slap?

A: No.

Q: Officer, I hand you what has been marked Exhibit No. 1 What is that?

A: That is the incident report I prepared when I got back to the station.

Q: Your Honor I offer Exhibit No. 1 into evidence.

Your Honor I object…

Scenario No. 14

Q: Ms. Jones, were you one of the nurses on duty when my client was in the hospital from August 1 – 4, 2014?

A: Yes.

Q: I hand you what has been marked as Petitioner’s Exhibit No. 2. What is this?

A: Those are my notes of observations of your client and the care I administered during the shifts notes.

Q: Were those notes prepared by you shortly after your shift ended?

A: Yes. I complete my notes immediately before I go off duty.

Q: Are you notes correct and accurate regarding the care you administered and the observations you made of my client?

A: Yes.

Your Honor, I move to admit Petitioner’s Exhibit No. 2 into evidence.


Scenario No. 15

Q: Ms. Duffus, did you talk to your husband after you picked up James from his parenting time with his father at 8:00 p.m. on August 20, 2014?

A: Yes.

Q: What did you talk about with him at that time?

A: I don’t remember.

Q: Will any document refresh your memory?

A: Maybe.

Q: I hand you your diary entries for 8/20/14 marked as Petitioner’s Exhibit No. 16. Would you please review that?

A: Yes.

Q: Is you recollection now refreshed?

A: No.

Q: Was it you practice in August of 2014 to maintain a diary of all contacts with your husband involving the child?

A: Yes.

Q: After your conversation with him on that date, did you make the diary entry noted on August 20, 2014?

A: Yes.

Q: How long after the conversation was the entry made?

A: As soon as I returned home, about 15 minutes after the conversation.

Q: Is that an accurate statement of what was said between you?

A: Yes.

Your Honor, I offer Petitioner’s Exhibit No. 16 into evidence.


Scenario No. 16

Q: Ms. Innocent, you are seeking all parental decision making authority of your minor child.

A: Yes.

Q: You consider yourself a good mother, do you not?

A: Yes.

Q: You would never drink alcoholic beverages or consume illegal drugs with your child present, would you?

A: No.

Q: I hand you what been marked as “Exhibit A”. Is that your Facebook post message and picture posted by you on February 15, 2014?

Objection your Honor, improper foundation.

Thank you to Judge Steven Nardulli and Judge Arnold Blockman

for their preparation of the materials, insight, and assistance in the

presentation of The Illinois Rules of Evidence segment of the

ISBA Family Law Update: A French Quarter Festival.