Illinois Evidence with Objections
in Family Law Cases*
By: Gunnar J. Gitlin
The Gitlin Law Firm, P.C., Woodstock, Illinois
www.gitlinlawfirm.com
* This paper is based upon the same format at the NITA publication Illinois Evidence with Objections, Revised Second Edition, 2000, James P. Carey. Jim Carey was one of my most able professors at Loyola University of Chicago Law School -- teaching criminal law and procedure. There is now a third edition of this excellent resource (2003). Any family lawyer should make certain associates have this handy reference 4x6 booklet. Order from www.nita.org or call 800 225 6482. The NITA publication covers both criminal and civil objections.
Objection
·I object that the question is (ambiguous / vague)
Response
Generally, rephrase the question unless certain of the question's clarity.
Assuming Facts Not in Evidence
Objection
·I object. The question assumes a fact not in evidence. There has been no testimony that ....
Responses
·I will elicit the fact that ... from the witness in a separate question.
·This fact was proved during the earlier testimony of the witness / another witness who has testified.
Authentication of Writings, Photos, and Recordings
Objection
·I object. The exhibit has not been authenticated.
Response
·This exhibit was authenticated through testimony of ______________ who has testified that:
·the witness created the writing; or
·the witness was present when the writing was created and testified that it is in
substantially the same condition as at the time of its creation; or
·the witness knows the handwriting because he saw the author write or sign the
instrument; or
·the witness knows the handwriting by circumstantial evidence (state such
circumstantial evidence), or
·The witness was present at the time the tape recording, audio, or video was made;
or
·the witness saw the scene or items portrayed in the photographs at a relevant time
and that the photograph is a fair and accurate representation of what was seen; or
·the document is self authenticating as a (newspaper, official publication, certified
copy of public record, etc.)
·I request the court compare the handwriting in question with an admittedly authentic writing exemplar and find that it is the handwriting of _______________.
Explanation: As to day-in-the life videos, a significant case is IRMO Willis, 234 Ill. App. 3d 156, 174 Ill. Dec. 633, 599 N.E.2d 179 (3d Dist. 1992), where the trial court allowed the father to introduce into evidence a "day in the life” videotape depicting his two children with his girlfriend during visitation and also a videotape of one of the children shortly after the child had been with the mother. The appellate court ruled that the trial court erred in allowing the videotapes to be introduced into evidence. The court of review reasoned that what children have to say in custody proceedings should be limited to an in-chambers interview under section 604(a) of the IMDMA or the child should testify in open court. The Willis court stated:
Applying the above-mentioned principles, we find that the trial court erred in admitting the videotape into evidence. Cisarik v. Palos Community Hospital (1991), 144 Ill. 2d 339, 579 N.E.2d 873, does not apply here. In the context of a child custody proceeding, the legislature has specifically provided that children's testimony be taken either in open court or by means of an in-camera interview with the presence of counsel. This statutory framework demonstrates the legislature's overriding concern for protecting the welfare of children. Accordingly, we disapprove of the practice of videotaping children. It is error for the court to allow it. . . . We state in the strongest possible terms that the procedure of using day-in-the-life videotapes of young children in child custody proceedings must not be allowed.
Objection
·I object to the calling of this witness on the ground of incompetence to testify, because the witness lacks the ability to (state relevant reason) which has been shown on the voir dire of the witness.
·I move to strike the witness's testimony and object to further testimony on the ground that the witness is incompetent to testify in that his testimony has shown the inability to (state relevant reason).
Responses
·The witness is presumed competent and there has been no showing of inability on the part of the witness to perceive, remember, communicate or appreciate the truth.
·The witness is competent to testify and any questions regarding the witness's testimony capacity go to the weight of the evidence rather than the competence of the witness.
Explanation: Generally, all children over the age of 14 are presumed to be competent to testify.
Objection
·I object. The questions is compound.
Response
·I withdraw the questions and will ask separate questions.
Compromise / Offers to Compromise / Mediation Communication
Objection
·I object. The proffered evidence is evidence of compromise negotiations offered on a material issue in this case.
Response
·The evidence is admissible because:
·The evidence is not offered on liability or damages but to show bias or no undue
delay; or
·The evidence is an admission of an independent fact; or
·The evidence is proper impeachment because it contradicts a material point of the
testimony of the witness and therefore should be admitted into evidence for
impeachment purposes; or
·The evidence goes to the issue of the opposing party's unwillingness to
compromise which is admissible by Illinois case law (cited below).
Objection
·I object. The proffered evidence is evidence of a “mediation communication” and is therefore privileged barred from being admitted into evidence by the Uniform Mediation Act.
Response
·The evidence is admissible because the Illinois Uniform Mediation Act provides that, “evidence or information that is otherwise admissible... does not become inadmissible... solely by reason of its disclosure or use in a mediation.
Explanation: IRMO Toole, 273 Ill.App.3d 607, 210 Ill.Dec. 551, 653 N.E.2d 456 (2d Dist. 1995) held that evidence of a statement made by wife in a settlement offer, for the purpose of impeaching wife's testimony whether money received from husband's parents was a gift or a loan, may be admitted into evidence because of impeachment value. In Toole, the appellate court commented that "the statement in the [wife's] settlement offer contradicts a material point of [the wife's] testimony regarding whether the $44,000 from [the husband's] parents was a gift or a loan and, therefore, should have been admitted into evidence for impeachment purposes."
A good discussion of the law is in Stathis v. Gelderman, Inc., 295 Ill.App.3d 844, 692 N.E.2d 798 (1st Dist. 1998) which stated:
Offers of compromise or settlement generally are inadmissible at trial (Niehuss v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 143 Ill. App. 3d 444, 450, 492 N.E.2d 1356 (1986)) and such evidence must be barred if introduced to prove liability. McGrath v. Chicago & North Western Transportation Co., 190 Ill. App. 3d 276, 280, 546 N.E.2d 670 (1989). Statements otherwise made by a party or on his behalf during the course of negotiations, which are inconsistent with the party's present position, however, may be introduced in evidence against him. Niehuss, 143 Ill. App. 3d at 450. If such evidence is introduced to prove an issue other than liability, such as possible bias on the part of a witness, its admission rests within the discretion of the circuit court. McGrath, 190 Ill. App. 3d at 281.
Attorney's Fees: As to attorney's fees, IRMO Mantei, 222 Ill.App.3d 933, 164 Ill.Dec. 870, 583 N.E.2d 1192 (4th Dist. 1991), held that the trial court did not abuse its discretion in ordering each party to pay own fees where the fees were generated largely from the result of the parties' unwillingness to compromise. The decision stated, “There are times when the failure to compromise is frivolous. The parties should have been aware of the expenses they were incurring in order to split up the limited pot they were contesting. The trial court found neither party was absolved from the responsibility of paying for their own fees.”
The appellate court in In re Marriage of Passiales, 144 Ill.App. 3d 629, 494 N.E.2d 541, 98 Ill. Dec. 419 (1st. Dist. 2d. Div.1986) provides the controlling Illinois precedent for the issue of admitting pre-trial settlements into evidence to resolve attorney fee disputes. In Passiales, the court found that the circuit court did not abuse its discretion in refusing to allow respondent to make an offer of proof of petitioner's rejection of a settlement offer.
The Passiales court also found that the circuit court did not abuse its discretion in refusing to admit the respondent's evidence of the repudiated settlement, ruling that "[m]atters relating to offers of settlement or compromise are ordinarily inadmissible, but admission of other facts elicited incidentally during settlement discussions may be introduced as evidence." Passiales, 144 Ill.App. 3d at 640.
In IRMO Suriano, 324 Ill.App. 3d 839, 756 N.E.2d 382, 258 Ill. Dec. 400 (1st. Dist. 4th Div. 2001), the evidence respondent sought to introduce was not an incidental fact elicited during settlement talks; rather, respondent sought to establish that petitioner refused to agree with a proposed settlement. The appellate court stated:
Such evidence is inadmissible because it is a matter relating to an offer of compromise or negotiation. Passiales, 144 Ill.App. 3d at 640. Another reason for excluding matters relating to settlement is that "'public policy favors such compromises and in that light they should be considered inadmissible.'" Smiley v. Manchester Insurance & Indemnity Co., 49 Ill.App. 3d 675, 681, 364 N.E.2d 683 (1977), quoting Hill v. Hiles, 309 Ill.App. 321, 331, 32 N.E.2d 933 (1941).
Uniform Mediation Act: The Uniform Mediation Act, effective January 1, 2004, is at 710 ILCS 35/1 (paragraph 4) (effective date January 1, 2004).
Cross-Examination: Beyond the Scope
Objection
·I object. The question is beyond the proper scope of cross-examination.
Responses
·The subject matter of the question was raised when the witness testified on direct examination that (insert prior testimony)
·The question seeks to elicit information that is relevant to the credibility of the witness.
·I request the court allow inquiry outside of scope of cross-examination. I will conduct the inquiry of the witness as if on direct examination.
Eavesdropping Statute —
Introduction of Evidence Contrary to Statute
Objection
·I object. The Defendant is seeking to introduce evidence which is not allowed pursuant to the Illinois Eavesdropping Statute (720 ILCS 5/14-1 et seq.).
Responses
·This recording is not a violation of the Illinois Eavesdropping Statute (720 ILCS 5/14-1 et seq.) because.
·The guardian ad litem is allowed to testify based upon both admissible and non-admissible material. See IRMO Karonis (below) but not I believe this case is
questionable authority.
·The admissions are contained on a telephone answering machine device and
accordingly there is no conversation within the meaning of 720 ILCS 5/14-2(a)(1).
Explanation:
The eavesdropping statute provides in pertinent part that "[A] person commits eavesdropping when he . . . [u]ses an eavesdropping device to hear or record all or any part of any conversation unless he does so . . . with the consent of all of the parties to such conversation." 720 ILCS 5/14-2(a)(1). The statute further provides that any evidence obtained in violation of the eavesdropping statute "is not admissible in any civil or criminal trial." 720 ILCS 5/14-5.
IRMO Almquist, 299 Ill.App.3d 732, 234 Ill.Dec. 910, 704 N.E.2d 68 (3d Dist. 1998) involved a unique set of facts in which the father was allowed telephone visitation and the mother, in an effort to frustrate the father's visitation rights blared a tape recorded conversation of the father which was a suicide tape made years before. The appellate court ruled that the suicide tape was not a “conversation.” Almquist stated, “[T]he addition of a definition of "conversation" to the eavesdropping statute was an effort narrowly tailored to the goal of removing any expectation of privacy element from the crime of eavesdropping. It was not the legislature's intent to provide a definition of "conversation" so broad as to encompass any audible expression whatsoever.”
IRMO Karonis, 296 Ill.App.3d 86, 230 Ill.Dec. 531, 693 N.E.2d 1282 (2d Dist. 1998), held that the report of a GAL on child custody issue was proper despite the fact that the GAL listened to tapes of telephone conversations between the father and children and that the taping of the telephone conversations may have violated the Illinois eavesdropping statute. However, while this seemed to be the ruling of the decision, the case seemed to rely upon the fact that the mother was not harmed by the taping because she prevailed in the child custody issue. The case specifically noted that it was not called to answer the question of whether the GAL was committed a felony by listening to the tapes. What is remarkable about the case is the quote, “To the extent respondent asserts that the GALs cannot consider inadmissible evidence in forming their opinions, his argument is baseless. Section 506 of the Marriage and Dissolution of Marriage Act ... requires the GAL to defend and protect the best interest of the child whom he or she represents. 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. We fail to see any prejudice where the GAL listens to information that may be inadmissible at trial.”
Objection
·I object. The proffered exhibit has not been properly authenticated.
·I object. The proffered exhibit has not been shown to be:
·(photos) a fair and accurate depiction of the relevant scene; or
·a fair and accurate representation of an object in issue.
Response
·The demonstrative exhibit has been authenticated by the testimony of _____. The witness has testified that:
·The photograph shows a relevant scene as it appeared at a relevant time and the exhibit is a fair and accurate depiction of that scene;
Objection
·I object. The proffered exhibit is incompetent for the lack of proper foundation.
Response
·I have shown through the testimony of ______________ that:
·He perceived the exhibit at a relevant time; and
·the exhibit is the one perceived; and
·it is in substantially the same condition as it was at the relevant time.
Explanation: A chain of custody is not a necessary part of the foundation of a tangible object unless the object is not readily identifiable or is susceptible to alternation by tempering or substitution.
Objection
·I object to the introduction of the exhibit in that there is an improper foundation because:
·It is not relevant; or
·Authenticity has not been shown; or
·The original document rule has not been met; or
·The writing is hearsay.
Response
·The foundation requirements regarding relevant, authenticity, the original document rule and hearsay have been met through the testimony of ____________, who testified that (insert portion of relevant testimony.)
Objection
·Qualification Generally: I object to the qualification of the witness as an expert.
·Helpfulness of Understanding Factual Issue: I object to the admission of expert testimony because the discipline in which the witness purports to qualify will not provide information that is helpful to understanding any issue of fact.
·Outside Area of Qualification: I object to the admission of the witness's opinion because it is beyond the area of expertise in which he or she has been qualified.
·Credibility of Witness: I object to the conclusion that this particular witness is credible.
·General Acceptance: I object because the theory or process upon which the expert relies has not been shown to be generally accepted within the scientific community from which it is drawn.
·SCR 213(f) Objections -- Disclosure of Identity and Testimony of Witnesses:
·Failure to Disclose Opinions in Answers to SCR 213(f) Interrogatories on Direct Examination: I object. The subject matter of the witnesses testimony (and the opinions if an expert witness) on direct examination have not been disclosed in response to the opponent's answers to Supreme Court Rule 213(f) interrogatories. The information sought is of a:
·Lay Witness: [Witness giving only facts of lay opinion testimony]. Therefore, SCR 213(f) requires disclosure on the subjects on which the witness will testify. The disclosure must give reasonable notice of the testimony.
·Independent Expert Witness: [An
independent expert witness is a person giving expert testimony who is not a
party, party's employee or the party's retained expert.] Therefore, SCR 213(f)
requires disclosure of both the subject matters the expert will testify to as
well as the opinions the party expects to elicit. This has not been provided
and according to SCR 213(g), the information disclosed limits the testimony
that can be given on direct examination.
·Controlled Expert Witness: [A
controlled expert witness is a person giving expert testimony who is a party,
party's employee or the party's retained expert.] Therefore, SCR 213(f) requires
disclosure of the “subject matter on which the witness will testify, the
conclusions and opinions of the witness and the bases therefore, the qualifications
of the witness and any reports prepared by the witness about the case.”
·Bases for Expert Opinion Must be Disclosed: I object. The expert has not disclosed the basis for his opinion.
·Testimony to Rebut Other Experts Must
be Disclosed: I object. The expert has not disclosed the opinion
testimony which rebuts the opinions of our expert, ___________________. Such
disclosure is mandatory under Copeland
v. Stebco, 316 Ill.App.3d 932, 250 Ill.Dec 235, 738 N.E.2d 199
(1st Dist. 2000).
Responses
·I have shown that the witness is qualified as an expert in (insert field of expertise) through the witness's knowledge, skill, experience, training or education.
·I have shown that the area of expertise in which the witness is qualified is one that will be helpful to the court in determining a fact or conclusion in issue.
·General Acceptance: The theory (or process) on which the expert has relied has been shown to be accepted within the appropriate scientific community.
·Credibility of Witness: A witness may not testify that a particular witness is credible. In In Re B.J., 316 Ill.App.3d 193, 735 N.E.2d 1058 (2000), the appellate court ruled that while an expert may testify about behaviors typically exhibited by sexually abused children, the expert may not testify that a particular witness was credible. "See Simpkins, 297 Ill. App. 3d at 683, 697 N.E.2d at 312 (1998). Whether J.J. demonstrated behaviors typically exhibited by sexually abused children constitutes circumstantial evidence for the trier of fact to consider and give such weight as it deems fit. We reaffirm what we said in Simpkins: trial courts should reject the attempt to use purported expert testimony to bolster or attack a witness' credibility. Simpkins, 297 Ill. App. 3d at 683, 697 N.E.2d at 312. While concluding that Dr. French could not permissibly testify that J.J.'s testimony was unreliable, he could testify, as an expert, regarding the technique employed by those questioning J.J. Certainly, Dr. French could have disputed the validity of the questioning procedure by which J.J.'s responses were obtained and let the fact finder draw its own conclusions on whether to believe J.J.'s answers; however, by asserting that, due to the faulty testing procedure, J.J. was not a credible witness, he invaded the province of the fact finder." Similarly, Simpkins involved a case in which a child recanted on the witness stand. There a child protective agency worker could not testify about the frequency and reasons for recantations by child victims of sexual abuse because it was inadmissible comment on the veracity of the child's courtroom testimony -- which is a function for either judge or jury. That case involved hearsay statements of sexual abuse under pursuant to section 115-10 of the Criminal Code (725 ILCS 5/115-10).
·SCR 213(g) Responses:
·The opinions of this witness are allowed pursuant to SCR 213(g) because the opinions have been expressed in a deposition and therefore need not be specifically identified in a Rule 213(f) answers to interrogatories. I tender a copy of the deposition transcript to your honor showing that the opinions were provided in the discovery deposition of the opinion witness. Further authenticate deposition transcript as to signature, etc.
·Spurious Arguments:
·Argument Re No Change in Opinion: There is no duty to supplement a disclosure under Rule 213 when the opinion witness has not changed his or her opinion. / The basis or reason for an opinion is not an opinion under Rule 213.
·Response: SCR plainly requires not only that party make seasonable disclosure regarding new or different opinions held by an opinion witness, but also requires that the “bases” for any opinions be updated as well. Kotvan v. Kirk, 321 Ill.App. 3d 733, 747 N.E.2d 1045, 254 Ill. Dec. 633 (1st Dist. 2nd Div. 2001).
·Argument as to Opening Door in Cross: Counsel opened the door during cross-examination of my witness for the testimony elicited on direct.
·Response: Unless your opponent opens the door during cross-examination, opinions elicited on redirect must be disclosed under SCR 213. Regala v. Rush North Shore Medical Center, 323 Ill.App.3d 579, 752 N.E.2d 443, 256 Ill. Dec. 563 (1st Dist. 2001).
For a recent article discussing witness disclosure in Illinois see: "Witness Disclosure in Illinois," in the SIU Journal.
Query re SCR 215 Investigators and IMDMA 604.5 Evaluators: What is a SCR 215 expert (investigator) or an expert chosen under Section 604.5 of the IMDMA? Arguments can be made that each expert would be a controlled expert based upon the theory that the person is a party's "retained expert." The difference is that a party must give disclosure of the "subject matter on which the witness will testify, the conclusions and opinions of the witness and the bases therefore, the qualifications of the witness and any reports prepared by the witness about the case" instead of just the subject matter and opinions. The critical portion of the Supreme Court Rule provides that in considering the disclosure of an independent expert the court, the court must take "into account the limitations on the party’s knowledge of the facts known by and opinions held by the witness."
Explanation: See Wilson v. Clark, 84 Ill.2d 186, 417 N.E.2d 1322, 49 Ill. Dec. 308 (1981) which permits an expert witness to give his opinion on the basis of facts not in evidence, so long as those facts are of a type reasonably relied on by experts in the particular field in forming opinions or inferences upon the subject.
Frye Challenges: Illinois follows the Frye test requiring proof of general acceptance in the scientific community. The recent Illinois Supreme Court case is Donaldson v. Central Illinois Public Service Company (2002). The holding of the Donaldson case was that under the circumstances of the case it was harmless error not to hold a separate Frye hearing as to the testimony of the Plaintiff's experts. The case stated:
Illinois law is unequivocal: the exclusive test for the admission of expert testimony is governed by the standard first expressed in Frye. (Citations omitted.) The Frye standard, commonly called the “general acceptance” test, dictates that scientific evidence is only admissible at trial if the methodology or scientific principle upon which the opinion is based is “sufficiently established to have gained general acceptance in the particular field to which it belongs.” Frye, 293 F. At 1014.
Focus on Methodology — Not Conclusions: The court stated that with “general acceptance” the focus is on the underlying methodology used to generate the conclusion, “If the underlying method used to generate an expert's opinion are reasonably relied upon by the experts in the field, the fact finder may consider the opinion — despite the novelty of the conclusion rendered by the expert.” (Citations omitted).
General Acceptance Does not Mean Accepted by Majority of the Experts: “Simply stated, general acceptance does not require that the methodology be accepted by unanimity, consensus or even a majority of experts. A technique, however, is not “generally accepted” if it is experimental or of dubious validity. Thus, the Frye rule is meant to exclude methods new to science that undeservedly create a perception of certainty when the basis for the evidence or opinion is actually invalid.” The Frye test therefore applies only where the scientific principle, technique or test offered to support the conclusion is “new” or “novel.” The case then states, “Generally, however, a scientific technique is ‘new' or ‘novel' it is ‘original or striking' or does not resemble something formerly known or used.” (Citing Webster's Third New International Dictionary.)
While Daubert does not apply in Illinois (with the exception of the fourth prong, that is, general acceptance), note that the sub-rules per Daubert might be introduced but only in establishing whether the technique, etc., is generally accepted. Also note the footnote one in the Donaldson opinion which keeps the door slightly open for the court to potentially consider adoption of Daubert if the matter were properly raised at the trial court and appellate level.
1) Empirical Reliability: Whether “it can be (and had been) tested.” (“Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.”)
2) Peer Review: Whether the theory or technique has been subjected to peer review and publication.
3) Rate of Error: In the case of a particular scientific technique, the court ordinarily should consider the known potential rate of error.
4) General Acceptance: The “[G]eneral acceptance” factor. A reliability assessment does permit identification of a relevant scientific community and a determination of a degree of acceptance within that community.” Under Daubert, general acceptance: is not a precondition to the admissibility of evidence. Under Frye (and Donaldson) this is the focus of admissibility.
Whiting v. Coultrip, 324 Ill.App. 3d 161, 755 N.E.2d 494, 258 Ill. Dec. 111 (3rd Dist., 2001), cited the Cropmate decision as to the admission of scientific evidence in its decision that certain evidence was admissible. Whiting commented, “Because we find the Cropmate court's six-inquiry approach to be both an instructive, workable framework and a proper statement of the law as it now stands in Illinois with respect to the admission of novel scientific evidence, we apply the Cropmate factors to the facts of this case.” In Whiting the appellate court reversed the trial court's determination that certain novel scientific evidence was admissible because of the lack of foundation establishing that the expert used generally accepted and empirically tested methods. Whiting recaps these standards as:
1) What evidence is proffered?
2) Will the proffered evidence assist the trial court in understanding the evidence
to determine facts in issue or can the trial court use its own knowledge and
experience?
3) Does the proffered testimony constitute scientific evidence?
4) Is that scientific evidence novel or does it involve a firmly established
method of technique?
5) If the trial court determines the evidence is “novel” then, does
the evidence meets the Frye admissibility standard: i.e., is it generally
accepted in community?
I have eliminated the last standard — standard 6 — because it contained the Daubert standards. The preliminary standards 1-5, however, are useful in laying the foundation per Frye.
Opinions Outside of Scope of Expertise: A recent case which addressed opinions outside the scope of an individual's expertise is the 2004 Clayton v. Cook decision. There the First District appellate court held that trial court, in medical malpractice trial, abused its discretion when it failed to impose appropriate sanction when plaintiff's expert gave opinion on lack of supervision by hospital that was completely outside the opinion that had been disclosed in discovery. Further, although the court directed plaintiff's counsel to retract the error, they failed to do so. However, testimony of pathologist with regards to cause of death, without any opinion as to standard of care, was within his expertise and properly allowed. The appellate court discussed Supreme Court Rule 213(g). The opinion stated:
Illinois Supreme Court rules on discovery are mandatory rules of procedure subject to strict compliance by the parties. Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7, 21, 724 N.E.2d 115 (1999) (Seef); Department of Transportation v. Crull, 294 Ill. App. 3d 531, 537, 690 N.E.2d 143 (1998) (Crull). Discovery rules allow litigants to ascertain and rely upon the opinions of experts retained by their adversaries. Crull, 294 Ill. App. 3d at 537, citing Chicago & Illinois Midland Ry. Co. v. Crystal Lake Industrial Park, Inc., 225 Ill. App. 3d 653, 658, 588 N.E.2d 337 (1992). Parties have a duty to supplement seasonably or amend prior answers or responses whenever new or additional information subsequently becomes known to that party. 177 Ill. 2d R. 213(i). To allow either side to ignore the plain language of Rule 213 defeats its purpose and encourages tactical gamesmanship. Crull, 294 Ill. App. 3d at 537.
The Crull court stated, "[t]rial courts should be more reluctant under Rule 213 than they were under former Rule 220 (1) to permit the parties to deviate from the strict disclosure requirements, or (2) not to impose severe sanctions when such deviations occur." 294 Ill. App. 3d at 539. However, neither Rule 213 nor its committee comments provide the circuit court with a guideline describing how to formulate a remedy once a violation occurs. The most important function of a court of review is to provide direction to the circuit court as to how to address issues that arise at trial. Consequently, we next address the issue of what remedies a circuit court has available to it when a violation of Rule 213 occurs at trial.
The court then stated, "A circuit court has the discretion to shape a remedy following a violation of Rule 213, including the exclusion or limitation of the scope of expert testimony. Boland v. Kawasaki Motors Manufacturing Corp., USA, 309 Ill. App. 3d 645, 652-53, 722 N.E.2d 1234 (2000) (Boland). The formulation of a remedy should reflect the underlying purpose of Rule 213 by preventing unfair prejudice or the deprivation of a party's ability to prepare adequately his case through no fault of his own." The appellate court discussed the procedure following an objection under SCR 213:
First, upon a party's Rule 213 objection, the proponent of the evidence has the burden to prove the opinions were provided in a discovery deposition or Rule 213 interrogatory or answer. 177 Ill. 2d R. 213(g), (i); see also Official Reports Advance Sheet No. 8 (April 17, 2000), R. 213(g), eff. July 1, 2002. A circuit court has the discretion to review Rule 213 objections in chambers to determine whether opinions were disclosed properly. Seef, 311 Ill. App. 3d at 22.
Next, in the event the circuit court finds that a party has violated Rule 213 disclosure requirements and depending upon the severity of the violation, the opposing party has the option of moving to: (1) strike only the portion of the testimony that violates the rule; (2) strike the witness's entire testimony and bar the witness from testifying further; and (3) have a mistrial declared. The circuit court has the discretion to determine the appropriate remedy. Boland, 309 Ill. App. 3d at 652-53. The court must ensure that the applicable sanction allows for a fair trial rather than punish the party that committed the violation. Sobczak v. Flaska, 302 Ill. App. 3d 916, 926, 706 N.E.2d 990 (1998) (Sobczak); Flanagan v. Redondo, 231 Ill. App. 3d 956, 963, 595 N.E.2d 1077 (1991). Each case presents unique factual circumstances, which should be considered in determining whether a sanction is imposed. Boatmen's National Bank of Belleville v. Martin, 155 Ill. 2d 305, 314, 316-17, 614 N.E.2d 1194 (1993) (Boatmen's National Bank) (defendant was not prejudiced by undisclosed testimony because it was cumulative of other testimony).
Disclosure of Lay, Independent Expert and Controlled Expert Witnesses: Supreme Court Rule 213(f) provides that upon interrogatory a party must disclose the “identities and addresses” of witnesses who will testify at trial and must provide information as to broken down by the following categories: lay witnesses, independent expert witnesses and controlled expert witnesses.
1) Lay Witnesses. A "lay witness" is a person giving only fact or lay opinion testimony. For each lay witness, the party must identify the subjects on which the witness will testify. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party's knowledge of the facts known by and opinions held by the witness.
(2) Independent Expert Witnesses. An "independent expert witness" is a person giving expert testimony who is not the party, the party's current employee, or the party's retained expert. For each independent expert witness, the party must identify the subjects on which the witness will testify and the opinions the party expects to elicit. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party's knowledge of the facts known by and opinions held by the witness.
(3) Controlled Expert Witnesses. A "controlled expert witness" is a person giving expert testimony who is the party, the party's current employee, or the party's retained expert. For each controlled expert witness, the party must identify: (i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefore (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case.
SCR 213(g) relating to Deposition Answers: SCR 213(g) now provides:
Limitation on Testimony and Freedom to Cross-Examine. The information disclosed in answer to a Rule 213(f) interrogatory, or at deposition, limits the testimony that can be given by a witness on direct examination. Information expressed in a deposition need not be later specifically identified in a Rule 213(f) answer, but, upon objection at trial, the burden is on the proponent of the witness to prove the information was provided in a Rule 213(f) answer or in the deposition. Without making disclosure under this rule, however, a cross-examining party can elicit information, including opinions, from the witness. This freedom to cross-examine is subject to a restriction that applies in actions that involve multiple parties and multiple representation. In such actions, the cross-examining party may not elicit undisclosed information, including opinions, from the witness on an issue on which its position is aligned with that of the party doing the direct examination.
SCR 219(c)(iv) provides that as sanctions for failure to comply with discovery a witness may, “be barred from testifying concerning that issue.” Richard L. Miller, “An Introduction to Opinion Testimony Disclosures in Illinois,” See, Illinois Bar Journal, 89 Ill. B. J. 18 at 21 (Jan. 2001). See also, Warrender v. Millsop, 304 Ill.App.3d 260, 237 Ill.Dec. 882, 710 N.E.2d 512 (2d Dist. 1999), (Second District appellate court reversed when the trial court allowed a witness, who had not been properly disclosed under former Rule 213(g), to testify at trial).
Rule 213(i) now provides simply, “Duty to Supplement. A party has a duty to seasonably supplement or amend any prior answer or response whenever new or additional information subsequently becomes known to that party.”
Discovery Sanctions re Striking Expert's Testimony: Coleman v. Abella, 322 Ill.App. 3d 792, 752 N.E.2d 1150, 256 Ill. Dec. 908 (1st Dist., 5th Div. 2000), (Trial court did not abuse its discretion by entering Rule 219 discovery sanction striking plaintiff's expert's testimony at trial pursuant to SCR 213(i) when plaintiff's attorney failed to disclose supplemental materials supplied to expert after expert's deposition).
Coleman stated that Rule 213 provides for stricter standards of discovery compliance than former Rule 220. The 1993 Illinois Supreme Court case of Boatmen's National Bank of Belleville v. Martin, 155 Ill.2d 305, 185 Ill.Dec. 509, 614 N.E.2d 1194 provides for six factors for the court to consider in excluding such testimony: (1) surprise to the adverse party; (2) the prejudicial effect of the witness's testimony; (3) the nature of the witness's testimony; (4) the diligence of the adverse party; (5) whether the objection to the witness's testimony was timely; and (6) the good faith of the party calling the witness
Expert's Additional Work after Deposition / Disclosure of All the Bases of Opinions: Copeland v. Stebco, 316 Ill.App.3d 932, 250 Ill.Dec. 235, 738 N.E.2d 199 (1st Dist. 2000), holds that any additional work done by an expert after their deposition must be disclosed under Rule 213, even if the additional work done by the expert does not change their opinions (expert performed additional testing of product). See also Coleman (expert read additional depositions).
A party must disclose not only the specific opinions of their expert, but all the bases for those opinions. (See also Coleman and Kotvan v. Kirk, (1st Dist. 2001).
Liberal Construction per SCR 213(k) Versus “Strict Compliance”: Rule 213 disclosure requirements are mandatory and subject to strict compliance. Susnis v. Radfar, 317 Ill.App.3d 817, 251 Ill.Dec. 277, 39 N.E.2d 960 (1st Dist. 2000). It is not enough that the opinions disclosed addressed “almost the exact issues” as sought to be elicited during trial. It is probably that this is not good law in light of the portion of the 2002 amendments which reads, “Liberal Construction: This rule is to be liberally construed to do substantial justice between or among the parties.” SCR 213(k).
Discovery of Opinions During Cross-Examination: Counsel is entitled to rely upon disclosed opinions and the bases thereof and is prejudiced if undisclosed opinions are discovered during cross-examination Copeland.
Documents Produced During Discovery: The mere disclosure of a record during discovery does not constitute disclosure of an opinion or the bases for an opinion under Rule 213. If the information in a record sets forth an opinion or forms the basis for an opinion, it must be disclosed in answer to 213(f) and (g) interrogatories or in an opinion witness deposition. Kotvan.
Committee Comments 20 SCR 213(f): The key committee comments state: “The purpose of this paragraph is to prevent unfair surprise at trial, without creating an undue burden on the parties before trial.”
"Lay witnesses" include persons such as an eyewitness to a car accident. For witnesses in this category, the party must identify the "subjects" of testimony—meaning the topics, rather than a summary. An answer must describe the subjects sufficiently to give "reasonable notice" of the testimony, enabling the opposing attorney to decide whether to depose the witness, and on what topics. In the above example, a proper answer might state that the witness will testify about: "(1) the path of travel and speed of the vehicles before impact, (2) a description of the impact, and (3) the lighting and weather conditions at the time of the accident." The answer would not be proper if it said only that the witness will testify about: "the accident." Requiring disclosure of only the subjects of lay witness testimony represents a change in the former rule, which required detailed disclosures regarding the subject matter, conclusions, opinions, bases and qualifications of any witness giving any opinion testimony, including lay opinion testimony. Experience has shown that applying this detailed-disclosure requirement to lay witnesses creates a serious burden without corresponding benefit to the opposing party.
"Independent expert witnesses" include persons such as a police officer who gives expert testimony based on the officer's investigation of a car accident, or a doctor who gives expert testimony based on the doctor's treatment of the plaintiff's injuries. For witnesses in this category, the party must identify the "subjects" (meaning topics) on which the witness will testify and the "opinions" the party expects to elicit. The limitations on the party's knowledge of the facts known by and opinions held by the witness often will be important in applying the "reasonable notice" standard. For example, a treating doctor might refuse to speak with the plaintiff's attorney, and the doctor cannot be contacted by the defendant's attorney, so the opinions set forth in the medical records about diagnosis, prognosis, and cause of injury might be all that the two attorneys know about the doctor's opinions. In these circumstances, the party intending to call the doctor need set forth only a brief statement of the opinions it expects to elicit. On the other hand, a party might know that a treating doctor will testify about another doctor's compliance with the standard of care, or that a police officer will testify to an opinion based on work done outside the scope of the officer's initial investigation. In these examples, the opinions go beyond those that would be reasonably expected based on the witness' apparent involvement in the case. To prevent unfair surprise in circumstances like these, an answer must set forth a more detailed statement of the opinions the party expects to elicit. Requiring disclosure of only the "subjects" of testimony and the "opinions" the party expects to elicit represents a change in the former rule, which required detailed disclosures about the subject matter, conclusions, opinions, bases, and qualifications of all witnesses giving opinion testimony, including expert witnesses over whom the party has no control. Experience has shown that the detailed-disclosure requirement is too demanding for independent expert witnesses.
"Controlled expert witnesses" include persons such as retained experts. The party can count on full cooperation from the witnesses in this category, so the amended rule requires the party to provide all of the details required by the former rule. In particular, the requirement that the party identify the "subject matter" of the testimony means that the party must set forth the gist of the testimony on each topic the witness will address, as opposed to setting forth the topics alone.
A party may meet its disclosure obligation in part by incorporating prior statements or reports of the witness. The answer to the Rule 213(f) interrogatories served on behalf of a party may be sworn to by the party or the party's attorney.
Consultants: An expert who is a consultant and who has not been disclosed as a witness may not be compelled to give testimony unless the attorney has elected to call the expert as a witness. While this is clear according to Supreme Court Rules as well as the comments, it is also clear per case law. See, e.g., People v. Spiezer, 316 Ill.App.3d 75, 735 N.E.2d 1017, even expanding rule to criminal cases and stating, " In civil cases, parties are not entitled to discover the identities or opinions of nontestifying, consulting experts. See Costa v. Dresser Industries, Inc, 268 Ill. App. 3d 1 (1994). Indeed, the identity, opinions, and work product of a consultant are discoverable only upon a showing of "exceptional circumstances under which it is impracticable *** to obtain facts or opinions on the same subject matter by other means." 166 Ill. 2d R. 201(b)(3); see also Hickman, 329 U.S. at 512, 91 L. Ed. at 463, 67 S. Ct. at 394 ("[T]he general policy against invading the privacy of an attorney's course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order")."
New Case Law: There is an argument that the SCR 213(f) rules as to disclosure have become more lenient. However, a recent case offers a warning where the only disclosure was that the Plaintiff would testify to matters set forth in his complaint. Kim v. Mercedes Benz, (1st Dist., October 21, 2004) The appellate court there stated:
Here, regardless of the complaint's numerous allegations of the diminished value of the vehicle, plaintiff's generalized statement as to his proposed testimony created an unfair surprise with respect to the attempt to introduce testimony as to the diminished value of the ML 320. To allow plaintiff to disclose that he would testify as to matters set forth in the complaint would create an undue burden on defendant, especially given the limitation on plaintiff's personal knowledge upon which he was to rely for his proposed opinion regarding what he would have paid for the vehicle based on the alleged defects. Official Reports Advance Sheet No. 8 (April 17, 2002), R. 213(f), eff. July 1, 2002. A more detailed disclosure describing the specific nature of plaintiff's testimony would have allowed defense counsel to decide whether to depose plaintiff or whether to provide an opposing expert witness on the issue of diminished value.
Because plaintiff provided only a generalized statement describing his lay witness testimony, he failed to provide reasonable notice of the proposed testimony and, therefore, was not disclosed properly pursuant to Rule 213(f). Accordingly, the circuit court did not abuse its discretion and the proposed testimony was excluded properly.
Spurgeon v. Mruz, No. 1-04-1931 (1st Dist., June 28, 2005). In a medical malpractice trial, the Plaintiff waived objection to the defendant’s expert witness testifying without having been deposed when counsel failed to object at the time defendant presented witness at trial -- even though the Plaintiff had previously brought a motion to bar the expert from testifying. Further, since the trial court offered plaintiff opportunity to depose expert on eve of trial at the expense of defendant at time of plaintiff’s choosing, the trial court did not abuse its discretion when it denied motion in limine seeking to bar witness’ testimony. Instructively, the court stated:
A party who, prior to trial, unsuccessfully moves to bar certain evidence, must object again to the evidence when it is offered. Scassifero v. Glaser , 333 Ill. App. 3d 846, 855-56, 776 N.E.2d 859 (2002). Although the plaintiffs filed a motion in limine to bar Dr. DuBoe's testimony, they did not renew their objection when he was called to the stand to testify. The plaintiffs made several Rule 213 objections to specific portions of the witness's testimony, but they failed to object to the witness testifying at all. Therefore, plaintiffs have waived consideration of this issue on appeal.
Controlled Expert Can Elaborate at Trial: A recent case held that a controlled expert can elaborate on previously disclosed opinions "as long as the testimony states logical corollaries to the opinion rather than new reasons for it." Foley v. Fletcher (1st Dist., September 19, 2005). The opinion cites to previous case law stated:
A witness may elaborate on a disclosed opinion as long as the testimony states logical corollaries to the opinion, rather than new reasons for it. Barton v. Chicago & North Western Transportation Co., 325 Ill. App. 3d 1005, 1039, 757 N.E.2d 533 (2001). The testimony at trial must be encompassed by the original opinion. Prairie v. Snow Valley Health Resources, Inc., 324 Ill. App. 3d 568, 576, 755 N.E.2d 1021 (2001). A party's Rule 213 disclosures must "drop down to specifics." Sullivan , 209 Ill. 2d at 109. While it is improper for a trial court to allow previously undisclosed opinions that advance a new negligence theory (Clayton v. County of Cook, 346 Ill. App. 3d 367, 805 N.E.2d 222 (2003)), testimony is not a new opinion merely because it refers to a more precise time than appeared in the expert's Rule 213 disclosure (Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7, 23, 724 N.E.2d 115 (1999)). [Note by GJG: the Clayton opinion was modified on rehearing and is a February 2004 decision.)]
Objection
·I object. There has been no foundation to show the witness has personal knowledge of the matter about which he has been asked.
Response
·The witness has shown firsthand knowledge of the subject matter of the witness's testimony. A foundation has been laid which demonstrates the witness was in a position to know those items about which his testimony will be given.
Explanation: IRMO Shelton, 217 Ill.App.3d 26, 159 Ill.Dec. 939, 576 N.E.2d 862 (5th Dist. 1991) addressed whether the custodial parent who was seeking leave to remove the children was basing her testimony as to job opportunities and starting salaries on hearsay information. The appellate court stated that where a party testified that she applied for and investigated job opportunities and found out the amount of the starting salary, such testimony was not hearsay due to the wife's personal investigation and personal knowledge. The Plaintiff's testimony was that she “investigated and found out.”
Objection
·I object. The evidence is not relevant because it is such an isolated occurrence so that is insufficient to constitute a habit or routine practice.
Response
·This evidence is relevant because it shows:
·a consistent habit or routine practice;
·which raises a permissible inference that the party /organization likely acted in
this case according to the habit or routine practice.
Explanation: Habit is defined as conduct that becomes semiautomatic, invariably regular, and not merely a tendency to act in a given manner. Knecht v. Radiac Abrasives, Inc., 219 Ill.App.3d 979 (1991).
Objection
·I object. The question calls for a hearsay answer. (Real Witness Rule)
·I move to strike the answer as hearsay.
Response
·The statement is not being offered for the truth of the matter asserted, but rather it is offered to show that the statement was made. The making of the statement is relevant to show:
·the effect on a person who heard the statement; or
·a prior inconsistent statement; or
·the operative facts or a verbal act; or
·the knowledge of the declarant.
Explanation: Eliminate the traditional definition (out of court statement offered for the truth of the matter asserted). Put it at least in plain English, “Hearsay is evidence of an out of court statement that is offered to prove its truth.”
If the out of court statement is clearly offered for its truth the question is hearsay. If the out of court statement is not clearly offered for its truth, must the content of the out of court statement be believed in order for it to be relevant? If yes, the evidence is hearsay.
To simplify things, McElhaney calls the hearsay rule the “real witness” rule. He says: “Every time you think a question might call for hearsay, stop and ask yourself: Who is the real witness? Who do I want to cross examine to test what's being said?” Essentially, McElhaney substitutes the out of court statement phrase for the real witness tag line.
A case which discusses this distinction as to whether the statement is offered for its truth is Estate of Barbara Parks v. O'Young, M.D. and St. Bernard Hospital, 289 Ill.App. 3d 976, 682 N.E.2d 466, 224 Ill. Dec. 905 (1st Dist., 3rd Div. 1997), where the court cited Graham (801.5 at 647), “a statement is not hearsay when the fact that the statement is made is relevant for its effect on the listener without regard to the truth of the matter asserted.” In Parks the statement was determined not to be hearsay because it was offered to show the hospital's knowledge concerning misconduct on behalf of an employee.
Hearsay: Attacking and Supporting Credibility of Hearsay Declarant
Objection
·I object. The question seeks to attack the credibility of a person who has not appeared as a witness.
Response
·This impeachment of an out-of-court declarant is permissible to the same extent available to a testifying witness.
Explanation: See Cleary & Graham, §806.1. Impeachment by a prior inconsistent statement of a hearsay declarant is permitted despite the inability to confront the declarant with the inconsistency to afford him an opportunity to admit or deny. Therefore, assume hearsay is allowed backdoor through a custody evaluation. The person's bias, interest, corruption, coercion, prior criminal conviction or inconsistent statements may be shown.
Hearsay: Non-Hearsay Admissions
Objection
·I object. The question calls for a hearsay answer.
·I move to strike the answer as hearsay.
Responses
·The statement is not hearsay because I have shown that:
·the statement was made by the party opponent; or
·Statement Adopted by Act, Conduct, Silence — Vicarious Admission: the
statement was made by a person and was adopted by the party opponent as the
party's own by his act, conduct or silence, and it therefore a vicarious admission
of the party opponent; or
·Agent — Vicarious Admission: the statement was made by an agent authorized to
speak on behalf of a party opponent and is thus a various admission of the party;
or
·Person in Privity: the statement was made by a person in privity with a party.
Explanation: See Cleary & Graham, §802. Any statement made by a part of adopted by a party directly or vicariously is admissible against the party if the statement is relevant and its probative value is not outweighed by its prejudice. Note the historical rule that a guardian of an infant may not make admissions, including statements in pleadings, binding on a minor. See, Anderson v . Anderson, 39 Ill.App.2d 141, 187 N.E.2d 746 (1963).
Hearsay: Non-Hearsay Child Abuse (including Sexual Abuse)
Objection
·I object. The question calls for a hearsay answer.
·I move to strike the answer as hearsay.
Responses
·The statement is not hearsay because I have shown that the statements constitute, “previous statements made by the child relating to any allegation that the child is an abused or neglected child” within the meaning of the Abused and Neglected Child Reporting Act or the Juvenile Court Act of 1987. Section 607e) of the IMDMA provides that such statements are admissible in a hearing concerning custody or visitation with the child.
Explanation: Section 607(a) provides:
Previous statements made by the child relating to any allegations that the child is an abused or neglected child***shall be admissible in evidence in a hearing concerning custody of or visitation with the child. No such statement, however, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.
There is an issue whether such statements would be admissible within proceedings under the IDVA. The argument that such statements are admissible in proceedings under the IDVA include the fact that the IDVA provides that temporary custody in such proceedings are determined pursuant to the provisions of the IMDMA and the IPA of 1984 and that the court has the right to “determine the visitation rights, if any, of respondent in any case in which the court awards physical care or temporary legal custody of a child to petitioner.” 750 ILCS 60/214(b)(6). As to visitation subsection (7) provides that the court shall “not be limited to the standard set forth in Section 607.1 of the IMDMA.” Note, however, that Daria W. v. Bradley W., 317 Ill.App. 3d 194, 738 N.E.2d 974, 250 Ill. Dec. 505 (3d Dist. 2000), held that under section of the 5/606(e) of the IMDMA, a child's hearsay statements are properly admitted without a showing of the child's unavailability. The issue is the applicability of Section 8-2601 of the Code of Civil Procedure (735 ILCS 5/8-2601) as compared with Section 606(e) of the IMDMA.
Hearsay Statements of Abuse Re Another Child Under IMDMA Proceeding: The Section 606(e) provisions apply only to statements made by the child who is subject to the custody or visitation proceedings. IRMO Rudd, 293 Ill.App.3d 367, 227 Ill.Dec. 861, 688 N.E.2d 342 (4th Dist. 1997). If the statements do not fall within the ambit of Section 607(a) of the IMDMA, then the provisions of Section 8-2601(a) of the Illinois Code of Civil Procedure [735 ILCS 5/8-2601(a)] apply. Section 8-2601(a) provides:
An out-of-court statement made by a child under the age of 13 describing any act of child abuse or any conduct involving an unlawful sexual act performed in the presence of, with, by, or on the declarant child, or testimony by such of an out-of-court statement made by such child that he or she complained of such acts to another, is admissible in any civil proceeding, if: (1) the court conducts a hearing outside the presence of the jury and finds that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and (2) the child either: (i) testifies at the proceeding; or (ii) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.
The appellate court in Rudd found that the allegations of sexual abuse are relevant in determining the visitation rights of a parent, even if the allegations are not against the parent's child. Although the record was silent about a final determination of the allegations, the appellate court concluded, "Requiring the court to essentially ignore allegations of abuse would greatly enhance the risk of subjecting the child to a dangerous environment. We see no sound reason for precluding [the mother] from attempting to prove the allegations of abuse made against [the father]." The trial court should not have ruled on the hearsay objection until it conducted a hearing in which it heard and considered evidence related to the reliability of the niece's statements.
Hearsay Statements of Abuse in Juvenile Court Proceedings: In In re A.P., a Minor, 285 Ill.App.3d 897, 221 Ill.Dec. 565, 675 N.E.2d 989 (1997), GDR 97-81, the Illinois Supreme Court addressed the requirements to make hearsay statements by minors admissible under Section 2-18(4)(c) of the Juvenile Court Act [705 ILCS 405/2-18(4)(c)]. Section 2-18(4)(c) uses language comparable to the language in IMDMA Section 606(e):
Previous statements made by the minor relating to any allegations of abuse or neglect shall be admissible in evidence. However, no such statement, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.
See also, In Re C.C., 224 Ill.App.3d 207, 166 Ill.Dec. 540, 586 N.E.2d 498 (1st Dist., 5th Div. 1992), GDR 92-22
Hearsay Exception: Absence of Entry in Business Records
Objection
·I object. The question calls for a hearsay answer.
·I move to strike the answer as hearsay.
Responses
·The absence of a record in this record is admissible to show the non-occurrence of an event. I have shown through the testimony of _______________, who is the custodian of the business records, or other qualified person, that:
·a business record exists; and
·the matter which is not recorded in the record is of a kind for which a record
would regularly be made and preserved;
·the source of information or other circumstances fail to indicate a lack of
trustworthiness.
Explanation: Cleary & Graham, Sec. 803.15.
Hearsay Exception: Excited Utterance (Spontaneous Declaration)
Objection
·I object. The question calls for a hearsay answer.
·I move to strike the answer as hearsay.
Responses
·The statement is admissible as an excited utterance (or spontaneous declaration). I have shown through the testimony of ___________________ that the statement:
·relates to a startling event or condition; and
·the event was sufficiently startling to produce a spontaneous and unreflecting
statement; and
·there was no time to fabricate.
Explanation: IRMO L.R. and A.L.R., 202 Ill.App.3d 69, 147 Ill.Dec. 439, 559 N.E.2d 779 (1st Dist., 5th Div. 1990) held that the spontaneous declaration exception to the hearsay rule did not apply, based upon a totality of the circumstances, where child aged 3 did not repeat any statements indicating abuse to anyone other than the mother custodian and maternal grandmother. This case was decided prior to the amendments to Section 606(e) of the IMDMA.
IRMO Ashby, 193 Ill.App.3d 366, 140 Ill.Dec. 272, 549 N.E.2d 923 (5th Dist. 1990) held that spontaneous declaration of child relating to sexual abuse may be testified to by third party, as being within the spontaneous declaration exception three factors must be present: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (IRMO Theis (1984), 121 Ill.App.3d 1092, 1097, 460 N.E.2d 912, 916.)
Note, Illinois appears not to adopt the present sense impression exception to the hearsay rule. Parks, discussed above, stated, “we are aware of no Illinois cases that have applied that exception.” Referring to the 7th (1996) edition of Hunter's Handbook. The case stated, “moreover, even if such an exception existed under Illinois law, it would not be applicable in the instant case. The requirements are: 1) that the statement describe of explain the event perceived; 2) that the declarant must have in fact perceived the event described; and (3) that the description must be substantially contemporaneous with the events in question. This exception if it applied would allow admission of a declarant's report made to a third party concerning observations that the declarant is making at a time contemporaneous with those observations (e.g., tape recording of “911" telephone call.
Hearsay Exception: Former Testimony
Objection
·I object. The question calls for a hearsay answer.
·I move to strike the answer as hearsay.
Response
·The statement is admissible as former testimony. I have shown through the testimony of _____________ that:
·the witness is unavailable; and
·the statement is testimony given as a witness at another hearing of the same or
different proceeding, or in an evidence deposition in a civil case; and
·the actions are the same or involve the same issues;
·the parties are the same or are in privity.
Hearsay Exception: Judgment of Previous Conviction
Objection
·I object. The question calls for a hearsay answer.
·I move to strike the answer as hearsay.
Response
·The statement is admissible as a judgment of previous conviction. I have shown through a certified record, or testimony of _________________ that this statement is evidence of:
·a final judgment;
·entered after a trial or upon a plea of guilty;
·adjudging a person guilty of a serious crime;
·which is offered to prove a fact essential to sustain the judgment; and
·is offered against the convicted person who is a party in this, a later civil lawsuit.
Explanation: See IRMO Engelbach, 181 Ill.App.3d 563, 537 N.E.2d 372 (1989) (exception applies even where the conviction is not of a party in a later civil lawsuit. All felonies are serious crimes. Some misdemeanors may be as well. Battery has been held to be a serious crime. Cleary & Graham, Sec. 803.21.
Hearsay Exception: Market Report or Mortality Table
Objection
·I object. The document is an out-of-court statement and is therefore hearsay.
Response
·The statement is admissible as a market report or a mortality table. I have shown that the document is:
·a market
report admissible under 810 ILCS 5/2-724 (the UCC) as a report of an
official publication, trade journal; or
·in a newspaper or periodicals of general circulation published as the
reports of such established commodity market; or
·the document is a mortality or annuity table which
I have shown to be a standard authority.
Explanation: Cleary & Graham, Sec. 803.18. Mortality tables that are commonly used in divorce cases include the life tables issues by the National Center for Health Statistics. Other life tables of note in divorce tables include Group Annuity Life Tables (Gam 83) and Group Annuity Reserving - GAR-94 life tables. The GAR 94 tables are automatically adjusted for decreasing mortality (the fact that as time goes by people tend to live longer). The GAR 94 table reflects mortality as of 1994. This clearly is allowable as a life table The issue would be the inclusion of what is called a "projection scale AA" -- which includes declines in projected mortality. The two tables are them mathematically combined so that mortality reflects not only a person's age but the year in which the person attains that age.
Hearsay Exception: Public Records and Reports: Police Records
Objection
·I object. The document is hearsay and does not fall within the [business] records exception or
·Counsel has not laid a proper foundation for admission as a business record.
·I object. Police reports are not admissible into evidence.
Response
· I have laid a proper foundation for the record as a business record.
· Supreme Court Rule 236(b) is limited to exclusion of accident reports. The police report offered into evidence is not an accident report and foundation has been established for admission as a business record.
Explanation: Cleary & Graham, Sec. 803.13. Note, SCR 236(b) excludes in civil cases only police accident reports. It does not exclude all police reports. It provides, “Although police reports may otherwise be admissible in evidence under the law, subsection (a) of this rule does not allow such writings to be admitted as a record or memorandum made in the regular course of business. See also, Grubb, Sec. 6.160.
Hearsay Exception: Recorded Recollection
Objection
·I object. The question calls for a hearsay answer.
·I move to strike the answer as hearsay.
Response
·The statement is admissible as a recorded recollection.
·I have shown through the testimony of _____________________ that it is:
·a memorandum or record concerning a matter
·about which a witness once had knowledge
·but now has insufficient recollection, which cannot be refreshed by the
memorandum; and
·I have shown the memorandum to have been made or adopted by the witness
when the matter was fresh in the witness's memory and to reflect that knowledge
correctly.
Explanation: See Salcik v. Tassone, 236 Ill.App.3d 548 (1992) for the basic rule. See Cleary & Graham, Section 803.9.
Hearsay Exception: Records of
Regularly Conducted Business Activity (Business Records)
Objection
·I object. The question calls for a hearsay answer.
·I move to strike the answer as hearsay.
Response
·The statement is admissible as a business record pursuant to Supreme Court Rule 236(b). I have shown through the testimony of ______________, who is a custodial of the record or a person who has knowledge of the record keeping system, that the statement is contained in:
Manually Entered Records:
·a writing or record;
·which was made as a memorandum or record of any act, transaction or event;
·at or near the time of such act, transaction, occurrence or event (within a
reasonable time thereafter);
·was made in the regular course of the business; and
·it was the regular course of the business to make such record at the time of such
act, transaction, occurrence or event.
For Computer Generated Records add:
·the particular computer produces an accurate record when properly employed and
generated;
·the computer was properly employed and operated in the matter at hand; and
·the foundation testimony concerning the sources of information, method and time
of preparation indicates the trustworthiness of the evidence.
·I have shown the memorandum to have been made or adopted by the witness
when the matter was fresh in the witness's memory and to reflect that knowledge
correctly.
Explanation: See Salcik v. Tassone, 236 Ill.App. 3d 548, 603 N.E.2d 793, 177 Ill. Dec. 723 (1st Dist. 3d Div.1992) for the basic rule. See Cleary & Graham, Section 803.9.
IRMO DeLarco, 313 Ill.App.3d 107, 245 Ill.Dec. 921, 728 N.E.2d 1278 (2nd Dist. 2000), points out the difference between computer generated records and computer stored records:
Records directly generated by the computer itself are generally admissible as representing the tangible result of the computer's internal operations. Citation Omitted. All that need be shown is that the recording device was accurate and operated properly when the evidence was generated. In contrast to computer-generated records, printouts of computer-stored data constitute statements placed into the computer by out-of-court declarant and cannot be tested by cross-examination. Citation Omitted. Such information therefore should not be admissible absent an exception to the hearsay rule.
The decision then discusses the hearsay exception which would allow admission of computer stored records, that is, the business records exception to the hearsay rule. DeLarco states:
Tangible printouts of computer-stored data are admissible under the business exception to the hearsay rule if (1) the electronic computing equipment is recognized as standard, (2) the input is entered in the regular course of business reasonably close in time to the happening of the event recorded, and (3) the foundation testimony establishes that the sources of information, method and time of preparation indicate its trustworthiness and justify its admission. ***
Where a fact may be ascertained only by the inspection of a large number of documents comprised of detailed statements, a summary of those documents may be received into evidence, but the mass of documents must be placed in the hands of the court or be made accessible to the opposing party for inspection. Citation Omitted. When original documents are voluminous and cannot be conveniently examined to extract the fact to be proved, any competent witness who had seen the original may testify to the fact, provided it is capable of being determined by calculation. Citation Omitted. ***
We hold, therefore, in the case of computer-stored records, where the records sought to be admitted are summaries of original documents, such as the time slips in this case, the original documents must be in court or made available to the opposing party, and the party seeking the admission of the summaries must be able to provide the testimony of a competent witness or witnesses who have seen the original documents and can testify to the facts contained therein.
Hearsay Exception: Declaration Against Interest
Objection
·I object. The question calls for a hearsay answer.
·I move to strike the answer as hearsay.
Response
·This statement is admissible as a declaration against interest. I have shown through the testimony of __________________ that the statement:
·was made by a declarant who is now unavailable; and
·was, at the time of its making, so far contrary to the declarant's pecuniary or
proprietary interest; or
·so far tended to subject the declarant to criminal or civil liability or
·to render invalid a claim by the declarant against another; and
·that a reasonable person in the declarant's position would not have made this
statement unless he believed it to be true; and
See: Cleary & Graham, Supplement, p. 219.
Hearsay Exception: Statements Made
for Purpose of Medical Diagnosis or Treatment
Objection
·I object. The question calls for a hearsay answer.
·I move to strike the answer as hearsay.
Response
·This statement is admissible as a statement for the purpose of medical diagnosis or treatment. I have shown through the testimony of ________________ that the statement:
·was made for purposes of medical diagnosis or treatment;
·describes medical history; or describes past or present symptoms, pain, or
sensations; or describes the inception or general character of the cause or external
source thereof; and
·was reasonably pertinent to diagnosis or treatment.
See: Wilson v. Clark, Wilson v. Clark, 84 Ill.2d 186, 417 N.E.2d 1322, 49 Ill. Dec. 308 (1981). The key question is whether the statement is pathologically germane to the diagnosis or treatment of a medical patient. When and how the injury occurs is usually pertinent. Who caused the injury usually is not.
While hearsay evidence may be allowed for the purpose of medical diagnosis or treatment, keep in mind the child- witness must be determined to be competent to testify. IRMO Taylor, 202 Ill.App.3d 740, 147 Ill.Dec. 810, 559 N.E.2d 1150 (3d Dist. 1990) held that a non-treating physician could not testify to what a child told him when the child was three-years-old and not competent to testify. In Taylor, the appellate court ruled that the trial court erred in admitting the testimony of a physician. The trial court made a finding that the wife's current husband had disciplined the minor child by locking him in a dark closet which caused the child to have nightmares based upon testimony of a physician. The doctor testified that he took notes of his meeting with the child but he had no independent recollection of the conversation. When asked by father's counsel to refer to his notes, the trial court denied the hearsay objection of the mother's attorney. On cross-examination the doctor stated that the child had not been brought to him for treatment and that he had not given any medical advice or treatment. The doctor also testified that he could not determine if the three-year-old told the truth. The appellate court noted the exception for hearsay in reporting to a doctor one's complaints has to do with the fact that the person who is making the statement is otherwise reliable as a witness. The appellate court stated that the three-year-old child's competency to testify was clearly questionable, and that the testimony constituted hearsay not within any exception to the hearsay rule.
Hearsay Exception: Then Existing
Mental, Emotional or Physical Condition
(State of Mind Exception)
Objection
·I object. The question calls for a hearsay answer.
·I move to strike the answer as hearsay.
Response
·This statement is admissible as a statement of the then-existing mental, emotional or physical condition. I have shown through the testimony of ________________ that the statement:
·is of the declarant's then-existing:
·state of mind, or
emotions; or
sensation; or
physical condition.
Explanation: Hearsay evidence of the children's preferences is allowed as an exception to the general rule. IRMO Rizzo, 95 Ill.App.3d 636, 642, 420 N.E.2d 555, 560 (1st Dist. 1981); IRMO Siegel, 123 Ill.App. 3d 710, 463 N.E.2d 773 (1st Dist., 2d Div. 1984); and IRMO Deckard, 246 Ill.App.3d 427, 186 Ill.Dec. 270, 615 N.E.2d 1327 (4th Dist. 1993); and IRMO Gustafson,187 Ill.App.3d 551, 135 Ill.Dec. 192, 543 N.E.2d 575 (4th Dist. 1989) However, this evidence should be limited to state of mind and emotional state. (See also IRMO Sieck, 78 Ill.App.3d 204, 218, 396 N.E.2d 1214, 1224 (1979)). In Gustafson, following the court's ruling that the children would not be interviewed, the wife requested testimony from the maternal grandmother concerning statements made by the children. The maternal grandmother testified that the children told her that they were locked out of their home on occasion, that a child saw the father naked, that they were left at home alone when the father went bar hopping, etc. The trial court denied the father's application for change of custody. The appellate court reversed and remanded with directions. The appellate court addressed the hearsay evidence which was given by the maternal grandmother. The appellate court stated: "The trial court's reasoning would be an argument for always refusing to examine children in custody disputes. The position is contrary to respected authority, and ignores the elements to consider when deciding the propriety of having children testify. (Citations omitted.)" The appellate court continued:
Hearsay evidence of the children's preferences is allowed as an exception to the general rule. (In re Marriage of Rizzo, (1981), 95 Ill.App.3d 636, 642, 420 N.E.2d 555, 560.) However, this evidence should be limited to state of mind and emotional state. (See In re Marriage of Sieck (1979), 78 Ill.App.3d 204, 218, 396 N.E.2d 1214, 1224.) We know of no exception to the hearsay rule which would allow most of the testimony given by Helen Stone.
In Deckard, on appeal the father complained that the boys were not called as witnesses or examined in camera. The mother responded that the boys were in the physical custody of the father at the time of the hearing and he chose not to bring them to the hearing. The mother also pointed out that the father objected, on the basis of hearsay, to things which were said at a meeting where she and the father discussed the matter with the boys. The appellate court, siding with the mother, stated:
Conscientious parents may choose not to subject their children to testifying, either in court or in camera (citation omitted) and should not be forced to do so where such testimony would be unnecessary. If the boys' testimony would have supported his position, [the father] could have called them as easily as could [the mother]. Her failure to call them does not weigh against her. (Citation omitted.) Although not an issue on this appeal, we note that children's statements as to whom they prefer as a custodian, or where they desire to live, are admissible under the state-of-mind exception to the hearsay rule. (Citations omitted.)
IRMO Hefer, 282 Ill.App.3d 73, 217 Ill.Dec. 701, 667 N.E.2d 1094 (4th Dist. 1996), discusses allowance of the children's preferences via hearsay testimony. It states, “The more sensitive courts do not specifically ask a child whether he prefers to live with his father or his mother. IRMO Balzell, 207 Ill.App. 3d 310, 314, 152 Ill. Dec. 492, 494, 566 N.E.2d 20, 22 (3d. Dist.1991). A better way than an in camera hearing to get the child's preferences before the court may be through admission of the child's hearsay statements, through the testimony of a guardian ad litem, or through professional personnel. IRMO Wycoff, 266 Ill.App. 3d 408, 415-16, 203 Ill. Dec. 338, 345, 639 N.E.2d 897, 904 (4th Dist.1994). It also points out that there are problems with relying on the wishes of the child because it "provides an incentive for parental manipulation and intimidation of the child" plus "an opportunity for the child's manipulation of the parents.”
See IRMO Gustafson, 187 Ill.App.3d 551, 135 Ill.Dec. 192, 543 N.E.2d 575 (4th Dist. 1989), which held that while hearsay evidence of the children's custodial preference (limited to state of mind and emotional state exceptions) may be allowed as an exception to the general rule, evidence of parental misconduct should not be admitted through hearsay. (The maternal grandmother testified that the children told her that they were locked out of their home on occasion, that a child saw the father naked, that they were left at home alone when the father went bar hopping, etc.) This testimony was not allowed. The appellate court stated, “We know of no exception to the hearsay rule which would allow most of the testimony given by Helen Stone.”
A case limiting the perception that the rules of evidence may differ in custody cases compared to other cases is IRMO Kutinac, 182 Ill.App.3d 377, 131 Ill.Dec. 487, 538 N.E.2d 862 (2d Dist. 1989), where the Second District appellate court held that relaxation of hearsay rule not appropriate in proceedings involving best interest of the children. In Kutinac, the person who attempted to mediate the issue of removal submitted her written report and an addendum to the report. The addendum had copies of two letters attached. The letters addressed the physical condition of the mother and the children. Neither the mother or father objected at the hearing to the introduction of the report or addendum in evidence, but at the end of the hearing the father moved to strike the letters as hearsay. The trial judge did not allow the motion to strike the letters since the report of the mediator made reference to them. The appellate court held that this was error. It ruled that the letter was hearsay. It further stated:
In cases such as the one at bar in which the interests of children are at stake, it is vital for the trial judge to have as complete a picture of the facts as possible in order to determine what course is in the best interests of the children. Relaxation of the rule against hearsay is therefore not appropriate in proceedings involving the interests of children.
Introduction of Section 605 Report: IRMO Heldebrandt, 251 Ill.App.3d 950, 191 Ill.Dec. 190, 623 N.E.2d 780 (4th Dist. 1993) addressed whether the Section 605 Report Needed to be Introduced into evidence. On appeal the appellate court first takes up the issue raised by the father as to whether the report of the counselor must be formally introduced into evidence. The review court ruled that the counselor's report need not be formally introduced into evidence and stated:
[W]hen a court receives a report pursuant to section 605 of the Act, the court can consider the report as if the contents of that report had been given as direct testimony during a hearing. The court need not receive the report into evidence during a formal proceeding in order to consider the report when reviewing custody or visitation arrangements. Thus, section 605(c) of the Act provides that a report submitted under this section is an exception to the hearsay rule.
Such reports will generally contain references with regard to the children's custodial preferences. See also IRMO Noble, 192 Ill.App.3d 501, 139 Ill.Dec. 133, 548 N.E.2d 518 (2d Dist. 1989).
However, IRMO Hazard, 167 Ill.App.3d 61, 117 Ill.Dec. 770, 520 N.E.2d 1121 (1st Dist., 3d Div. 1988) held that the parts of Sec. 605 report which contained information that was received by third parties, or otherwise outside the personal knowledge of the investigator, were hearsay and properly struck where the report referred to statements by witnesses who were not called to testify at trial.
Impeachment: Bias, Interest, and Improper Motive
Objection
·(To questions posed on cross-examination) I object. Counsel is attempting to impeach the witness on improper grounds. The testimony attempted to be elicited is irrelevant.
·(To extrinsic evidence) I object. Counsel has not laid the proper foundation for use of extrinsic evidence to impeach. The witness whom counsel is attempting to impeach has:
·Not yet been called as a witness; or
·was not confronted with the alleged bias, interest or improper motive on cross-examination; or
·was confronted with alleged bias, interest or improper motive but did not deny its
existence.
Responses
·(to an objection posed on cross-examination) I am attempting to show that the witness is:
·biased; or
·is prejudiced; or
·has an interest in the outcome of this case; or
·has an improper motive for giving testimony.
·(to an objection posed to extrinsic evidence)
Impeachment: Learned Treatises
Objection
·I object. This is improper impeachment.
Responses
·This statement is admissible to impeach the expert witness as a statement contained in a learned treatise.
·I have called the statement to the attention of the expert; and
·the statement is contained in a treatise or periodical written for professional
colleagues;
·which has been established as a reliable authority by the testimony or admission
of the expert witness, by other expert testimony, or by judicial notice.
·has an interest in the outcome of this case; or
·has an improper motive for giving testimony.
Impeachment: Extrinsic Evidence
(The Collateral Evidence Rule)
Objection
·I object. This evidence is collateral.
Responses
·The evidence is non-collateral and is therefore proper extrinsic evidence of impeachment.
Explanation: Impeachment evidence offered outside of (extrinsic to) the cross-examination of the witness to be impeached is called extrinsic evidence. Extrinsic evidence is therefore defined by timing — at a time other than during cross. To be admissible, extrinsic evidence must be non-collateral, that is, relevant for any purpose other than mere contradiction of the witness. Certain matters are categorically non-collateral: bias, prior convictions, competency of an expert witness. Impeachment by a prior inconsistent statement and by contradiction are governed, on a case by case basis, by the basic definition of non-collateral: if relevant for some purpose other than the mere contradiction.
An additional foundation prerequisite applies to introduction of extrinsic evidence of bias and of a prior inconsistent statement. The proponent must first confront the witness with the facts which show bias or the statement during cross.
A recent discussion of collateral evidence is contained in the Whiting decision. It states:
Finally, we address whether the trial court erred when it allowed Officer Cunningham to testify to his general practice in filing a police report but limited cross-examination on the same. A witness may not be contradicted as to collateral, irrelevant or immaterial matters. Herget National Bank v. Johnson, 21 Ill.App. 3d 1024, 316 N.E.2d 191 (3d Dist.1974). The decision of whether a matter is collateral lies within the trial court's sound discretion, and a reviewing court will not reverse that decision unless there has been a clear abuse of discretion. People v. Breton, 237 Ill.App. 3d 355, 603 N.E.2d 1290, 177 Ill. Dec. 916 (2d. Dist. 1992). Plaintiff contends that Officer Cunningham should not have been allowed to testify that it was his general practice to file a police report if any party to an automobile accident complained of injury, because Cunningham could not remember the details of the accident at issue or whether plaintiff, in fact, [*20] complained of an injury. Given these circumstances, we agree that he should not have been allowed to testify. Even showing him photographs of the scene did not refresh his memory. Accordingly, we find that Officer Cunningham's testimony was not simply collateral but irrelevant. On remand, the trial court should prohibit similar testimony in any future litigation.
Impeachment: Impeachment of One's Own Witness
Objection
·I object. Counsel is impeaching his own witness.
Responses
·Under SCR 238, the credibility of a witness may be attacked by any party, including the party calling the witness.
Impeachment: Memory and Perception
Objection
·I object. The question seeks to elicit irrelevant information; the question involves improper impeachment.
Responses
·The question calls for an answer that will show the witness's inability to remember the events about which testimony has been given or his inability to perceive. This is proper cross-examination.
Impeachment: Prior Convictions
Objection
·I object. The preferred conviction is improper impeachment.
Responses
·The preferred conviction is admissible because:
·The conviction is for a crime punishable by imprisonment for more than one year
under the law of _________________ where the witness was convicted; or
·the conviction is for a crime, which involves dishonesty or false statement; and
·the probative value of the conviction is not substantially outweighed by the danger
of unfair prejudice; and
·less than 10 years have elapsed since the date of the conviction (or the release of
the witness from confinement — whichever date occurs later).
Explanation: See 735 ILCS 5/8-101 (method of proof in civil cases).
Impeachment: Prior Inconsistent Statements
Objection
·I object. The preferred statement is not inconsistent with the witness's testimony and is irrelevant.
Responses
·The statement is inconsistent with the witness's testimony, and I have a good faith basis for asking the questions.
Explanation: Prior inconsistent statements are not hearsay because what is relevant is the inconsistency — not the truth or falsity of the statement. “Inconsistent” is defined loosely: it includes, in addition to directly contradictory statements, those which have a reasonable tendency to discredit the witness's testimony. The examiner's good faith belief means that he must have the ability to prove that the statement was made if it is denied. If the statement is denied and extrinsic evidence is offered, the statement must be non-collateral, i.e., it must relate to something which is relevant apart from the contradiction.
Impeachment: Specific Acts of Misconduct
Objection
·I object. Evidence of specific instances of misconduct is an impermissible form of impeachment.
Response
·There is none.
Objection
·I object to the court judicially noticing __________________ in that:
·it is not generally known in this jurisdiction; and/or
·it is not so capable of verification as to be beyond reasonable controversy.
Response
·Judicial notice of _______________________ is appropriate because:
·the fact is generally known; or
·it is capable of verification so as to be beyond reasonable controversy.
Explanation: Section 2-18(6) of the Juvenile Court Act relating to judicial notice in juvenile court proceedings provides:
In any hearing under this Act, the court may take judicial notice of prior sworn testimony or evidence admitted in prior proceedings involving the same minor if (a) the parties were either represented by counsel at such prior proceedings or the right to counsel was knowingly waived and (b) the taking of judicial notice would not result in admitting hearsay evidence at a hearing where it would otherwise be prohibited. 705 ILCS 405/2-18(6).
In re J.G., 298 Ill.App.3d 617, 232 Ill.Dec. 720, 699 N.E.2d 167 (4th Dist. 1998), discussed the procedure to take in taking wholesale judicial notice of the proceedings in another cause of action. J.G. stated:
If the State wishes the trial court to take judicial notice of portions of the court file in a particular unfitness proceeding, the State can make a proffer to the court of the material requested to be noticed. Defense counsel should then be allowed an opportunity to object to the State's request. Such a procedure would serve to focus the trial court' attention on only those matters that are admissible under the rules of evidence, as well as make it easier for a reviewing court to determine what the trial court actually relied on in making its decision of unfitness.
See In Re A.B., 308 Ill.App.3d 227, 241 Ill.Dec. 487, 719 N.E.2d 348 (2d Dist. 1999), and also Interest of H.C., 305 Ill.App.3d 869, 239 Ill.Dec. 253, 713 N.E.2d 784 (4th Dist. 1999), GDR 99-79 . In both A.B. and H.C. the trial court took wholesale judicial notice of the entire underlying file instead of following the admonitions from J.G. that the party moving for judicial notice should attempt to introduce specific items from the underlying proceeding.
H.C. has an extended discussion of judicial notice. Justice Steigmann, in his Illinois Evidence Manual, previously noted that "the field of permissive judicial notice is almost limitless" and that "a court may take judicial notice of the proceedings and judgments in other cases in its court or in inferior courts within its jurisdiction where the other proceedings involve substantial and the same parties are the determinate of the pending cause." Robert J. Steigmann, Illinois Evidence Manual, 3d ed., § 2:01, § 2:15. Although Steigmann previously wrote that the field of judicial notice is almost limitless, the Fourth District recently placed some limits on judicial notice on juvenile proceedings. In Interest of J.G., (Steigmann was not on the panel in J.G.) The J.G. court held "Wholesale judicial notice of everything that took place prior to the unfitness hearing is unnecessary and inappropriate." This holding is based largely upon the Juvenile Court Act's not limiting the admissibility of information presented at review hearings. A trial court's decision about whether a parent is unfit must be based only on evidence that is properly admitted or admissible at the fitness hearing.
If all ten instances listed in the appendix to Justice Steigmann's dissent (referring to evidence or documents from the review hearings that were not presented