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Kevin O'Flaherty

Not all evidence can be considered in a given case, whether beneficial or not. In this article, we’ll discuss the types of problems that can create evidentiary considerations during the litigation process.

Ideally, we hope child custody cases progress smoothly with each side agreeing on terms and putting their child’s best interest first. Avoiding drawn-out litigation saves money and emotional stress, but sometimes both sides are out for blood and the process can become complicated. Anything from witnesses, documents, videos, etc, can and will be entered as evidence in support of one side or the other. However, there are instances when a given piece of evidence will be problematic, usually for legal reasons, and risk not being considered in the case, even though it would be beneficial to one party or another. Below are some examples:

  • Exclusion of Witness
  • Child Witness
  • Past Recollection Recorded
  • Failure to Produce Evidence or Witness
  • Demonstrative Evidence
  • Exhibits - Foundational Proof
  • Hearsay
  • Proof of Facts
  • Defense - Fifth Amendment

Exclusion of Witnesses

In this scenario one party is requesting the court order the exclusion of a given witness so that the witness cannot hear the testimony of other witnesses. Requesting the exclusion of a witness has long been used as a way to expose fabrication, inaccuracy, and collusion. However, an order to exclude a witness does not guarantee exclusion in the following scenarios and would have to be strongly considered by the court:

  • A natural person - This is an individual human being, as opposed to a legal entity;
  • An officer or employee of a party that is not a natural person, ie. a legal entity or business;
  • A person who is designated as an essential presence to the party’s cause;
  • A person authorized by law to be present

Child Witness - The main point to remember with a potential child witness is that age itself does not determine competency. Whether a child will be able to act as a witness is determined by evaluating the child’s intelligence, understanding, and moral sense.

Past Recollection Record - This refers to complications with regards to recorded information and the witness’s knowledge of the recorded information. In Illinois the prerequisites for admissibility as past recollection recorded are:

  1. Witness has no recollection of event or recording of event;
  2. Written reports fail to remind the witness of the event or recording;
  3. Timeliness of facts recorded in the report (recording should be at time of occurrence or shortly thereafter);
  4. Truth and accuracy around timeliness of the report must be verified.

Failure to produce evidence or witness - Failure to produce a witness can be problematic for multiple reasons, and either party may have a reason for not producing or calling on a witness. Two common issues are 1) if defendant’s party calls no witness, there SHOULD be no presumption that if that witness were called his or her testimony would unfavorable and 2) there SHOULD be no inference of adverse testimony if there is a reasonable excuse for the witness being unable to testify. In order to mitigate the impact of missing witnesses on a case, instruction from the court on missing witnesses can be given when four factors are present 

  1. Witness is under control of the party to be charged and can’t be produced;
  2. For some reason, the witness is not equally available to both parties;
  3. The witness’s testimony would be helpful, but he or she was not produced;
  4. No good reason for failure to produce the witness

Demonstrative Evidence

Because demonstrative evidence is not an actual real piece of evidence but rather an object, presentation, diagram or some other type of educational aid the court must decide on its admissibility.

Exhibits - Foundational Proof - Foundational proof refers to proof that lays the groundwork for the credibility of a piece of evidence/exhibit. For example, a business record or profit and loss sheet. It is the court’s responsibility to scrutinize the value of an exhibit and the foundational proof associated with it.

Hearsay - Hearsay is evidence that can’t be adequately substantiated, such as a report of another person’s words by a witness, or letters written by a doctor who was caring for a minor involved in a given case. 

Proof of Facts - As the term implies, we’re dealing with whether a fact can be proven and if it’s absolutely necessary to be proven in order to be considered by the jury. Some examples of issues regarding proof of fact include:

  • A fact may not need to be proven by evidence if well-argued and without denial by the opposing party;
  • Stipulations around a fact are ideally clear, evident and certain, and assented by both parties and their lawyers;
  • Courts often look with favor on any stipulations that may shorten the length of litigation, possibly introducing bias into evidence consideration
  • A lawyer may interview any normal witness but must seek consent before interviewing a treating physician or the lawyer may violate physician-patient privilege.

Fifth Amendment - Most of us have heard the phrase “I plead the fifth” but we don’t really understand what it means. In defense, pleading the fifth is basically a way of saying “I can’t answer this question, or give this evidence because it may incriminate me.” One could see how this could quickly complicate access to certain evidence in a case. However, action can be taken against a witness who pleads the fifth on grounds of self-incrimination if there is other evidence that exists to support the position of the opponent. 

While this list is not exhaustive it does include some of the more common evidentiary considerations in child custody cases in Illinois. Both parties must understand that not every piece of evidence they think should be included will make its way into litigation and conversely should understand that things they want to keep out of the litigation process may be forced to be included. For more information on child custody law in Illinois check out our article Illinois Parenting Laws 2020.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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