BRINGING CHILDREN’S OUT-OF-COURT STATEMENTS INTO COURT: The Admissibility of Child Hearsay Statements in Custody Litigation David Butler, Associate Circuit Judge

HEARSAY Ill. Rules of Evidence 801

Rule 801(c)

• Definition: An out of court statement offered to prove the truth of the matter asserted.

• Rule: (Rule 802) Hearsay is not admissible (except when it is)

SUPREME COURT RULES • Illinois Rules of Evidence are a codification by the Illinois

Supreme Court of clearly established common law creating and interpreting rules of evidence.

• Prior Illinois Appellate and Supreme decisions are authority

in interpreting the Illinois Rules of Evidence.

HEARSAY EXCEPTIONS (under Supreme Court Rule 803) AFFECTING OUT-OF-COURT STATEMENTS BY A CHILD Commonly Asserted Exceptions Related to Child Hearsay Statements: • IRE 803(2) Excited Utterance • IRE 803(3) Then Existing Mental, Emotional, or Physical

Condition (State of Mind) • IRE 803(4) Statements for Purpose of Medical Diagnosis or

Treatment

Less Commonly Asserted Exceptions Related to Child Hearsay Statements • IRE 803(5) Recorded Recollection • IRE 803(6) Records of Regularly Conducted Activity

(Business Records) • IRE 236 Admission of Business Records in Evidence • IRE 803(7) Absence of Entry in Records of Regularly

Conducted Activity

Excited Utterance IRE 803(2) A statement relating to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition. • This evidence involves an in court witness repeating what

someone else said out of court.

Factors Relating to Admissibility of Excited Utterances

Other Factors – See Handout

• Lapse of Time In re Marriage of Ashby, 193 Ill.App.3d 366 (5th Dist. 1990)

• Declarant’s Motive to Fabricate People v. Simon, 2011 IL.App.

1st 091197 (2011) • Declarant’s Emotional State People v. Williams, 193 Ill.2d.306

(2000) (091197) • Nature of the Event People v. Stiff, 391 Ill.App.3d 494 (5th Dist.,

2009)

The general rule which has emerged from Illinois case law is that the statements of a non-testifying child-declarant to a witness identifying a person as having performed certain conduct which results in pain, or is stressful to the child-declarant, and made within a reasonable time of the complained-of conduct, meet the three-pronged test of admissibility as spontaneous declarations. In re: Marriage of Ashby , 193 Ill.App.3d 366, 375

Proof that a startling or exciting event occurred cannot be established solely based on the statement itself.

• People v. DeSomer, 2013 IL App (2d) 110663 • People v. Babbington, 286 Ill.App.3d 724 (1st Dist., 1997)

Then Existing Mental, Emotional, or Physical Condition (State of Mind) IRE 803(3) A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of declarant’s then existing state of mind, emotion, sensation, or physical condition to prove the state of mind, emotion, sensation, or physical condition of another declarant at that time or at any other time when such state of the other declarant is an issue in the action.

Declarant’s state of mind must be relevant. • People v. Kinnett 287 Ill.App.3d 709, 715 (2nd Dist., 1997)

(alleged child victim’s statements inadmissible because state failed to show how child’s state of mind was relevant);

• Guski vs. Raja, , 409 Ill.App.3d 686, 700 (1st. Dist., 2011); • People v. Munoz, Ill.App.3d 455, 481 (1st Dist. 2010)

Statements Admitted under the “State of Mind” exception to the hearsay rule are not substantive evidence of the conduct reported by the child. • Child hearsay statements are frequently offered to show the

effect of the conduct reported on the child; but that would depend on the accuracy of the statement by the child.

The child hearsay statement is only admissible to show the state of mind of the child declarant.

• People v. Munoz, Ill.App.3d 455 (1st Dist. 2010) • Rowe v. State Bank of Lombard, 247 Ill.App.3d 686(2nd Dist.,

1993). In Rowe, the court stated there was an inherent unreliability in admitting testimony of one person’s state of mind in order to gain insight into another person’s state of mind.

Child’s preference in custody litigation is relevant. • Under 750 ILCS 5/602(a)(2), one of the factors to be

considered by the court in making a custody determination is the wishes of the child as to his custodian.

Proof of Child’s Preference in Custody Litigation • In Camera interview of child by the judge 750 ILCS 5/604(a) • Report of Guardian ad Litem 750 ILCS 5/604(b) • Custody evaluation 750 ILCS 5/604.5 • Investigation Reports 750 ILCS 5/605 • Hearsay statements of the child.

Child hearsay statements admissible to show the child’s preference. • Hearsay evidence of the children’s preference is allowed as an

exception to the hearsay rule. In re Marriage of Gustafson, , 187 Illl.App.3d 551, 556 (4th Dist., 1989) citing In re Marriage of Rizzo, 95 Ill.App.3d 636 (1st. Dist., 1981) and In re Marriage of Sieck, 78 Ill.App.3d 204 (1st Dist. 1979)

In camera interview by judge versus other means of

determining the child’s preference of custodial parent.

• The court in In re the Marriage of Hefer, , 282 Ill.App.3d 73 (4th

Dist., 1996) made the following observation: The more sensitive courts do not specifically ask a child whether he prefers to live with his father or his mother. In re Marriage of Balzell, 207 Ill.App.3d 310, 314 (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, citing In re Marriage of Wycoff, 266 Ill.App.3d 408, 415-416 (1994).

In re Marriage of Wycoff, 266 Ill.App.3d 408 (4th Dist., 1994). • This case provides a detailed discussion of the significance of a

child’s preference and the various ways to ascertain the child’s preference.

Statements for Purposes of Medical Diagnosis of Treatment IRE 803 (4)

Statements made for purposes of medical treatment, or medical diagnosis in contemplation of treatment, and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment but, subject to Rule 703, not including statements made to a health care provider consulted solely for the purpose of preparing for litigation or obtaining testimony for trial, or is made for ___and is reasonably pertinent to ____medical diagnosis or treatment; and describes medical history; past or present symptoms or sensations; their inception; or their general cause.

Statements for Purposes or Medical Diagnosis or Treatment • Whether a statement is pertinent to diagnosis or treatment is within the trial

court’s discretion. People v. Oehrke, 369 Ill.App.3d 63,68 (1st. Dist. 2006).

• Identification of person causing injury generally not admissible. People v. Oehrke, p.70.

• Statement of events that did not cause the injury not admissible. People v.

Monroe, 366 Illl.App.3d 1080, 1091 (2d Dist. 2006)

• Includes statements in medical records. People v. Taylor, 409 Ill.App.3d 881 (1st Dist. 2011) Herron v. Anderson, 254 Ill.App.3d 365, 377 (1st Dist., 1994)

• Includes testimony from physicians and other medical personnel (nurses, physician assistants, paramedics) People v. Freeman, 404 Ill.App.3d 978 (1st Dist. 2010) People v. Anderson, 254 Ill.App.3d 365 (1st Dist., 1994)

• Testimony can include a review by one medical personnel of another’s notes or records. People v. McNeal, 405 Ill.App.3d 647 (1st Dist., 2010) (interpreting statute similar to IRE 803(4))

STATUTES PROVIDING FOR INVESTIGATIONS AND REPORTS IN CUSTODY LITIGATION • 750 ILCS 5/506 • 750 ILCS 5/604(b) • 750 ILCS 5/604.5 • 750 ILCS 5/605 • IL Sup Ct. Rule 215

750 ILCS 5/506 • § 506. Representation of child (a) Duties. In any proceedings involving the support, custody, visitation, education, parentage, property interest, or general welfare of a minor or dependent child, the court may, on its own motion or that of any party, appoint an attorney to serve in one of the following capacities to address the issues the court delineates: (2) Guardian ad litem. The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child. The report shall be made available to all parties. The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem’s report or recommendations. The guardian ad litem shall investigate the facts of the case and interview the child and the parties.

Representation of Child 5/606(a) (1) Attorney (2) Guardian ad litem (GAL) (3) Child Representative

• GAL is only representative under 5/606 that can make a recommendation to the court:

• GAL Report • GAL Testimony – Subject to cross examination • Current position of GAL under 5/606 represents a merger of

former GAL and Attorney for the child. • Communications to GAL are not confidential (as are

communications to child attorney and child representative)

750 ILCS 5/604 • § 604. Interviews (a) The court may interview the child in chambers to ascertain the child’s wishes as to his custodian and as to visitation. Counsel shall be present at the interview unless otherwise agreed upon by the parties. The court shall cause a court reporter to be present who shall make a complete record of the interview instantaneously to be apart of the record in this case. (b) The court may seek the advice of professional personnel, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to counsel. Counsel may examine, as a witness, any professional personnel consulted by the court, designated as a court’s witness. Professional personnel consulted by the court are subject to subpoena for the purposes of discovery, trial, or both….

750 ILCS 5/604.5 • § 604.5. Evaluation of Child’s best interest (a) In a proceeding for custody, visitation, or removal of a child from Illinois, upon notice and motion made within a reasonable time before trial, the court may order an evaluation concerning the best interest of the child as it relates to custody, visitation, or removal. The motion may be made by a party, a parent, the child’s custodian, the attorney for the child, the child’s guardian ad litem, or the child’s representative. The requested evaluation may be in place of or in addition to an evaluation conducted under subsection (b) of Section 604. The motion shall state the identity of the proposed evaluator and set forth the evaluator’s specialty or discipline. The court may refuse to order an evaluation by the proposed evaluator, but in that event, the court may permit the party seeking the evaluation to propose one or more other evaluators. (b) (c) (d) (e) (f)

750 ILCS 5/605 • §605. Investigations and reports (a) In contested custody proceedings, and in other custody proceedings if a parent or the child’s custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child. The investigation and report may be made by a child welfare agency approved by the department of Children and Family Services, but shall not be made by that department unless the court determines either that there is no child welfare agency available or that the parent or the child’s custodian is financially unable to pay for the investigation or report. (b) In preparing his report concerning a child, the investigator may consult any person who may have information about the child and his potential custodial arrangements. Under order of the court, the investigator may refer the child to professional personnel for diagnosis. The investigator may consult with and obtain information from medical, psychiatric or other expert persons who have served the child in the past, without obtaining the consent of the parent or the child's custodian. (c) The investigator shall mail the report to counsel, and to any party not represented by counsel, at least 10 days prior to the hearing. The court may examine and consider the investigator’s report in determining custody. The investigator shall make available to counsel, the investigator’s file of underlying data, reports, and the complete texts of diagnostic reports made to the investigator pursuant to the provisions of subsection (b) of this Section, and the names and addresses of all persons whom the investigator has consulted, as a court’s witness, for cross-examination. A party may not waive his right of cross-examination prior to the hearing.

Illinois Supreme Court Rule 215 • Rule 215. Physical and mental examination of parties and

other persons (a) Notice; Motion; Order. In any action in which the physical or mental condition of a party or of a person in the party’s custody or legal control is in controversy, the court upon notice and on motion made within a reasonable time before trial, may order such party to submit to a physical or mental examination by a licensed professional in a discipline related to the physical or mental condition which is involved….

STATUTES RELATING TO THE ADMISSIBILITY OF CHILD HEARSAY STATEMENTS

• 750 ILCS 5/606(e)

• 735 ILCS 5/8-2601

750 ILCS 5/606 • § 606. Hearings (e) Previous statements made by the child relating to any allegations that the child is an abused or neglected child within the meaning of the Abused and Neglected Child Reporting Act, or an abused or neglected minor within the meaning of the Juvenile Court Act of 1987, 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.

735 ILCS 5/8-2601 • § 8-2601. Admissibility of evidence, Out of court statements; Child

abuse (a) 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. (b) (c) The proponent of the statement shall give the adverse party reasonable notice of an intention to offer the statement and the particulars of the statement.