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Evidence that Should not be Admitted in an Order of Protection

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FACTS:On or about November and December, 2007, the Honorable Court ruled in favor of the adult Petitioner Mrs. Smith  and against the Respondent Mr. Jones, a minor, in providing Mrs. Smith with a Plenary Order of Protection.  

On December 1, 2007, Mrs. Smith returned to this Honorable Court without Mr. Jones present.Mrs. Smith did not want Mr. Jones to date her daughter, Danielle. Mrs. Smith requested that the Court modify the Order of Protection.  As a result of the Decembere 1, 2007 Modification to the Order of Protection, the High School removed the minor Mr. Jones from the School with police escort, and has prevented his return to school. The school has removed the minor Mr. Jones from attending high school.  The minor  should be able to attend school.  Ms. Jones has performed well within the school, and through because the School is a public institution Mr. Jones is entitled to public education.

Upon information and belief, Mrs. Smith proposed hearsay testimony, and other inadmissible evidence to this Honorable Court through the testimony provided in the November 30, 2007 and the December 1, 2007 court proceedings.  (

ARGUMENT

Ms. Smith  provided the Court with myriad examples of hearsay, to which there cannot be an exception drawn.  On the December 9, 2008 Court date and on the December 18, 2008 Court Date, her daughter Danielle was never present.  However, Mrs. Smith  testifies to a variety of statements that Danielle made.  Mrs. Smith  states she was not present for a conversation which took place allegedly between Danielle and Mr,. Jones  in which he broke up with her.  Mrs. Smith  testifies she was not there for the conversation, but goes on to extensively discuss the conversation.  Further, Mrs. Smith  testifies to statements made by Jack Stone.  Mr. Stone was not a witness.  Mr. Stone was not present in court, and Mr. Stone was never cross-examined. 

Mrs. Smith  simply states to the Court  statements that Mr. Stone told her..  Mrs. Smith   testifies to statements made by Ms. Bobbi Soxx , allegedly a psychiatrist.  A psychiatrist would fall under an expert opinion, which does not have a hearsay exception, and which has to be admitted into evidence under the criteria provided by the Illinois Supreme Court in Wilson v. Clark , 84 Ill. 2d 186, 49 Ill. Dec.308, 417 N.E.2d 1322 (1981).  In Wilson, the Illinois Supreme Court adopted the Federal Rules of Evidence Rule 703, which requires that the expert specifically testify, and not that hearsay evidence is proffered.  Further, Mrs. Smith  testifies as to the action of the “Police and School Officials.” .  Mrs. Smith  testifies to actions taken by police officers and school officials that are not in the courtroom, and not open to cross examination, and she does while providing a narrative to the court, which does not provide direct testimony.

In Illinois hearsay has been defined as follows: “Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein and ths resting for its value upon the credibility of the out of court asserter.” People v. Carpenter 28 Ill. 2d 116, 121, 190 N.E.2d 738 (1963). See also People v.. Rogers 81 Ill. 2d 571, 44 Ill. Dec. 254, 411 N.E.2d 223 (1980).

 Mrs. Smith  informs the Court of issues related to alleged conflict between Mr. Jones and Danielle predominantly with information involving her speaking with other people.  The Illinois Appellate Courts has specifically stated this type of testimony to be inadmissible hearsay.  For example in People v. Clifton 321 Ill. App. 3d 707, 750 N.E.2d 686 (1st Dist. 2000).   In Clifton, the person testifying only testified about evidence gathered from talking to different people, in this case different gang members, the Illinois Appellate Court emphatically stated this as inadmissible evidence.   Id. at  717.  The first of the foregoing statements is clearly based on inadmissible hearsay. Jenkins testified that he did not know Holton personally and that he learned of the conflict between Holton and Dorsey from talking to other gang members. Thus Jenkins described a conflict of which he had no personal knowledge and about which he learned from others who were not subject to cross-examination at trial. This meets the definition of rank hearsay. See People v. Rogers, 81 Ill.2d 571, 577, 44 Ill.Dec. 254, 411 N.E.2d 223, 226 (1980) (hearsay defined as “testimony of an out-of-court statement offered to establish the truth of the matter asserted therein, and resting for its value upon the credibility of the out-of-court asserter”). The mere fact that the sources of his information refer to more than one person does not change the character of this testimony as rank hearsay. Cf. **697 ***780 Galindo v. Riddell, Inc., 107 Ill.App.3d 139, 145, 62 Ill.Dec. 849, 437 N.E.2d 376, 381 (1982) (testimony about results of survey held to be inadmissible hearsay where survey not shown to have used methods generally accepted in scientific community to produce statistically accurate results). Furthermore, there can be no question that the statement was offered for the truth of the matter asserted: namely, that Holton was in a power conflict with Dorsey as a basis upon which Clifton and Galloway presumed Holton to be Dorsey's killer. See Rogers, 81 Ill.2d at 577, 44 Ill.Dec. 254, 411 N.E.2d at 226.  

In the instant case, Mrs. Smith  provides evidence that from a variety of people, and it is indeed provided for the truth of the matter asserted. Further, Mrs. Smith  provides documentary evidence that is not authenticated, and it is accepted into evidence over the objection of the Respondent, Mr. Jones. .  Mr. Jones objects to Mrs. Smith’s documentary evidence, based upon relevance and hearsay, as it relates to communication involving a third party, namely “DADA”, who is not part of this litigation.  This document  has not been provided to the opposing party before hand, and is not presented properly into evidence. Private writings and documents must be authenticated before they can be admitted into evidence. See Anderson v. Human Rights Com'n, 314 Ill. App. 3d 35, 42, 246 Ill. Dec. 843, 731 N.E.2d 371, 377 (1st Dist. 2000) (“petitioner failed to lay a proper foundation for the purpose of admitting into evidence her supporting documents”); Gardner v. Navistar Intern. Transp. Corp., 213 Ill. App. 3d 242, 157 Ill. Dec. 88, 571 N.E.2d 1107, 1110 (4th Dist. 1991).

 

The Honorable Court allows the improper, unauthenticated documentary evidence from the Petitioner Mrs.Smith into evidence, but sustains an objection to Respondent’s documentary evidence. Respondent’s evidence represents handwritten letters provided by Danielle, which would in fact be relevant, and which Mrs. Smith acknowledges is Danielle’s handwriting. .  The Honorable Court states that any discussion in Danielle’s words, made outside the Court  are hearsay when Danielle is not present for cross-examination.  However, the Court allowed Mrs. Smith to testify about Danielle’s feelings, psychological diagnosis, statements, expressions, and a host of other matters that are hearsay, and have been discussed previously.  

On December 1, 2007, Ms. Smith came into court ex parte without Mr. Jones.  She requested for the Court to Modify the previous Order of Protection.  Mrs. Smith testified about statements made to her by Seargeant  from the Police Department.  Also, Ms. Smith testified about statements made to her from the school,, without any representative from the school in court.  Ms. Larue stated that  “The school cannot guarantee that Mr. Jones will not come within eye contact with my daughter.”  .  However, pursuant to correspondence sent fromSchool, Ms. Staples, the assistant Principal the school “verified” that it was willing and able to make adjustments to Mr. Jones’s class schedule in order for Mr. Jones and Danielle to be separated.  In summary, Mrs Smith’s hearsay statements before this Honorable Court are both hearsay and inaccurate to considering what the School has communicated in correspondence.

Due to this evidence,Mrs. Jones testimony should be stricken.  Once her testimony is stricken, the underlying evidence necessitates that the Orders previously entered should be vacated and overturned.

Craig Cunningham is a published author in the areas of family and criminal law.  In addition to being an attorney, he is also a professor and will educate his clients regarding their case and the law. Clients are able to reach him through several outlets such as, email, cell phone, office line and fax. He will never keep his clients in the dark. With any new developments, he will definitely keep clients informed. For more information please visit at www.cunninghamlaw.cc

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