In an Illinois divorce, the parties’ testimony is predictable: I am great and my soon-to-be-ex-spouse is terrible. An Illinois divorce judge is going to need more and more credible information to make the appropriate conclusions. That information is going to come from third party witnesses that must be subpoenaed to testify.
Subpoenas that notify people that they must appear in court must be followed.
“Any witness shall respond to any lawful subpoena of which he or she has actual knowledge” Ill. Sup. Ct. R. 237(a)
Unfortunately, people do not always appear in court even if they are properly subpoenaed.
Imagine that your hearing has started and you have subpoenaed the appropriate witnesses: a police officer who was at the scene, a social worker who investigated the family, and the child’s counselor. The only problem is…not all of them show up to court to testify.
Do you ask for a continuance? Do you just take your chances with the limited testimony of just some of your witnesses?
The witnesses who actually are present cannot testify to facts that the other witnesses, in fact, saw or experienced.
Talking about what someone else said is not allowed in an Illinois court of law.
“”Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid. 801(a)
“Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Supreme Court, or by statute as provided in Rule 101.” Ill. R. Evid. 802(b)
But, perhaps, you could invoke an exception to hearsay that is often used in criminal cases in order to get your witness to testify to something the absent witness previously said.
“The collective knowledge doctrine permits an officer to stop, search, or arrest a suspect at the direction of another officer or police agency, even if the officer himself does not have firsthand knowledge of facts that amount to the necessary level of suspicion to permit the given action.” US v. Williams, 627 F. 3d 247 – Court of Appeals, 7th Circuit 2010
“Under the “collective- or imputed-knowledge” doctrine, information known to all of the police officers acting in concert can be examined when determining whether the officer initiating the stop had reasonable suspicion to justify a…stop.” People v. Ewing, 880 NE 2d 587 – Ill: Appellate Court, 4th Dist. 2007
If police officer # 1 tells the other police officer # 2, that the red car was seen speeding, police officer # 2 can rely on the collective knowledge doctrine to pull over the red car even though police officer # 2 did not see the car speeding.
At first glance, the collective knowledge doctrine is about police officers and the requisite reasonable suspicion to stop someone.
However, the collective knowledge doctrine is definitely not just for police officers.
Several federal ccourts have extended the collective-knowledge doctrine to situations involving a dispatch by a civilian 9-1-1 operator as opposed to another police officer. See United States v. Fernandez-Castillo, 324 F.3d 1114, 1118 (9th Cir.2003); United States v. Kaplansky, 42 F.3d 320, 327 (6th Cir.1994); United States v. Cutchin, 956 F.2d 1216, 1217-18 (D.C.Cir.1992).
“[T]he imputed-knowledge doctrine includes information contained in calls to 9-1-1 operators” People v. Ewing, 880 NE 2d 587 – Ill: Appellate Court, 4th Dist. 2007
The question is “was the information the officer (or whomever) reliable enough that the officer (or whomever) could rely on it and credibly testify that they relied on it?”
“The collective knowledge doctrine applies where (i) the officer taking the action objectively relies on the information received, (ii) the officer or agency providing the information knows facts sufficient to support the level of suspicion required to take the action, and (iii) the action is no more intrusive than would have been permissible for the officer requesting it.” People v. Spencer, Ill: Appellate Court, 1st Dist., 1st Div. 2021
Under the collective knowledge doctrine you can definitely ask one police officer what the other police officer (or 911 dispatcher) told them without encountering a hearsay objection. Why not apply that to other people who work in the same agency or agencies that reliably collaborate?
In theory, under the collective knowledge doctrine, you could ask one social worker in court what the other social worker reported to them. This would alleviate the need to call both social workers as witnesses in order to avoid a hearsay exception.
Why should Illinois family courts employ this criminal law doctrine to allow evidence into a court with radically different evidentiary standards?
Criminal defendants receive the strongest protections under the United States Constitution. The collective knowledge doctrine arises from and works in criminal cases because the collective knowledge doctrine makes sense and is efficient.
Is this a stretch? You bet it is. However, it beats sitting in court while looking like an idiot when your witness fails to show up.
It is not easy being creative in family law…but it is better than giving up and just going through the motions. If you would like to talk to a creative Illinois family law attorney contact my Chicago, Illinois family law firm today for a free consultation.
All credit for the creative theory of applying the collective knowledge doctrine to family law goes to Aaron Bundy who brought the collective knowledge doctrine and its family law applications to my attention.