respectfully dissenting:
I would hold that the birth certificate was properly excluded from evidence and that the trial court did not abuse its discretion in refusing to exclude the testimony of James Storz.
My colleagues found that the birth certificate was relevant evidence of an essential element of the cause of action, namely the illegitimate birth of plaintiff’s child. The declarations, and lack thereof, contained in the birth certificate which relate to the parentage of the child are hearsay, and inadmissible to prove that element of the paternity action. Section 25 of the Vital Records Act (Ill. Rev. Stat. 1979, ch. IIN/b, section 73 — 25) outlines the permissible evidentiary uses of a birth certificate or certification of birth and thus the scope of the “records of 'vital statistics” hearsay exception as it relates to such documents. (See Cleary and Graham, Handbook of Illinois Evidence sec. 803.14, at 450 (3d ed. 1979).) Subsection 6 of that statute provides that “[a]ny certification or certified copy of a certificate issued in accordance with this section shall be considered as prima facie evidence of the facts therein stated ***.” Subsection 2 provides in pertinent part that “[t]he certification of birth shall contain only the name, sex, date of birth, and place of birth, of the person to whom it relates ***.” Our supreme court has interpreted these two provisions, which appeared in the prior statute dealing with vital records (Ill. Rev. Stat. 1955, ch. IllVz, par. 55), as limiting the evidentiary use of a certified record of birth (containing all the information on the birth certificate) to proof of only those facts which could properly be placed in a certification of birth. (See People ex rel. Moran v. Teolis (1960), 20 Ill. 2d 95, 105, 169 N.E.2d 232.) The information in the birth certificate relating to the parentage of the child could not be included in a certification and does not fall within the hearsay exception for records of vital statistics.
It is clear from the foundation which plaintiff’s counsel attempted to lay for the birth certificate that the document was not offered to prove the birth of the child out of wedlock, but, as plaintiff asserts in her brief, to prove plaintiff’s belief as to the identity of the father at the time the certificate was filled out and to thereby bolster her credibility as a witness. Plaintiffs state of mind when the certificate was made out was never at issue in this case, and the sole purpose of the offer was to have the hearsay statements contained in the certificate admitted into evidence.
The majority holds that the out-of-court declarations of the plaintiff in the certificate are not hearsay because the declarant was a witness at the trial and therefore was available for cross-examination. (Citing People v. Carpenter (1963), 28 Ill. 2d 116, 120-22, 190 N.E.2d 738, in support of this interpretation of the hearsay rule.) However, Carpenter involved the frequently heard objection that a statement is inadmissible if it was made “out of the presence of the [criminal] defendant.” In holding that this objection is essentially meaningless,1 the court went on to state that the “fundamental purpose of the hearsay rule was and is to test the real value of testimony by exposing the source of the assertion to cross-examination.” (28 Ill. 2d 116, 121.) However, the thrust of that opinion was that in most cases the presence of absence of the opposing party when an out-of-court statement is made is immaterial. That case does not explicitly propound a rule that every out-of-court statement by a declarant witness is nonhearsay simply because the declarant is available for cross-examination. Rather, the generally accepted rule is that the prior out-of-court statements of witnesses are not available for use as substantive evidence. (See McCoy v. Board of Fire & Police Commissioners (1977), 54 Ill. App. 3d 276, 281, 369 N.E.2d 278.) Such out-of-court statements have been characterized as “pure hearsay.” Kubisz v. Johnson (1975), 29 Ill. App. 3d 381, 383-84, 329 N.E.2d 815.
Frequently, a party’s out-of-court statements which are unfavorable to the party’s cause are allowed into evidence as substantive admissions. (See generally McCormick, Evidence sec. 262, at 628-31 (2d ed. 1972).) However, a party’s out-of-court statements which are consistent with his or her pleadings or in-court testimony do not receive the same treatment. Such declarations are commonly referred to as “self-serving” statements and are held inadmissible under the hearsay rule. (See People v. Colletti (1968), 101 Ill. App. 2d 51, 55, 242 N.E.2d 63.) Prior out-of-court statements which are consistent with the witness’ in court testimony are admissible only for purposes of rebutting a charge that the testimony is a recent fabrication or that some motive has arisen that would prompt the witness to testify falsely. (See People v. Powell (1973), 53 Ill. 2d 465, 474-75, 292 N.E.2d 409; Cleary and Graham, Handbook of Illinois Evidence sec. 611.14 at 319-20 (3d ed. 1979); McCormick, Evidence sec. 251, at 604; sec. 49, at 106 (2d ed. 1972); cf. 4 Wigmore sec. 1124, at 255 (Chadbourne rev. ed. 1972).) Under the Federal Rules of Evidence, prior consistent statements are classified as nonhearsay, and thus may be used as substantive evidence, but such statements may be offered only after a charge of recent fabrication has been made. Fed. R. Evid. 801(d)(1)(B).
Although the majority finds that defendant made a general attack on plaintiff’s veracity by contesting the paternity action, there is nothing in the record to suggest that defendant attempted the specific type of impeachment which would render the hearsay declarations in the birth certificate admissible. I would therefore hold that the trial court acted properly in excluding the birth certificate from evidence.
This case is the first Illinois opinion which has held that a trial court’s failure to apply the severe sanction of exclusion of a witness was an abuse of the trial court’s discretion. In Kirkwood v. Checker Taxi Co. (1973), 12 Ill. App. 3d 129, 298 N.E.2d 233, the plaintiffs failed to disclose the names of any of the nonparty witnesses to the automobile collision that was the subject of the action. The plaintiffs had answered interrogatories five months before trial. The surprise witness called by the plaintiffs was the only nonparty occurrence witness who testified in the case. She was the sister of one of the plaintiffs, and she had knowledge of at least three other nonparty witnesses to the collision who were not deposed and not called to testify. The witness was disclosed during trial and the defense was allowed to interview the witness for five minutes prior to her testimony. The court stated that there were strong indications of lack of good faith in the nondisclosure of the witness’ identity, that the “deposition” the defendants were allowed to take was inappropriately brief, that the defendants were severely prejudiced by the nondisclosure of the witness because the other nonparty witnesses would have been discovered through her, and that the defendants were also prejudiced because the court must have placed a great deal of reliance on the testimony of the only nonparty available to testify to the occurrence at issue. However, the court held that the trial court did not abuse its discretion in refusing to exclude the witness. (Kirkwood v. Checker Taxi Co. (1973), 12 Ill. App. 3d 129, 133.) While that holding was based in part on the fact that the trial judge was not informed at the time of his ruling as to the relationship of the witness to one of the plaintiffs or that she was an occurrence witness, that case nonetheless illustrates the extreme reluctance with which the sanction of witness exclusion should be applied.
In Kirkwood, the plaintiffs were aware of the existence of the witness, and probably the existence of the other occurrence witnesses, for months prior to trial. In the instant case, defendant contacted the witness a week or 10 days prior to trial. Defendant’s counsel did not speak to the witness, and thus had no chance to determine if the witness should be called, until the day before the witness was called. On the same day that he interviewed the witness, defendant’s counsel notified the court and opposing counsel that he intended to present Storz’ testimony, and plaintiff’s counsel was given the belated opportunity to take a full deposition of the witness. Although the record plainly shows that defendant and his counsel could have acted with a good deal more diligence and courtesy in making plaintiff aware of the existence of this witness, this conduct does not amount to the showing of deliberate concealment that was present in Kirkwood.
The instant case is also distinguishable from Kirkwood in that the delay in disclosure probably resulted in less prejudice to the opposing party. In Kirkwood the delay made it impossible for the defendants to depose or even contact two occurrence witnesses other than the witness who testified. Knowledgé of those witnesses would have at the least been helpful in preparing the defendant’s case for trial, and might have resulted in the presentation of testimony which would have been less favorable to the plaintiffs than the testimony of the witness that was called. Although plaintiff here would have surely benefited from an opportunity to investigate the basis of Storz’ testimony, there is nothing in the record to suggest that a whole class of important witnesses was made unavailable to plaintiff because of the delay. The prejudice to plaintiff that was worked by the delay is therefore far more speculative than the obvious prejudice to the defendants in Kirkwood.
Additionally, the surprise witness in Kirkwood was the only nonparty occurrence witness called at trial, and her testimony was undoubtedly given great weight by the trial court. In the instant case, it is difficult to ascertain what affect Storz’ testimony had on plaintiff’s case. His testimony on direct, if taken alone, would appear to be damaging to plaintiff. However, on cross-examination, plaintiff’s counsel asked Storz a series of questions concerning plaintiff’s physical attributes. Storz’ answers to these questions were all wildly inaccurate. That impeachment, taken with the vagueness of Storz’ testimony as a whole, might justify this court in concluding that the jury completely disregarded the testimony of this witness but still determined that plaintiff had not met her burden of proof.
Other Illinois cases which have dealt with the sanction of exclusion illustrate that the trial court’s field of discretion in the employment of this sanction is narrowly circumscribed. (See Mason v. Mundelein Lanes, Inc. (1979), 72 Ill. App. 3d 990, 993-94, 391 N.E.2d 151; Smith v. Realcoa Construction Co. (1973), 13 Ill. App. 3d 254, 259, 300 N.E.2d 855.) Although defendant’s attitude toward the discovery process cannot be condoned, the conduct of defendant and his counsel was not so egregious as to make exclusion of the witness appropriate. I would hold that the trial court did not abuse its discretion in allowing the witness to testify.
I would also hold that the verdict was not against the manifest weight of the evidence, and that the improper remarks of defendant’s counsel during closing argument were not prejudicial to plaintiff because of the curative remarks of counsel and of the court.
Therefore, I would affirm.
The genesis of this curious objection can be traced to several opinions of our supreme court. In People v. Schallman (1916), 273 Ill. 564, 113 N.E. 113, the court held that the sales records of a purveyor of stolen goods were inadmissible to prove that the defendant had knowingly purchased stolen property. The records had been dictated to the declarant/witness, a bookkeeper for the seller, at a time when the defendant was not present. The court stated that:
“Declarations out of court, or statements of any kind by a third person against the accused and made in his absence and without his knowledge, are inadmissible as evidence against him. The rule is elementary, and a violation of it is a violation of the accused’s constitutional right that he shall not only be informed of the nature of the charge against him but be permitted to meet the accusing witnesses face to face.” 273 Ill. 564, 569.
In People v. Blockburger (1933), 354 Ill. 301, 310, 188 N.E. 440, the court reiterated this rule in commenting on a witness examination which it found to be improper for several reasons other than the absence of the defendant when the statements which the prosecutor sought to elicit were made. In People v. Bennett (1953), 413 Ill. 601, 110 N.E.2d 175, the court again held that a statement made out of the defendant’s presence was inadmissible. The primary purpose for which the statement was offered in that case was to have the defendant’s silence when the statement was repeated to him construed as an admission of guilt.