I just spent three days in Houston, Texas at the National Family Law Trial Institute’s Advanced Cross Examination training. The best family law trial attorneys in the nation coached me and other lawyers from across America on how to best cross-examine our opponent’s witnesses in a divorce trial. The below is an amalgamation of what I learned coupled with Illinois law about how to do the best cross-examination possible in an Illinois divorce.
What Is Cross-Examination In An Illinois Divorce Trial
If the parties to a divorce cannot come to an agreement on a matter, they must take the matter to trial.
A trial is the gathering of evidence by the court in order for that evidence to be applied to laws and, thus, render a just conclusion.
Evidence in trial is submitted via testimony of witnesses.
“Oral testimony in actions seeking equitable relief. On the trial of every action seeking equitable relief, oral testimony shall be taken when desired by either party.” 735 ILCS 5/2-1112
“[T]estimony is evidence.” People ex rel. Hartigan v. ILL. COMMERCE COM’N, 592 NE 2d 1066 – Ill: Supreme Court 1992
After testimony is presented by one side in an Illinois trial, the opposing side has the opportunity to cross-examine that witness.
Cross-examination is “when a witness is examined by the opposing party in the suit before the court.” Black’s Law Dictionary (10th ed. 2014)
“Cross-examination is the primary method by which a witness’s believability and credibility may be challenged.” People v. Myles, 2020 IL App (1st) 171964, ¶ 20
Cross-examination is mandatory under Illinois law.
“The [witness] who takes the stand and testifies in his own behalf in a…case not only offers himself as a witness in his own behalf but thereby subjects himself to legitimate cross-examination.” THE PEOPLE v. Burris, 273 NE 2d 605 – Ill: Supreme Court 1971
“In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U.S. 254, 269 (1970)
Failure to cooperate on cross-examination means the initial testimony elicited on direct-examination may be struck.
If a witness doesn’t answer questions on cross examination, a “court’s decision to strike the [direct-examination] testimony [will be deemed] appropriate.” People v. Figueroa, 719 NE 2d 108 – Ill: Appellate Court, 1st Dist., 5th Div. 1999
Cross-examination covers the same matters that direct-examination covered but may include further explanation…or more likely explanation of why the testimony is false, wrong or biased.
“Although cross-examination is generally limited to matters inquired into on direct examination, it may develop all circumstances within the knowledge of the witness that explain, qualify, discredit, or destroy his direct testimony.” People v. Figueroa, 719 NE 2d 108 – Ill: Appellate Court, 1st Dist., 5th Div. 1999
The scope of a cross-examination should never be narrowly construed. The whole point of cross-examination is to find stuff out.
“The cross-examination of a witness is necessarily exploratory and the attorney often cannot know in advance what facts may be elicited on crossexamination.” People v. Kellas, 72 Ill. App. 3d 445, 454 (1979)
There are three types of cross-examination:
1. Constructive Cross-Examination.
Constructive cross-examination is where you take the witness the opposing side just put on and you elicit facts that help your case from that witness. This is especially helpful because if the opposing side’s witness buttresses your case, there is no more credible witness than that.
Let’s get real. Your opponent called this person as THEIR witness. THEY prepped the witness. The witness is on THEIR side. The witness is not going to be giving you testimony that can help your case.
Your opponent should foresee the possibility of you trying to glean even a sliver of favorable information from their witness. Therefore, your opponent will not question their witnesses on subject matters which could be helpful to your case. If the matter was not presented on direct examination, the matter cannot be addressed on cross-examination.
“Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness, which include matters within the knowledge of the witness that explain, qualify, discredit or destroy the witness’s direct testimony. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.” Ill. R. Evid. 611
2. Treading Water Cross-Examination.
When an opponent’s witness presents a perfectly unimpeachable direct where no further question could either support your case or hurt theirs, waiving cross-examination is the equivalent of applause. Therefore, a few cursory questions on cross-examination which elicit nothing of real value may be necessary so as not to further bolster the testimony with your silence
3. Destructive Cross-Examination.
90% of cross-examinations will be destructive cross-examinations. Destructive cross-examinations attack the testimony and credibility of your opponent’s witness.
The point of a destructive cross-examination is two part: 1) to disprove the witnesses testimony or 2) to impeach your opponent’s witness either directly or by implication.
Disproving a witnesses own testimony will be specific to the facts of each case. A father may say that he sees his children every weekend but neglects to add that he sees the children at his mother’s house and then leaves each night with his girlfriend. A parent may allege that they work one job but neglect to add that they work a second job at night. Additional issues which are related to the testimony elicited on direct examination are ripe for questioning on cross.
Sooner or later, in the course of disproving a witness’s own testimony on cross-examination you may go beyond the scope of the direct examination and face an objection from the opposing side.
“A judge may limit the scope of cross-examination, and unless the defendant can show his or her inquiry is not based on a remote or uncertain theory, a court’s ruling limiting the scope of examination will be affirmed.” Tabb, 374 Ill.App.3d at 689, 312 Ill.Dec. 470, 870 N.E.2d 914.
A lay witness is not likely to disprove the testimony they just provided. A witness is never going to say, “Oh yeah, I guess I was wrong,” after some pointed questions.
Therefore, most cross-examination questions are for the purpose of impeachment.
Impeachment of a witness is “[p]roof that a witness who has testified in a cause is unworthy of credit.” Black’s Law Dictionary (10th ed. 2014)
The impeachment question does not need to be based on an issue that was brought up on direct. Impeachment to attack a witnesses credibility can be done for its own sake.
There are 9 bases upon which you can impeach a lay witness 1) Oath, 2) Perception, 3) Recollection, 4) Communication, 5) Bias, Prejudice, Interest and/or Corruption, 6) Prior Convictions, 7) Prior Bad Acts, 8) Prior Inconsistent Statement and 9) Reputation For Veracity.
Note: an expert witness’s testimony is an opinion. An expert witness is likely to be honest but wrong in their opinion from the cross-examiner’s perspective. This is not the case for lay witnesses who personally experienced something specific which they are now testifying to. The impeachment of an exert’s opinion testimony will be covered in a later article.
The first four bases for impeachment relate to the lay witness’s competence to testify about the subject matter in whole or in part.
“A witness is competent to testify if he has the capacity to observe, recollect, and communicate, and his mental deficiency is considered only insofar as it affects credibility…
The determination of whether a witness is competent to testify is within the sound discretion of the trial court and may be arrived at either through preliminary inquiry or by observing the witness’ demeanor and ability to testify during trial.” People v. Williams, 588 NE 2d 983 – Ill: Supreme Court 1991
Oath
A witness must be able to effectively take the oath to “tell the truth, the whole truth and nothing but the truth” in order to be a competent witness.
If the witness can speak and understand English (or whatever language a translator is translating), that is sufficient to establish that they are competent enough to adequately take the oath.
A witness “is not incompetent if he understands the nature of an oath” THE PEOPLE v. Dixon, 177 NE 2d 224 – Ill: Supreme Court 1961
You could ask the witness questions about whether they understand the oath and that the oath places them under the threat of perjury if they lie.
“A person commits perjury when, under oath or affirmation, in a proceeding or in any other matter where by law the oath or affirmation is required, he or she makes a false statement, material to the issue or point in question, knowing the statement is false.” 720 ILCS 5/32-2
Anything further questions as to the oath itself would be excessive.
Perception
A competent witness must have perceived what they are testifying to.
“The limitation that lay witness opinion testimony be rationally based on the witness’ perception reflects the general requirement that a witness must have personal knowledge of the matter to testify to it. The testimony must be based on concrete facts perceived from the witness’ own senses.” People v. Novak, 643 NE 2d 762 – Ill: Supreme Court 1994
A failure to have personally perceived the issue testified to is either hearsay or an opinion.
“Personal knowledge of a fact cannot be based on the statement of another.” People v. Novak, 643 NE 2d 762 – Ill: Supreme Court 1994
“[A] witness may only testify to facts within his own personal knowledge and recollection, and may not draw inferences and conclusions.” People v. Hobley, 637 NE 2d 992 – Ill: Supreme Court 1994
If the party did not adequately perceive what they testified to, they are not a competent witness.
Recollection
People testify to stuff all the time. Stuff that happened years ago. How can we be sure they even accurately remember what they are testifying to?
Questions about how long ago they event occurred and how could they possibly remember that far back reasonably impeach the witness’s credibility on cross-examination.
A “lack of recollection pointed to by [the opposing party] at most affect the credibility of the witnesses, a matter for the trial court’s determination.” The People v. Robinson, 197 NE 2d 45 – Ill: Supreme Court 1964
If the direct examination is competent, they will have foreseen this recollection problem and used the issue of the witness’s failure to perfectly remember the matter to introduce a document proving the incident happened as the witness described.
This is called “refreshing the recollection” of the witness.
“[A] document is admissible in evidence under the past recollection recorded exception to the hearsay rule if the following four requirements are met: (1) the witness must have had firsthand knowledge of the event recorded; (2) the written statement must be an original statement made at or near the time of the event; (3) the witness must lack any present recollection of the event; and (4) the witness must vouch for the accuracy of the memorandum.” Dayan v. McDonald’s Corp., 466 NE 2d 958 – Ill: Appellate Court, 1st Dist. 1984
The admission of a document which refreshed the witness’s recollection can only be met with questions confirming that while the document may be in evidence, the witness at hand cannot recall anything today and anything beyond the scope of the document must be stricken.
Communication
If a witness perceived an incident, can adequately recall an incident and took an oath that they will communicate truthfully, there is little doubt that they will be able to communicate competently.
This really only becomes an issue for witnesses who do not have a proper translator or are unable to speak due to disability.
A witness will be deemed incompetent if they are “unable to state what [they] saw.” THE PEOPLE v. White, 238 NE 2d 389 – Ill: Supreme Court 1968
Beyond impeaching a witness for lack of competence are the next 5 bases for impeachment. The subsequent bases for impeachment assume the witness is competent to testify but their testimony itself is at issue.
Bias, Prejudice, Interest and Corruption
A witness may have reasons to lie or misstate their testimony. A witness may not even be conscious of these reasons.
It is the duty of the cross-examiner to bring forth these reasons.
“[S]howing bias, interest, or motive to testify is also an accepted method of impeachment” People v. Triplett, 485 NE 2d 9 – Ill: Supreme Court 1985
Evidence of bias is only allowed when it can be shown that the witness has something to gain or lose via their testimony.
“The law is clear in Illinois that when impeaching a witness by showing bias, interest or motive the evidence used must give rise to the inference that the witness has something to gain or lose by his testimony.” People v. Harris, 526 NE 2d 335 – Ill: Supreme Court 1988
What the witness gains or loses can be practically anything, though. Maybe the witness just likes the other party more.
“The scope of cross-examination is generally within the trial court’s discretion. However, the widest latitude should generally be allowed the defendant in cross-examination for the purpose of establishing bias.” THE PEOPLE v. Mason, 192 NE 2d 835 – Ill: Supreme Court 1963
It is not necessary to establish that the witness lied or misstated the evidence. Establishing bias is its own taint on the credibility of that witness’s testimony on direct examination.
The alleged bias must have some relevant basis, however.
“[T]he circuit court does have broad discretion to preclude improper cross-examination… A trial court properly uses this discretion to preclude repetitive or unduly harassing testimony, or to exclude evidence of bias that is too remote or uncertain.” People v. Prevo, 706 NE 2d 505 – Ill: Appellate Court, 4th Dist. 1999
Prior Convictions
Criminals make terrible witnesses. A witnesses’ prior crimes can rarely be brought up in a civil case such as a divorce.
The crime must be a felony or have involved dishonesty.
“For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime, except on a plea of nolo contendere, is admissible but only if the crime, (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, or (2) involved dishonesty or false statement regardless of the punishment unless (3), in either case, the court determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.” Ill. R. Evid. 609
The prior conviction cannot be more than 10 years old.
“Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of conviction or of the release of the witness from confinement, whichever is the later date.” Ill. R. Evid. 609
Prior Bad Acts
If the witness in an Illinois divorce case is an immoral person it may be tempting to bring to the court’s attention that they are a pervert, a drug addict, or a jerk.
In Illinois, you cannot bring up prior bad acts for their own sake in order to impeach a witness.
“The credibility of any witness, including a reputation witness, may not be attacked upon cross-examination by questioning the witness concerning specific instances of her misconduct not leading to a conviction” Podolsky and Associates LP v. Discipio, 697 NE 2d 840 – Ill: Appellate Court, 1st Dist., 3rd Div. 1998
“The reason for barring questions about unrelated prior bad acts is to avoid impeachment by insinuation on such matters and to prevent [finders of fact] from being distracted by marginal but inflammatory matters.” People v. Santos, 813 NE 2d 159 – Ill: Supreme Court 2004
Prior Inconsistent Statement
While you cannot bring up prior bad acts in an Illinois civil trial, being a liar is a prior bad act that is admissible in order to impeach a witness in an Illinois divorce trial.
“The credibility of a witness may be tested by showing that, at a prior time, he made a statement which is inconsistent with his trial testimony on a material matter. This is true even if the prior inconsistent statement was not made under oath or in a court proceeding.” Edward Don Co. v. INDUSTRIAL COM’N, 801 NE 2d 18 – Ill: Appellate Court, 1st Dist., Industrial Commission Div. 2003 (citations omitted)
Impeachment for a prior inconsistent statement is almost always done by presenting an answer the witness presented during a deposition for the case at issue. This requires laying foundational questions such as “Do you remember being deposed in my office on June 2, 2021? Do you remember swearing under oath that your statements while deposed will be the truth, the whole truth and nothing but the truth? Do you recall saying under oath, at my office with a court reporter present the opposite of what you just said in court?”
“Before prior inconsistent statements are offered for impeachment purposes, a foundation must be laid when the witness, whose credibility is challenged, is cross-examined. This rule is designed to protect the witness from unfair surprise and assure him the opportunity to deny or to explain the prior statement.” People v. Powell, 292 NE 2d 409 – Ill: Supreme Court 1973
The prior inconsistent statement is not evidence of what was actually said. A prior inconsistent statement is only evidence that the witness is not credible.
“If, upon questioning, the witness denies having made the prior inconsistent statement or gives equivocal answers to questions regarding the prior statement, the impeachment must be completed by later offering evidence of the inconsistent statement. While evidence of a witness’ prior inconsistent statement may be used to impeach the witness’ credibility, the statement is not admissible as substantive evidence.” Edward Don Co. v. Industrial Comm’n, 344 Ill. App. 3d 643, 652 (Ill. App. Ct. 2003)
A witness’s failure to recall something when they made a prior statement regarding those facts can also be used for impeachment purposes.
“Where a witness is asked concerning the making of statements at variance with his testimony and states that he does not remember making such statements it is competent to prove by way of impeachment that the statements were made.” THE PEOPLE v. Bush, 194 NE 2d 308 – Ill: Supreme Court 1963
If there is not one glaring, preferably written, incident of dishonesty a witness may still be impeached on cross-examination regarding their reputation for being a liar.
Reputation For Veracity
The reputation of the witness as a liar or truth-teller may be brought up not on cross-examination but, rather, by a second witness who can testify to that reputation.
“The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness” Ill. R. Evid. 608
Specific instances of dishonesty are not necessary if a pattern of dishonesty can be established.
“Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.” Ill. R. Evid. 406
Reputation for veracity cannot be brought up on cross-examination as no one is going to admit “I have a reputation for not telling the truth.” I mention reputation for veracity as the final mode of impeachment for the sake of thoroughness and to make the point that a liar never admits they’re a liar…you have to find someone else to make that accusation.
How To Cross-Examine A Witness In An Illinois Divorce
As discussed above, there are two types of questions on cross: 1) eliciting additional information based on what the witness testified to and 2) impeachment questions.
You should know the impeachment questions in advance and have them written and ready.
But, before you ask the impeachment questions, you should immediately ask questions that elicit additional information based on the direct examination. This will require you to think on your feet and take notes during the direct as to what the witness left unsaid.
If the witness then denies what was left unsaid, you can subsequently impeach the witness on that matter, too (you better have a deposition transcript with sworn testimony of the witness actually saying it).
To reiterate, on a cross-examination, you get the information you need out of your opponent’s witness and then you discredit the rest of their testimony via the 9 impeachment methods described above.
The tactics of cross-examination are simple.
- Never repeat a question that was asked on direct
- Only ask leading questions
- Only elicit one fact per question
Not one of your questions on cross-examination should reiterate a question that was asked on direct-examination. You do not need to establish foundation on cross about anything that was brought up on direct-examination. The direct examination is your foundation!
If the direct-examination was any good at all, you will merely be reinforcing your opponent’s points by restating the direct-examination questions.
Your job on a destructive cross-examination is to clarify (if possible) and, subsequently impeach the witness.
Cross-examination is done via leading questions. A leading question is “a question put or framed in such a form as to suggest the answer sought to be obtained by the person interrogating.” Black’s Law Dictionary (10th ed. 2014)
“Leading questions can have varying degrees of suggestiveness.” People v. Miles, 815 NE 2d 37 – Ill: Appellate Court, 4th Dist. 2004
You want your leading questions to be 100% suggestive. Your leading questions on cross should be so leading, that they shouldn’t even look like questions. The questions should be statements that happen to have a question mark after them (if written) or a quizzical inflection placed on the last word (if spoken(of course they will be spoken!)).
Examples of good leading questions:
“You were at the restaurant that night?”
“You ate the special?”
“The special gave you indigestion?”
Examples of bad leading questions?
“Did you go to the restaurant that night?”
“Did you end up eating the special?”
“Did you get indigestion from the special?”
Can you see how the first three questions are so much more authoritative by merely eliminating the option to say “no” by eliminating the word “did”?
The questions should be as brief as possible. A witness cannot say anything other than “yes” or “no” if there are multiple issues.
Example:
“You went to the restaurant?”
“You ate the special?”
“You got indigestion?”
Versus,
“Because you went to the restaurant and ate the special you got indigestion, correct?”
The judge nor the witness can adequately follow the question because it is eliciting multiple facts. Because the question is eliciting multiple facts, there may be multiple answers.
You are not creating some “super question” with only one possible answer.
If a five-year old could not immediately answer your cross-examination question, dumb the question down.
In the end, you will look a lot less stupid asking if the sky is blue than if you ask a complicated compound question about weather patterns.
The witness is your robot. Your simple, direct questions on cross-examination is YOU, the attorney or pro se litigant, programming your robot.
If you have five or less facts to elicit, stick out your hand and count off the facts finger by finger with each question so the judge can see that YOU, the attorney or pro se litigant, are “programming your robot.”
In practical reality, an effective cross-examination is YOU, the attorney or pro se litigant, testifying while the witness agrees with everything you testified to.
If you are the one testifying, what story are you telling? You should be telling the story of the theme of your case whatever that theme is, ex: “She is a wonderful mother” or “Dad hid the money.”
Your “story” should be so tight as to be impossible to be interrupted by your opponent’s objections. If the cross-examination is limited to the scope of the direct-examination, there should be no objections. Everything will be relevant to the direct-examination. Nothing will be hearsay or privileged because all hearsay and privilege will have been eliminated by YOUR own objections in direct-examination.
Finally, you are allowed to deviate from the one fact elicited per question with a final question (or more if you can get away with it) which calls for an overall conclusion based on the all the questions you had previously asked in order to finally tie all your questions together.
Turning back to my example from above:
“You testified that you went to the restaurant, you ate the special and you got indigestion?”
“So, because you went to the diner and ate the special, the diner’s special gave you indigestion?”
“No further questions, your honor.”
If you are preparing for an Illinois divorce trial, are you prepared to counter your opponent’s case? If not, contact my Chicago, Illinois family law firm to learn more about how a trial does work and how a trial should work in an Illinois divorce.
