If your divorce requires an evidentiary hearing or trial you may need testimony from someone who is not on your side. You may need a witness who is your spouse, your spouse’s relatives, your spouse’s boyfriend/girlfriend or just some jerk to testify in your divorce hearing or trial.
It doesn’t matter what the person thinks of you, if you subpoena them to testify at your hearing or trial, they have to attend.
“Any witness shall respond to any lawful subpoena of which he or she has actual knowledge.” Ill. Sup. Ct. R. 237
Once your unwilling witness is on the stand. They are your witness so you must only ask them open-ended questions. Open-ended questions begin with “what,” “when,” “who,” “when” and “why?”
If the witness doesn’t like you, they can answer open-ended questions in ways you might not like or appreciate. Specifically, you’re not going to get the answer you are looking for from a witness who doesn’t like you.
You cannot ask more pointed “yes/no” questions because those are considered leading questions. Leading questions are not allowed on direct examination.
“Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony.” Ill. R. Evid. 611(c)
The witness cannot simply dance around the answer indefinitely. At some point, you can ask the court to declare the witness to be “hostile” and, thus, allow leading questions.
Once the witness is declared hostile, you can proceed with leading questions.
“When a party calls a hostile or an unwilling witness or an adverse party…interrogation may be by leading questions.” Ill. R. Evid. 611
“If the court determines that a witness is hostile or unwilling, the witness may be examined by the party calling the witness as if under cross-examination.” Ill. Sup. Ct. R. 238
“If the trial court determines that a witness is hostile or unwilling he may be cross-examined by the party calling him.” Hall v. Baum Corp., 299 NE 2d 156 – Ill: Appellate Court, 1st Dist. 1973
What Makes A Witness Hostile In An Illinois Divorce Hearing Or Trial?
Some witnesses are automatically hostile and the questioning attorney need not ask the judge’s permission to ask leading questions. Adverse parties may be asked leading questions on direct without leave of court.
“When a party calls a hostile or an unwilling witness or an adverse party or an agent of an adverse party as defined by section 2-1102 of the Code of Civil Procedure (735 ILCS 5/2-1102 ), interrogation may be by leading questions.” Ill. R. Evid. 611 (emphasis mine)
Adverse parties are determined by the following statute: “Examination of adverse party or agent. Upon the trial of any case any party thereto or any person for whose immediate benefit the action is prosecuted or defended, or the officers, directors, managing agents or foreman of any party to the action, may be called and examined as if under cross-examination at the instance of any adverse party” 735 ILCS 5/2-1102
For all other witnesses, the judge in your case will determine whether you can declare a witness to be hostile and, thus, start asking him or her leading questions.
“Whether a witness is hostile, uncooperative, or unwilling for purposes of the rule is a matter within the sound discretion of the trial court.” Mazzone v. Holmes, 557 NE 2d 186 – Ill: Appellate Court, 1st Dist. 1990
It’s not enough for the witness to hate you to be considered a “hostile” witness.
“The fact that [a witness] may have been unsympathetic to defendant’s case is, in and of itself, insufficient to invoke the provisions of [the hostile witness rule].” Yamada v. Hilton Hotel Corp., 376 NE 2d 227 – Ill: Appellate Court, 1st Dist. 1977
“The mere fact that his testimony might have been unfavorable to plaintiff’s case was not in itself sufficient to invoke the hostile witness rule” Mazzone v. Holmes, 557 NE 2d 186 – Ill: Appellate Court, 1st Dist. 1990
“Unfavorable testimony is generally no reason for declaring a witness to be hostile or uncooperative.” Curtis v. Goldenstein, 465 NE 2d 1367 – Ill: Appellate Court, 3rd Dist. 1984
The witness has to be difficult on the stand. The witness has to evade answering somehow before leading questions will be allowed
“[A] determination [that a witness is hostile] cannot be made until the witness demonstrates hostility or uncooperativeness while testifying.” Curtis v. Goldenstein, 465 NE 2d 1367 – Ill: Appellate Court, 3rd Dist. 1984
So, after a few evasive or rude answers, you may turn to the judge and say “permission to treat this witness as a hostile witness” and, if approved, you may proceed with your line of questioning where the witness can only answer “yes” or “no.” Any additional elaboration or explanation by the witness can be cut off by reminding the witness, “this is a yes or no question.”
Getting the information you need from people who don’t want to give it to you is not easy. To learn more contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Chicago divorce attorney.