In an Illinois divorce hearing or trial evidence is usually taken by testimony. The court then weighs that testimonial evidence against other evidence presented. But, what if the testimonial evidence is wrong? Or worse, what if the testimonial evidence is a lie?
If testimonial evidence is provided in an Illinois divorce which is wrong or untrue, the other party has the opportunity to rebut that evidence via impeachment.
Furthermore, if the witness is known to say untrue things, generally. That witness’s habits can be brought to the attention of the court via impeachment.
Additionally, if the witness has an inherent bias that has not been disclosed to the court, that bias can be presented to the court via impeachment.
What Is Impeachment In An Illinois Divorce Hearing Or Trial?
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)
An Illinois judge may not wholly discount the testimony of a witness “unless it was impeached, contradicted by positive testimony or by circumstances, or found to be inherently improbable.” Bucktown Partners v. Johnson, 119 Ill. App. 3d 346, 353 (1983)
Why do we need to a special label to accuse someone of being mistaken or a liar during an Illinois divorce trial? Because evidence of untrustworthiness of a witness is probably not relevant to the issues in a divorce trial.
“”Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ill. R. Evid. 401
Irrelevant evidence will not be considered in an Illinois divorce trial.
“All relevant evidence is admissible, except as otherwise provided by law. Evidence which is not relevant is not admissible” Ill. R. Evid. 402
For example, a witness might be a racist, an addict or a criminal. These issues would all be irrelevant to the subject matter of their testimony. In fact, those accusations are prejudicial and provide additional weight to keep those allegations out of evidence.
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice” Ill. R. Evid. 403
Evidence brought for the purposes of impeachment is an acceptable exception to the requirement that all considered evidence must be relevant. Otherwise, information about credibility would never come before the court.
“The purpose of “impeachment” is to destroy credibility rather than to prove the truth of the matters stated in the impeaching testimony.“ Kubisz v. Johnson, 329 NE 2d 815 – Ill: Appellate Court, 4th Dist. 1975
Who Can be Impeached In An Illinois Divorce Hearing Or Trial?
Anyone can be called as a witness in an Illinois divorce trial. If that witness has provided testimony, the other party to the trial will have the right to cross-examine the witness.
“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. The party calling for the examination is not concluded thereby but may rebut the testimony thus given by countertestimony and may impeach the witness by proof of prior inconsistent statements.” 735 ILCS 5/2-1102
During that cross-examination, the questioner may attack the witnesses credibility via impeachment.
“The credibility of a witness may be attacked by any party” Ill. R. Evid. 607
Normally, you can’t impeach your own witness for the sake of impeaching them. But, if your witness says something crazy in the course of regular testimony, you may impeach your own witness.
“The general rule is that a party is not permitted to impeach a witness whom he has called. In civil cases a few cases have permitted a party to impeach a witness whom the party is required by law to call as a witness. A party is not permitted to call a witness for the sole purpose of impeaching him.” Kubisz v. Johnson, 329 NE 2d 815 – Ill: Appellate Court, 4th Dist. 1975
Impeachment By Showing Criminal History In An Illinois Divorce Hearing Or Trial
During the course of that cross-examination, the questioner may bring up prior crimes, lies or other issues as to the veracity of the witness’s testimony.
“No person shall be disqualified as a witness in any action or proceeding, except as hereinafter stated, by reason of his or her interest in the event thereof, as a party or otherwise, or by reason of his or her conviction of any crime; but such interest or conviction may be shown for the purpose of affecting the credibility of such witness; and the fact of such conviction may be proven like any fact not of record, either by the witness himself or herself (who shall be compelled to testify thereto) or by any other witness cognizant of such conviction, as impeaching testimony, or by any other competent evidence” 735 ILCS 5/8-101
In a divorce trial, the witness’s prior crimes are rarely relevant to testimony but they can be brought up even though a divorce is a not a criminal proceeding.
“[F]or the purposes of impeachment of testimony, there is no distinction between misdemeanors and infamous crimes when introducing prior convictions in civil and criminal proceedings.” Knowles v. Panopoulos, 363 NE 2d 805 – Ill: Supreme Court 1977
Not all prior crimes will be deemed sufficiently bad to bring up in an Illinois divorce trial. A crime must be serious (a felony) OR the crime must involve dishonesty. The court will weigh the past crime against the testimony offered.
“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
Impeachment For Bias In An Illinois Divorce Hearing Or Trial
“The confrontation clause of the sixth amendment of the United States Constitution (U.S. Const., amend. VI) guarantees a defendant the right to cross-examine a witness against him for the purpose of showing the witness’ bias, interest or motive to testify falsely. The exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” People v. Harris, 526 NE 2d 335 – Ill: Supreme Court 1988
“[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
“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
Evidence of bias can really be anything. A loan between parties. A relationship between the parties. Some preconceived notion the witness may or may not have.
“[B]ias may be shown by circumstances other than a showing of ill will or bad feeling toward the defendant” THE PEOPLE v. Mason, 192 NE 2d 835 – Ill: Supreme Court 1963
Even an expert’s professional, calculated testimony can be exposed to bias.
“[T]he principal safeguard against errant expert testimony is the opportunity of opposing counsel to cross-examine, which includes the opportunity to probe bias, partisanship or financial interest.” Trower v. Jones, 520 NE 2d 297 – Ill: Supreme Court 1988
Questions about bias will be allowed as much as the judge finds them appropriate.
“Limitation upon cross-examination establishing interest or bias is within the trial court’s discretion.” Lebrecht v. Tuli, 473 NE 2d 1322 – Ill: Appellate Court, 4th Dist. 1985
Credibility And Impeachment In An Illinois Divorce Case
Whether the witness is a liar or not is of great importance to their credibility. Outside of the truth, the best evidence of current lies…are past lies.
A history of lies and bad character can be introduced into evidence for the purposes of impeachment.
“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, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.”, Ill. R. Evid. 608
“Generally, character evidence is inadmissible when a party’s character is not in issue.” People v. Lucas, 603 NE 2d 460 – Ill: Supreme Court 1992
“In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation, or by testimony in the form of an opinion.” Ill. R. Evid. 405(a)
Evidence about a person’s reputation for telling the truth comes in as an opinion about their general honesty.
If you want to introduce a specific instance of dishonesty, that instance has to relate to the testimony at hand. Current statements can only be rebutted specifically by prior inconsistent statements.
“Under Rule 238(a), the credibility of a witness can be attacked by any party, including the party calling the witness. Such an attack may be accomplished by impeaching the witness with evidence of a prior inconsistent statement.” People v. Cruz, 643 NE 2d 636 – Ill: Supreme Court 1994
“The credibility of a witness may be attacked by any party, including the party calling the witness.” Ill. Sup. Ct. R. 238(a)
Prior inconsistent statements are usually in the form of transcripts taken at deposition. Upon hearing the inconsistent statement, the counsel may pause and introduce the transcript into evidence and even have the witness read their own prior inconsistent statement to the court.
“Once the foundation for impeachment by prior inconsistent statements has been laid, it is incumbent upon counsel, having laid such foundation to offer proof of the alleged impeaching statements.” Schoolfield v. Witkowski, 203 NE 2d 460 – Ill: Appellate Court, 1st Dist., 3rd Div. 1964
Increasingly, statements in social media have become a trough of prior inconsistent statements as people choose to express themselves in writing every day…to the public…for posterity…while they are in litigation (how dumb!)
Proving people are liars is one of the funner things about litigation. But, you have to know how to do it properly. If you’d like to prove someone in your divorce case is lying, contact my Chicago, Illinois family law firm to discuss the matter with an experienced Chicago divorce attorney.