People can rarely get their story straight. Even in court. Even under oath with the threat of the penalty for perjury.
It is rare to catch a person in an outright lie in an Illinois divorce hearing or trial. More frequently, the witness’s testimony is confusing and inconsistent.
A witness in a divorce hearing might say, “I take him to school every day,” and then later say, “Well, I didn’t take him to school on Tuesdays.”
This is not exactly lying. This is not exactly clarification. How do you bring inconsistencies to the attention of an Illinois divorce judge to highlight the witness’s lack of credibility? Conversely, how do you salvage a witness’s credibility if they have made inconsistent statements.
There will never be a courtroom drama moment where a lawyer gets to ask the witness, “Isn’t it true that you are a liar?”
In reality, something more dramatic occurs when discrediting a witness for a prior inconsistent statement: Impeachment.
Impeaching The Witness After An Inconsistent Statement In An Illinois Divorce Hearing Or Trial
Impeachment as a trial technique is a concept that must be understood before it is employed.
Impeachment is “the act of discrediting a witness , as by catching the witness in a lie.” Black’s Law Dictionary (11th ed. 2019)
“The credibility of a witness may be attacked by any party, including the party calling the witness.” Ill. Sup. Ct. R. 238(a)
“Such an attack [on a witness’s credibility] 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 subsequent contradictory statement which allows for impeachment must have some kind impact on the opposing party.
“The credibility of a witness may be attacked by any party, including the party calling the witness, except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of affirmative damage.” Ill. Sup. Ct. R. 607
If a witness says something innocuous but inconsistent, you cannot impeach them. For example, if a witness says, “it was raining the night I saw the husband with his mistress,” but the weather report indicates that the skies were clear, you cannot use that weather report to impeach the witness.
“A…witness…cannot be impeached by prior inconsistent statements unless his testimony has damaged, rather than failed to support the position of the impeaching party. The reason for this is simple: No possible reason exists to impeach a witness who has not contradicted any of the impeaching party’s evidence, except to bring inadmissible hearsay to the attention of the jury.
Impeachment is supposed to cancel out the witness’ testimony [not add new testimony].” People v. Weaver, 442 NE 2d 255 – Ill: Supreme Court 1982
Why is impeachment handled so carefully? Why not just call a liar a “liar”? The rules of impeachment are followed carefully because impeachment can allow for the introduction of hearsay.
“”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
“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.” Rule 802 – Hearsay Rule, Ill. R. Evid. 802
It is rare to catch the witness in a prior inconsistent statement unless it was recorded. You cannot have someone simply testify that they heard the witness say it. Someone has to have recorded it somehow.
“What a witness states out of court and out of the presence of the defendant is pure hearsay and incompetent as substantive evidence.” People v. Cruz, 643 NE 2d 636 – Ill: Supreme Court 1994
Usually, in an Illinois divorce, the person you are trying to impeach is your spouse. A divorcing spouse’s statements are never hearsay…negating the strict impeachment/hearsay requirements discussed previously.
“A statement is not hearsay if… The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth” Ill. Sup. Ct. R. 801(d)(2)
If the subsequent in-court statement is such an outright lie that the court should be offended, the court will hold the witness in contempt.
“Direct contempt is contemptuous conduct which occurs in the presence of a judge. It is strictly limited to actions seen and known by the judge.” In re Marriage of Betts, 558 NE 2d 404 – Ill: Appellate Court, 4th Dist. 1990
Civil contempt of court must be imposed to encourage good behavior…not just to punish.
“[C]ivil contempts are those prosecuted to enforce the rights of private parties and to compel obedience to orders or decrees for the benefit of opposing parties” Peo. ex Rel. Chi. Bar Assoc. v. Barasch, 21 Ill. 2d 407, 409-10 (Ill. 1961)
Being exposed as a fool (or worse, a liar), not having your testimony adopted as fact and being dismissed from the stand in shame is usually punishment enough that a contempt finding is not necessary.
How To Impeach A Witness After They Make An Inconsistent Statement
If you can impeach a witness for a prior inconsistent statement, you should. It does not just discredit the witness, it also shows your mastery of trial skills.
Usually, the witness has already been deposed by you and you have a transcript of that deposition handy with you on the trial date.
Either in a cross-examination or a direct examination where you treat the opposing party as a hostile witness, you can then ask them about the prior inconsistent statement.
You must lay a proper foundation for inconsistent statement.
“Before prior inconsistent statements are offered for impeachment purposes, a foundation must be laid when the witness, whose credibility is challenged, is cross-examined.” People v. Powell, 292 NE 2d 409 – Ill: Supreme Court 1973
Example impeachment questions are as follows:
“Do you recall our deposition on X date?”
“At that deposition, you testified under oath and a transcriptionist recorded those statements, correct?”
“At this time, I’m going to show you the transcript from that deposition. Can you turn to the last page and verify that it is your signature certifying the accuracy of the transcript?”
“You had a chance to read and verify the contents of this transcript and your signature confirms that the transcript accurately reflects your statements made on that date?”
“I’m going to direct your attention to page X, line Y. Can you please read that for the court?”
(Witness reads the contradictory statement).
“Just moments ago, you testified under oath that (whatever the contradiction is)”
“At this time, I’d like to submit the transcript from the deposition as (Petitioner/Respondent’s) Exhibit X”
You don’t need to submit a transcript of the prior inconsistent and sworn statement…but it is pretty devastating when you do.
“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)
The only other way to get in a prior inconsistent statement is to have someone else testify that they heard the prior inconsistent statement which requires all the hearsay safeguards I described above. Contradictory testimony told second-hand is not nearly as dramatic and usually devolves into he said/she said.
Even if you can’t expose the witness with their prior contradictory statements, the court is still free to accept the implication that they are lying. “The trier of fact is not required to accept [the] defendant’s version of the facts, but may consider its probability or improbability in light of the surrounding circumstances.” People v. Ferguson, 204 Ill. App. 3d 146, 151 (1990)
All is not lost if your witness is impeached. You can still try to “rehabilitate” your witness on redirect or cross.
Defending An Inconsistent Statement In An Illinois Divorce Hearing Or Trial
There’s usually a reason people make inconsistent statements. Your impeached witness will always have a chance to explain themselves in a redirect examination.
“On redirect examination a witness may be asked questions designed to remove unfavorable inferences or impressions raised by the cross-examination.” People v. Sanchez, 392 NE 2d 378 – Ill: Appellate Court, 3rd Dist. 1979
“Th[e opportunity to cross-examine or redirect your own witness] 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
A simple question such as, “You heard the opposing counsel characterize your two statements as being inconsistent and contradictory. Can you explain why you said those two statements?”
We have all said things that, on the surface, are contradictory. Your witness is going to have an explanation.
Even if the explanation of the contradictory statements is not logical or compelling…the inconsistency may not be that important.
“Minor discrepancies and inconsistencies in testimony do not render that testimony unworthy of belief, but go only to the weight to be given that testimony.” People v. Henderson, 344 NE 2d 239 – Ill: Appellate Court, 1st Dist. 1976
Most people do not say something contradictory right after they said something else. Inconsistent statements usually happen at separate instances like a deposition.
Remind the courts that inconsistent statements are common and only effect the weight of the testimony at hand. “[S]uch inconsistencies in testimony taken at different times are not unusual and go only to the weight to be given the testimony by the jury; they do not destroy the credibility of the witness.” People v. Henderson, 344 NE 2d 239 – Ill: Appellate Court, 1st Dist. 1976
If a lying witness is not impeached a court “cannot arbitrarily or capriciously reject the testimony of an unimpeached witness.” People ex rel. Brown v. Baker, 88 Ill. 2d 81, 85 (1981)
A bad witness can only be resolved with a good lawyer. Otherwise it will all be a confusing mess. To be sure your witness tells a cogent story and your opposing party’s witness’s credibility is succinctly torn to shreds, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.
