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Posted on November 20, 2021

Keeping Non-Party Witnesses Out Of Court During An Illinois Divorce Trial

An Illinois divorce judge is the finder of fact during an Illinois divorce trial. The Illinois divorce judge determines what are true facts based on the testimony of the witnesses presented.

A judge can use many different factors to determine which facts are true: instructions from the law, credibility of the witness and/or logic. A party to a divorce has little control over these factors beyond the presentation of the evidence for consideration.

One thing a party can do is to present A LOT of evidence. The purpose of cumulative evidence is to corroborate the previous evidence.

To corroborate is “to add weight or credibility to a thing by additional and confirming facts or evidence.” (Black’s Law Dictionary 414 (4th ed. 1951).) 

The ability to corroborate creates an incentive to tell each subsequent witness what the previous witness said so the testimony remains consistent and, thus, corroborative.

Because of this tendency, there is a rule which allows for the exclusion of witnesses from the court room in order to ensure that each witness’s testimony is based on their own independent recollection…and not what the last witness said.

“At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. ” Ill. R. Evid. 615

A party to a divorce who is also a witness cannot be excluded, however. You have the right to be at your entire divorce case.

A court hearing is a public forum. Anyone who wants to watch a hearing may unless otherwise ordered by the court. This tradition is now, effectively, moot in the age of Zoom hearings where one must have a meeting ID and password to join a Zoom trial.

Exclusion of witnesses Is not mandatory. The exclusion of witnesses must be requested (and the request will often be suggested by the judge).

“There is no statute or rule of the supreme court which mandates that witnesses be excluded from the courtroom during the course of a trial” Smith v. City of Chicago, 702 NE 2d 274 – Ill: Appellate Court, 1st Dist., 4th Div. 1998 (emphasis mine)

Either party may move to exclude witnesses from the courtroom. This is usually done via a motion in limine. Any witness who remains in the court after the order, will not be allowed to testify later.

“[T]he court has the discretion to exclude witnesses from the courtroom during a trial… Excluding a witness is an appropriate measure intended to preclude, intentionally or not, a witness’s shaping of his or her testimony to conform to that of witnesses who have already testified; to the same end, the court can instruct witnesses not to discuss their testimony with others who will testify.” People v. Dresher, 847 NE 2d 662 – Ill: Appellate Court, 1st Dist., 5th Div. 2006 (citations omitted)

“The court’s power to enter such an order is derived from its inherent power to afford a fair trial to all parties. The purpose of an order excluding non-party witnesses from the courtroom is to prevent the shaping of testimony by one witness to match that of another and discourage fabrication.” Smith v. City of Chicago, 702 NE 2d 274 – Ill: Appellate Court, 1st Dist., 4th Div. 1998 (quotations omitted)

It’s up to the court to determine what to do if an excluded witness remained in the courtroom.

“Whether a witness who has violated an exclusion order should be permitted to testify or whether such testimony should be stricken from the record or a mistrial declared is within the discretion of the trial court” People v. Wiatr, 119 Ill. App. 3d 468, 473 (Ill. App. Ct. 1983)

A trial may last more than a day or a trial may have breaks. In such a case, an Illinois divorce judge may order “that [witnesses] refrain from discussing their testimony with other witnesses.” Smith v. City of Chicago, 702 NE 2d 274 – Ill: Appellate Court, 1st Dist., 4th Div. 1998

If witnesses are found talking to each other outside of court, it does not automatically strike their past testimony or bar their future testimony.

“A violation of a court order prohibiting witnesses from talking to one another does not result in the automatic exclusion of a witness’ testimony because it punishes a litigant by depriving him of testimony which may be material to his case without fault of his own. The dominant inquiry is whether the exclusion or inclusion of the testimony would prejudice the affected party.” People v. Wiatr, 119 Ill. App. 3d 468, 474 (Ill. App. Ct. 1983)(citation omitted)

An Illinois divorce judge can even order a lawyer to refrain from speaking with the witnesses during trial breaks as that might coach the witnesses.

If the lawyer is ethical, the prohibition on communication with witnesses will have little impact. “A lawyer shall not…counsel or assist a witness to testify falsely” Ill. Sup. Ct. R. 3.4(b)

Controlling your divorce case means controlling what the witnesses say. The only way you can control your opponent’s witnesses is by controlling what they hear. Be sure to exclude all witnesses from the courtroom. If your witnesses are properly prepared, an exclusion from the courtroom won’t affect their testimony.

To learn more about the myriad of rules in an Illinois divorce trial, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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