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Leading Questions In An Illinois Divorce Trial Or Hearing
Probably the first rule of evidence any attorney learns is that leading questions are not allowed when you’re calling your own witness.
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)
The point of prohibiting leading questions is that they don’t really allow the witness to answer of their own accord. Questions which state the answer within themselves are just a series of rhetorical questions. That isn’t an exploration into the facts at issue, that is a speech.
The answer to a question that does not come from the witness’s own recollection but rather by suggestion from the questioner is inherently less reliable.
“[A] suggestive manner of questioning by the witness to a hearsay statement (conduit of the statement) is a circumstance negating reliability of the statement.” People v. Ware, 259 Ill.App.3d 466, 471, 197 Ill.Dec. 680, 631 N.E.2d 902, 905 (1994)
“Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony.” Rule 611 – Mode and Order of Interrogation and Presentation, Ill. R. Evid. 611(c)
While a “yes/no” questions is definitely leading “[l]eading questions can have varying degrees of suggestiveness.” People v. Miles, 815 NE 2d 37 – Ill: Appellate Court, 4th Dist. 2004
Therefore, when you hear a leading question, you are free to interrupt with an “Objection! Leading.” This will allow the judge to consider whether to ask the interrogator to restate the question.
Is it even worth objecting to leading questions? Probably not. If the opposing counsel is just laying foundation and establishing background facts that aren’t salient to the issues in controversy, who cares? Let the other side wrap up in the most boring, objection-free manner possible.
“To be incompetent, a leading question must relate to material matters and occur when there is no apparent necessity for it.” People v. Bunning, 700 NE 2d 716 – Ill: Appellate Court, 4th Dist. 1998
Constant objections can annoy a judge and possibly stymie better objections which you may have later.
“[I]f leading questions were used, if appropriate, that fact does not necessarily render their responses untrustworthy.” People v. Zwart, 600 NE 2d 1169 – Ill: Supreme Court 1992
Furthermore, a judge can allow leading questions if they so wish because they’re almost never truly prejudicial. A cross-examination will allow you to correct the record just minutes later.
“The allowance of leading questions is within the discretion of the trial court, and its decision will not be reversed unless it abused that discretion and the defendant has been substantially injured as a result.” People v. Spencer, 457 NE 2d 473 – Ill: Appellate Court, 1st Dist. 1983
“[Q]uestions asked by…counsel were leading, and many of the questions that were leading related to preliminary or inconsequential matters. Under the circumstances, any error is harmless.” McDonnell v. McPartlin, 736 NE 2d 1074 – Ill: Supreme Court 2000
When Can You Ask Leading Questions In An Illinois Divorce Hearing Or Trial
Leading questions are allowed during cross-examination.
“Ordinarily leading questions should be permitted on cross-examination.” Rule 611 – Mode and Order of Interrogation and Presentation, Ill. R. Evid. 611(c)
“Generally, it is improper to lead witnesses except on cross-examination” People v. Cobb, 542 NE 2d 1171 – Ill: Appellate Court, 2nd Dist. 1989
The reason leading questions are allowed on cross-examination is that during cross-examination, you are not questioning a friendly witness. You do not know the witness’s answers in advance and you can expect the answers to be contrary to your goals. Therefore, your questions can be more pointed.
This is made clear by the fact that leading questions are allowed on direct if the witness is certified as a hostile witness.
“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.” Rule 611 – Mode and Order of Interrogation and Presentation, Ill. R. Evid. 611
“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
The witness doesn’t have to be “on the other side” to be declared a hostile witness. Just being a jerk is enough.
“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.” Rule 238 – Impeachment of Witnesses; Hostile Witnesses, Ill. Sup. Ct. R. 238
“The credibility of a witness may be attacked by any party, including the party calling the witness.” Rule 238 – Impeachment of Witnesses; Hostile Witnesses, Ill. Sup. Ct. R. 238
Attacking someone’s credibility is a lot easier with leading questions. Example: “You were lying then, weren’t you?”is a lot harder to dodge than “What was your statement in relation to the truth that day?”
Normally, on direct examination, you can’t bring up a witnesses prior criminal behavior if it’s not relevant. Once the witness is hostile, you can ask plenty of leading questions about their prior convictions.
“On cross-examination, a party may be impeached by prior convictions; therefore, it follows that a hostile witness also may be impeached by prior convictions.” People v. Tate, 429 NE 2d 470 – Ill: Supreme Court 1981
Finally, in order to be sensitive to a child’s understanding and experience in a court room, a “trial court has the discretion to permit the use of leading questions when the witness is a young child.” People v. Calusinski, 733 NE 2d 420 – Ill: Appellate Court, 2nd Dist. 2000
Leading questions are probably the simplest issue in Illinois evidence and, yet, you just read 1000 words on the proper application of leading questions under Illinois law. Leading questions don’t matter…until they do! So, if you want the questions in your divorce trial to matter, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.