Posted on July 4, 2021

Questions That Assume Unproven Facts In An Illinois Divorce

In an Illinois hearing or trial, the point of asking questions of a witness is to elicit relevant facts from that witness. It’s tempting to just “cut to the chase” and presume certain facts in advance without asking about them directly. Questions that presume facts not already admitted into evidence are not permitted under the Illinois Rules of Evidence.

While the objection “assumes facts not already admitted” does not have an exclusive rule devoted to it, portions of Illinois Rule of Evidence 403 can be used as its underlying authority.

“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Rule 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time, Ill. R. Evid. 403

The rule’s prohibition of confusion of the issues and misleading the finder of fact, requires parties to only address evidence that has been established and not evidence which is merely presumed.

“Such questions may suggest to the [fact finder] that the witness adopts or admits the presumed facts.” Bartimus v. Paxton Community Hospital, 458 NE 2d 1072 – Ill: Appellate Court, 4th Dist. 1983

This objection is very powerful in that it can completely derail an opponent’s proposed line of questioning.

The objection “assumes facts not admitted to evidence” is, in reality, the same objection as “lack of foundation” which, in turn, is the essentially the same objection as “authentication.” The interrogating attorney has a duty to present evidence in a way that is temporally logical and you are allowed to hold them to that duty.

The cure to the objection “assumes facts not admitted to evidence” is to simply ask further questions that admit that fact into evidence.

The witness can usually back up and provide the missing evidence but often they cannot because the witness does not have personal knowledge of the assumed facts.

There is a “general requirement that a witness must have personal knowledge of the matter to testify to it….The testimony must be based on concrete facts perceived from the witness’ own senses.” People v. Novak, 643 NE 2d 762 – Ill: Supreme Court 1994 (citations omitted)

If the basis of further evidence is evidence the witness did not personal experience with, the witness essentially becomes muted and all of their evidence remains unconsidered by the court.

“Assumptions and statements of fact not based upon evidence in the case may not properly be argued to the [finder of fact]” The People v. Beier, 194 NE 2d 280 – Ill: Supreme Court 1963

How To Avoid The “Assumes Facts Not Admitted To Evidence” Objection

A logical series of questions prepared in advance will keep you from being objected to based on foundation, authentication and assuming facts not admitted to evidence. But, you may not even know exactly what you’re assuming until you start asking questions.

A quick solution to this is to stipulate to facts in advance of trial. If the facts are stipulated to, they are admitted to evidence and, therefor, can be assumed.

This saves everyone time and embarrassment from unforeseen objections.

Courts look with favor upon stipulations which are designed to simplify, shorten or settle litigation and save the costs of the parties. Furthermore, matters subject to stipulation may relate to procedural or even evidentiary matters.” Swank v. Bertuca, 353 NE 2d 415 – Ill: Appellate Court, 4th Dist. 1976

Obviously, a stipulation can’t cover every possible fact. Most facts, ex: the sun rises in the East, are just known and agreed by everyone. These facts don’t need to be submitted into evidence and can just be presumed via judicial notice.

“A trial court, sitting as the trier of fact, may only consider knowledge acquired through the introduction of evidence or through judicial notice” People v. Barham, 788 NE 2d 297 – Ill: Appellate Court, 5th Dist. 2003

Judicial notice “operates to admit into evidence, without formal proof, those facts which are a matter of common and general knowledge and which are established and known within the limits of the jurisdiction of the court.” Palmer v. Mitchell, 206 N.E.2d 776 (Ill. App. Ct. 1965)

So, if a particularly annoying “assumes facts not in evidence” objection comes up, you can always ask the court to take judicial notice of that fact, thereby putting the fact into evidence and resolving the problem.

Hypothetical Questions That Assume Unproven Facts

There is one person that can answer questions assuming facts not already in evidence: an expert.

An expert witness is there to offer an opinion. That opinion should be based on facts but when the opinion calls for speculation, facts admitted to evidence are not required.

“[A]n expert opinion couched in terms of probabilities or possibilities based upon certain assumed facts is not improper or inadmissible.” Rodrian v. Seiber, 551 NE 2d 772 – Ill: Appellate Court, 5th Dist. 1990

“[A]n expert witness is called upon to assume the facts, taken from the evidence, as true and to give an opinion on such facts. He may testify to “what might” have caused [the matter at issue], despite any objection that his testimony is inconclusive and speculative. The testimony is but the opinion of the witness given on facts assumed to be true.” Beloit Foundry v. Industrial Com., 343 NE 2d 504 – Ill: Supreme Court 1976

“[T]he expert’s testimony is but “the opinion of the witness given on facts assumed to be true” McKenzie v. SK Hand Tool Corp., 650 NE 2d 612 – Ill: Appellate Court, 5th Dist. 1995

The facts assumed have to be realistic, however.

“Generally, when an expert is asked to assume certain things as true, they must be within the realm of direct or circumstantial evidence, supportable by the facts or reasonable inferences which can be drawn therefrom Nevertheless, expert testimony couched in terms of probabilities or possibilities based on assumed facts is not inadmissible or improper.” Buford v. Chicago Housing Authority, 476 NE 2d 427 – Ill: Appellate Court, 1st Dist. 1985

Beyond speculative expert opinions, assumed facts are allowed for hypothetical questions. A court can “assume that [facts] were in place for the purpose of [a] hypothetical question.” Buford v. Chicago Housing Authority, 476 NE 2d 427 – Ill: Appellate Court, 1st Dist. 1985

For a hypothetical question, the assumed facts have to possibly be in evidence either now or in the future for an expert to consider them.

“In presenting evidence by hypothetical question, counsel propounding the question has a right to ask it assuming the elements he claims appear in the evidence.” Gus T. Handge & Son v. IND. COM., 210 NE 2d 498 – Ill: Supreme Court 1965

Pleading, Motions And Facts Not Yet In Evidence

A pleading or a motion will state facts upon which the pleading is based. Those facts have not been admitted to evidence yet but the judge should be reading them in advance of the hearing or trial. Is this prejudicial?

No. “In considering [a preliminary motion] plaintiffs’ pleaded facts are assumed to be true.” Collier v. Wagner Castings Co., 408 NE 2d 198 – Ill: Supreme Court 1980

For facts that are especially difficult to prove because of hearsay or other objections, the court can still be made tangentially aware of the facts via written pleadings without any offer of proof.

Structuring your hearing or trial is crucial to getting your evidence in. Disrupting your opponent’s evidence via objection can severely limit the efficacy of their case. To learn more about these tactics and techniques, contact my Chicago, Illinois family law firm to schedule an appointment 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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