The point of questioning a witness in an Illinois divorce is to elicit knowledge that they accurately and verifiably possess. If the witness testifies to something they do not actually know, they are speculating.
Speculative answers should be met with an “Objection! The question calls for speculation” by the opposing counsel.
The best hint that a speculative answer is coming is that it was asked with a speculative question. That is, a question that is assuming facts that have not been admitted to evidence. Such questions will no doubt require an answer with no basis in evidence, either.
“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.” Ill. R. Evid. 602
If a speculative answer is given, it must be labelled as such so the finder of fact (in divorce, a judge) will not weigh that answer when coming to a final conclusion.
“Mere surmise or conjecture is never regarded as proof of a fact.” Lyons v. Chicago City Ry. Co., 258 Ill. 75, 81, 101 N.E. 211 (1913).
Speculative answers are not relevant evidence and therefore they are inadmissible. Irrelevant evidence is not admissible in an Illinois court of law.
“All relevant evidence is admissible, except as otherwise provided by law. Evidence which is not relevant is not admissible.” Rule 402 – Relevent Evidence Generally Admissible; Irrelevant Evidence Inadmissible, Ill. R. Evid. 402
“”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.” Rule 401 – Definition of “Relevant Evidence”, Ill. R. Evid. 401
“It follows, therefore, that testimony grounded in guess, surmise, or conjecture, not being regarded as proof of a fact, is irrelevant as it has no tendency to make the existence of a fact more or less probable. From this conclusion follows the rule that expert opinions based upon the witness’s guess, speculation, or conjecture as to what he believed might have happened are inadmissible.” Modelski v. Navistar Intern. Transp. Corp., 707 NE 2d 239 – Ill: Appellate Court, 1st Dist., 4th Div. 1999
The more relevant facts, the better. “[T]he best interests of justice would not be served by deciding [an] issue in a factual vacuum based upon speculation rather than competent evidence and a complete record.” Robin v. Robin, 359 NE 2d 809 – Ill: Appellate Court, 1st Dist. 1977
Speculative Answers In An Illinois Divorce Trial Or Hearing
Many issues in divorce are based on the what will happen in the future. What will be in the best interests of the children? How much money will each spouse continue to make? What values assets would have if sold today? These matters must be proven based on evidence not guesses.
For financial matters, speculation is not permitted without some basis in expertise.
“[L]ost profits cannot be based upon conjecture or sheer speculation.” Midland Hotel Corp. v. RH DONNELLEY CORP., 515 NE 2d 61 – Ill: Supreme Court 1987
“Illinois courts have long rejected the use of speculative… projections of income in the valuation of a business.” SK Hand Tool Corp. v. Dresser Industries, 672 NE 2d 341 – Ill: Appellate Court, 1st Dist., 1st Div. 1996
An Illinois divorce court cannot “engage in speculation as to the future income of each party.” In re Marriage of Goldstein, 423 NE 2d 1201 – Ill: Appellate Court, 1st Dist. 1981
For maintenance awards (formerly known as alimony) the court and its witnesses cannot speculate as to how much either party will earn in the future. The court must look at what is being earned in the past and present and only consider what the parties’ earning capacities are at the moment of trial.
“While the statute specifically grants the trial judge authority to make awards of limited duration, such awards should not be based on speculation as to the future conditions of the parties…The award must be made upon the basis of circumstances disclosed by the evidence at the time of the award.”In re Marriage of Pieper, 398 NE 2d 868 – Ill: Appellate Court, 1st Dist. 1979
“While an award may be for a definite time frame, it should not be based on speculation as to the future conditions, but on circumstances disclosed by the evidence. Where the court has specific evidence regarding educational background, present educational pursuits, and income at the time of dissolution, there is sufficient evidence to set a specific period of time for maintenance.” In re Marriage of Wade, 511 NE 2d 156 – Ill: Appellate Court, 4th Dist. 1987
In contrast, parenting matters almost always call for speculative questions in order to determine what orders would be in the best interests of the child. Illinois courts, however, should “decline to engage in speculation as to what effect [a parent’s] conduct in the present case will have on [their] children in the future.” Jarrett v. Jarrett, 382 NE 2d 12 – Ill: Appellate Court, 1st Dist. 1978
This bar on speculative answers is essentially removed because almost all contested custody issues employ the help of a Guardian Ad Litem. A Guardian Ad Litem can issue opinions and speculate as to the results of those opinions throughout their report.
“The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child” 750 ILCS 5/506(a)(2)
Speculation Is An Opinion
Stating something without the evidence to confirm that statement’s truth is not just speculation, it is also an opinion. Opinions are distinguished from evidence in an Illinois court proceeding.
“[T]he general rule is that testimony of a witness’ opinion is not admissible into evidence” People v. Brown, 558 NE 2d 309 – Ill: Appellate Court, 1st Dist. 1990
Some opinions are allowed if they based on things the witness actually saw, felt, heard and/or experienced. The opinion must still be relevant while not relying on technical knowledge that would not be obvious to the finder of fact.
“If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Rule 701 – Opinion Testimony by Lay Witnesses, Ill. R. Evid. 701
So, a lay witness can give a speculative opinion “where the opinion given is one that men in general are accustomed and capable of making, comprehending, and understanding.” People v. Burton, 286 NE 2d 792 – Ill: Appellate Court, 1st Dist. 1972
“The car was going about 35 mile per hour” or “He seemed really drunk” would be acceptable lay witness opinions even though the witness didn’t have a speedometer or a breathalyzer at the time of the perception.
If a speculation objection is made always declare it a lay witness’s opinion. A perfectly acceptable response is that “the witness has demonstrated knowledge with respect to this particular subject matter” and/or “the answer is an estimate which is acceptable for a lay witness to do in this case.”
Experts and Speculative Answers
Experts can speculate in an Illinois court proceeding…to the extent of their expertise and knowledge of the relevant facts.
“Expert testimony is admissible if the proffered expert is qualified by knowledge, skill, experience, training, or education, and the testimony will assist the trier of fact in understanding the evidence.” Snelson v. Kamm, 787 NE 2d 796 – Ill: Supreme Court 2003
Speculation becomes an issue during expert testimony when the expert is speculating as to the facts his or her opinion is based upon.
“An expert opinion is only as valid as the reasons for the opinion.” Kleiss v. Cassida, 297 Ill.App.3d 165, 174, 231 Ill.Dec. 700, 696 N.E.2d 1271 (1998)
“An expert witness’ opinion cannot be based on mere conjecture and guess.” Dyback v. Weber, 500 NE 2d 8 – Ill: Supreme Court 1986
“If the basis of an expert’s opinion includes so many varying or uncertain factors that he is required to guess or surmise to reach an opinion, the expert’s opinion is too speculative to be reliable.” First Midwest Trust Co. v. Rogers, 296 Ill. App.3d 416, 427-28, 233 Ill.Dec. 833, 701 N.E.2d 1107 (1998).
The Solution To Speculative Answers In An Illinois Divorce
An Illinois divorce court can get around relying on a speculative answer by simply reserving the matter until the facts are adequately known to someone who can adequately testify to them.
An Illinois divorce court can “apportion to the nonemployee spouse an interest in pension benefits accrued during the marriage, yet at a time in futuro when the value of those benefits is no longer speculative.” In re Marriage of Fairchild, 442 NE 2d 557 – Ill: Appellate Court, 3rd Dist. 1982
If, however, you are trying to keep speculative answers out of the judge’s purview. You can remind the judge that facts may be appropriately admitted into evidence but those properly admitted facts cannot infer other facts that have not been admitted yet. So, even the judge cannot provide a speculative answer in the form of a final court order.
“[W]here from the proven facts the nonexistence of the fact to be inferred appears to be just as probable as its existence, then the conclusion that it exists is a matter of speculation, surmise, and conjecture, and the trier of fact cannot be allowed to draw it.” Wiegman v. Hitch-Inn Post of Libertyville, 721 NE 2d 614 – Ill: Appellate Court, 2nd Dist. 1999
A judge should be reminded of this in a closing statement.