objections during an Illinois trial

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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What Is An Objection In An Illinois Divorce Hearing Or Trial?

objections during an Illinois trial

A hearing or trial in an Illinois divorce is both parties presenting evidence via testimony and exhibits to an Illinois divorce judge. The divorce judge will weigh all of the evidence presented unless the divorce judge finds the evidence to be disallowed by the Rules of Evidence or case law which interpret those rules. To be completely unconsidered, proposed evidence must be objected to contemporaneously in court with a full explanation of why the evidence should not be considered.

This is incredibly difficult because the rules of evidence are not simple and the evidence, as testimony, may be unknown or unpredictable. Learning the Rules of Evidence may feel like “drinking from firehose.” So, it may be better to understand the concept of the objection itself before understanding the basis of each possible objection.

In Illinois, the finder of fact is a judge NOT a jury. “There shall be no trial by jury” 50 ILCS 5/103

Objections may not have the same weight in an Illinois divorce court as a civil court that allows juries because the judge whether to consider the evidence and weighs the evidence. Therefore, there is no inappropriate evidence which an Illinois divorce judge has actually not seen.

So, we rely on a judge’s grasp of the law to disregard evidence which was disallowed.

“[T]here is a strong presumption that judges base their findings only on competent evidence.” People v. Todd, 687 NE 2d 998 – Ill: Supreme Court 1997

If a judge makes a finding that wasn’t admitted into evidence, the matter can be appealed on that basis.

“This assumption will be overcome only if the record affirmatively demonstrates the contrary, as where it is established that the court’s finding rests on a private investigation of the evidence, or on other private knowledge about the facts in the case.” People v. Tye, 565 NE 2d 931 – Ill: Supreme Court 1990

Objections Are A Record Of Possible Error For The Appeals Court To Consider

The audience for an objection is two-fold: 1) the judge hearing the case at hand and 2) the judges who may consider the case if the case were to be appealed. So, objections need to be tailored to convince the judge and leave a sufficient record to possibly convince an appellate court.

A court reporter should be present at a divorce hearing or trial providing a full transcript of the proposed evidence and the objections thereto.

A divorce judge will be aware that a litigant is, essentially, writing a report to his or her superiors while they conduct their case and object to their opponent’s case.

An objection must be made and a post-trial motion regarding that motion must be filed for an appellate court to review that objection…otherwise you’re stuck with the evidence and/or the judge’s ruling on the objection.

“Both an objection at trial and a written post-trial motion raising the issue are necessary to preserve an error for appellate review.” Orzel v. Szewczyk, 908 NE 2d 569 – Ill: Appellate Court, 1st Dist., 1st Div. 2009

“As a general rule, both a timely trial objection and a written posttrial motion are necessary to preserve an error for appellate review.  An appellant’s posttrial motion “must contain a `simple, succinct statement of the factual or legal basis’ for the litigant’s belief that the trial court erred.  An appellant’s motion must be sufficiently specific to allow for meaningful review.  This requirement “is based on the sound policy of affording a trial judge the opportunity to reconsider and correct his rulings or otherwise take such action as may be indicated prior to appeal.” Johnson v. Johnson, 898 NE 2d 145 – Ill: Appellate Court, 1st Dist., 3rd Div. 2008 (Citation Ommitted)

If the objection is not made or not made properly, the evidence will be considered by the divorce judge.

The trial court will rule on the admissibility of the testimony or exhibit after brief argument. The objection can only be raised in an appeals court if the trial court clearly abused its authority.

“The admissibility of [the exhibit] is addressed to the sound discretion of the trial court, and a decision to admit such evidence will not be disturbed unless its exercise is clearly abused.” Slavin v. Saltzman, 643 NE 2d 1383 – Ill: Appellate Court, 2nd Dist. 1994

If the divorce judge finds the proposed evidence objectionable, whatever was said about said proposed evidence is stricken from the record as though it were never discussed.

“It is the duty of the court to strike nonresponsive answers to questions, when a proper motion to do so is made.” People v. Fritz, 417 NE 2d 612 – Ill: Supreme Court 1981

“A court is not required to exclude objectionable evidence absent an objection.”Casson v. Nash, 384 NE 2d 365 – Ill: Supreme Court 1978

The divorce judge may object to the evidence, Sua Sponte, without an objection from counsel.  

“[A] court is permitted to make rulings without objections from counsel.” People v. Thigpen, 713 NE 2d 633 – Ill: Appellate Court, 1st Dist., 2nd Div. 1999

The litigant is at the whim of the trial court as to what the trial court will admit and consider. The only way to ensure that an appeals court will properly review an objection is if the objection has the proper grounds and is timely.

Grounds For Objection In An Illinois Divorce

An objection must be made and the grounds for which the objection was made must be stated immediately for the court to consider. This will often be a quick staccato of “Objection! Relavance!” or “Objection! Asked and Answered!”

“Objections should be sufficiently specific to inform the court of the ground for the objection, and a general objection, if overruled, will not preserve the issue for review on appeal.” People v. Queen (1974), 56 Ill.2d 560, 564, 310 N.E.2d 166

“[W]hen an objection is made, specific grounds must be stated and other grounds not stated are waived on review” Jones v. Rallos, 890 NE 2d 1190 – Ill: Appellate Court, 1st Dist., 3rd Div. 2008

“The law is well-settled, that to preserve an issue for appellate review, a party must make the appropriate objections in the trial court or the issue will be deemed waived. Moreover, when an objection is made, specific grounds must be stated and other grounds not stated are waived on review. The purpose of the requirement that a specific objection be made is to allow the court an opportunity to properly consider and rule upon it” Gausselin v. Commonwealth Edison Co., 631 NE 2d 1246 – Ill: Appellate Court, 1st Dist., 6th Div. 1994

The grounds for objection are almost endless and include:

Each one of these objections has a rule and a variety of exceptions.

Objecting on the wrong grounds will cause the court to disregard any appeal based on that objection’s appropriate grounds.

“A specific objection at trial forfeits all grounds not specified.” People v. Lovejoy, 919 NE 2d 843 – Ill: Supreme Court 2009

Timeliness Of Objections In An Illinois Divorce

“[I]f a timely objection is made at trial to improper interrogation, the court can, by sustaining the objection…disregard the question and answer, usually correct the error.” People v. Hall, 743 NE 2d 521 – Ill: Supreme Court 2000

Failure to make the objection immediately constitutes a waiver of bringing it up on appeal.

Illinois law understands that it is extremely difficult to remember all the possible grounds for objection and have them ready for immediate objection. So, Illinois law allows great flexibility as to the timeliness of an objection.

“[T]he waiver rule is a principle of administrative convenience, an admonition to the parties; it is not a jurisdictional requirement or any limitation upon the jurisdiction of a reviewing court. In this regard, this court has recognized that a reviewing court may, in furtherance of its responsibility to provide a just result and to maintain a sound and uniform body of precedent, override considerations of waiver that stem from the adversarial nature of our system.” Dillon v. Evanston Hospital, 199 Ill.2d 483, 504-05, 264 Ill.Dec. 653, 771 N.E.2d 357 (2002).

Timeliness will be considered based on the facts presented and the obviousness of the objectability of the proposed evidence. If the grounds for the objection become apparent later, the objection will be considered timely.

“It has long been established that an objection to evidence is untimely if not asserted as soon as its ground becomes apparent. Where the ground for objection does not appear until after the admission of the evidence, the appropriate action for its opponent is to make a motion to strike. After the basis of the motion to strike is available, it must be made as soon as practicable, or the would-be movant will be deemed to have waived any complaint with regard to that evidence.” People v. Koch, 618 NE 2d 647 – Ill: Appellate Court, 1st Dist., 2nd Div. 1993 (Citations Omitted)

If the evidence was already admitted, the court has the power to remove the evidence via a motion to strike.

“Generally, timeliness requires that objections to evidence be made at the time the evidence is offered or as soon as the grounds for the objection become apparent.  If the grounds for objection are not apparent until after the evidence is given, a motion to strike is appropriate.  A motion to strike made at the close of the witness’s testimony is not timely.” Sinclair v. Berlin, 758 NE 2d 442 – Ill: Appellate Court, 1st Dist., 4th Div. 2001

Illinois law recognizes that the real-time nature of testimony and objection can be extremely intimidating and allows for objections that only occur to a counsel after a break in trial.

While immediate objection is strongly preferred it can be found that a party “[does]not waive this issue by waiting until a recess to voice his complaint.” Decker v. St. Mary’s Hosp., 619 NE 2d 537 – Ill: Appellate Court, 5th Dist. 1993

If a court declines to rule or delays on whether some proposed evidence is admitted to evidence or not, the objection must be voiced again or the objection shall be deemed waived.

“It is well established in Illinois that when a court reserves its ruling on the admissibility of evidence, the objecting party must insist upon a subsequent ruling, or else risk waiving its objection to that evidence.” People v. Waller, 367 NE 2d 1283 – Ill: Supreme Court 1977

How Can You Prepare To Object For An Illinois Divorce Hearing Or Trial

All the witnesses who will provide evidence via testimony will be disclosed in advance of an Illinois divorce trial.

“All dates set for the disclosure of witnesses, including rebuttal witnesses, and the completion of discovery shall be chosen to ensure that discovery will be completed not later than 60 days before the date on which the trial court reasonably anticipates that trial will commence, unless otherwise agreed by the parties. This rule is to be liberally construed to do substantial justice between and among the parties.” Ill. Sup. Ct. R. 218(c)

Exhibits and witnesses are further required to be disclosed to the opposing side in advance of an Illinois divorce hearing or trial…but only if you ask for them via interrogatory.

“The information disclosed in answer to a Rule 213(f) interrogatory, or in a discovery deposition, limits the testimony that can be given by a witness on direct examination at trial. Information disclosed in a discovery deposition need not be later specifically identified in a Rule 213(f) answer, but, upon objection at trial, the burden is on the proponent of the witness to prove the information was provided in a Rule 213(f) answer or in the discovery deposition.” Ill. Sup. Ct. R. 213(g)

Once you are aware of the potential witnesses who may testify, you may depose those witnesses in advance to inquire as to what evidence they intend to proffer to the court. The deposition will help you craft appropriate objections when you are in front of the actual judge.

Depositions are rife with objections as well.

“Objections at depositions shall be concise, stating the exact legal nature of the objection” Ill. Sup. Ct. Rule 206(c)(3)

But, for the most part, the deponent has to answer the questions unless they involve privileged information. The court itself will determine final admissibility at trial.

“Objections to the form of a question or answer, errors and irregularities occurring at the oral examination in the manner or taking of the deposition, in the oath or affirmation, or in the conduct of any person, and errors and irregularities of any kind which might be corrected if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.” Ill. Sup. Ct. R. 211

Motion In Limine As A First Round Of Objections During An Illinois Divorce Trial

Once you have a grasp of the proposed evidence and the various applicable objections, you can present the judge with a motion in limine to address those objections in advance, if the court so chooses.

The court may have made up its mind at the motion in limine conference but the parties must still get their objections on the record during the trial or have those objections waived on appeal.

“It has been held that where evidence is offered in violation of an in limine order, the opposing party must object or the issue will be considered to be waived.” Decker v. St. Mary’s Hosp., 619 NE 2d 537 – Ill: Appellate Court, 5th Dist. 1993

“The denial of a motion in limine does not in itself preserve an objection to disputed evidence that is introduced later at trial. When a motion in limine is denied, a contemporaneous objection to the evidence at the time it is offered is required to preserve the issue for review'” Simmons v. Garces, 763 NE 2d 720 – Ill: Supreme Court 2002 (Internal Quotes Omitted)

Illinois divorce law is exceptionally broad. Illinois divorce law covers everything from the best interests of a child to how to value and divide a business. It is one thing to know what the substantive rules are for every married couple’s divorce. It is another thing to know all the rules for presenting evidence to enforce those substantive rules. If you have a divorce set for trial, be sure your lawyer has a mastery over the Rules of Evidence and their exceptions and a clear understanding of the underlying concepts which bind all of these rules together. If you’d like to talk with an experienced Chicago, Illinois family law attorney, contact me today.