So I’m getting my daily Law and Order fix courtsey of A&E. Assistant D.A. McCoy asks for “permission to treat witness as hostile”, as he does so often.
My questions:
No further questions.
We gladly devour those who would subdue us.
The title of this thread brought to mind images of clean cut young men wearing black ties and white shirts, riding Harleys and kicking down doors.
Elmer J. Fudd,
Millionaire.
I own a mansion and a yacht.
I think the difference is on whether or not you can ask leading questions during examination? But one of our attorneys will gives us the straight dope.
Arnold is correct - this is a procedural device which allows an attorney to ask questions as if the witness were being cross-examined, even if technically he or she isn’t.
“Hostile” doesn’t necessarily mean that the witness is in the stand glaring and spitting at you, threatening to “take it outside, counsel!” Rather, this means that the witness’ interests are so aligned with the opposing party that there is thought to be some inherent bias, and some wish to try to evade providing completely direct and correct testimony. The spouse of the plaintiff, for example, might be a hostile witness to the defense, even though there is no emotional animosity present.
There’s a difference between what is allowed on direct examination and what is allowed on cross examination. “Leading” questions, for example, are not supposed to be asked in direct, but only on cross. Having a witness declared “hostile” (in California we say that we are “taking the witness on 776” - a reference to the Code Section that allows the witness to be deemed hostile) allows such leading questions.
::sighing:: Okay Dex – you got it! 
-Melin
A friend in law school explained to me that a “hostile” witness is one who, because they are demonstrably hostile to the questioning attorney, may be treated as someone who will not willingly tell the whole truth. The attorney must ask the judge for permission, and if the judge believes the witness is indeed unlikely to willingly tell the whole truth, the questioning attorney may be more direct, more leading, and generally a lot rougher on the witness because it’s the only way for the questioning attorney to elicit the answers to which he or she is entitled as an officer of the court.
Is that right, lawyers? My friend never went into practice.
Never attribute to an -ism anything more easily explained by common, human stupidity.
I would add just one point to Melin’s masterful summary: you may generally not impeach your own witness. This means that, in general, you can’t call a witness, get him to tell his story, and then try to show he’s lying. The theory is that if you think he’s lying, then you shouldn’t call him in the first place.
You may, however, under some circumstances impeach a hostile witness.
I’ve been a spectator at a few trials, and a juror 3 times. The lawyer is often the hostile one. Why does the judge never tell him/her to tone it down?
Peace,
mangeorge
I only know two things;
I know what I need to know
And
I know what I want to know
Mangeorge, 2000
For your consideration, a movie:
The Good, The Bad, and the Cross-X
Starring Clint Eastwood as the Attorney
Arnold Schwartzenneger as the Hostile Witness
Judge Judy as the Judge (I always wanted to see someone in the stand just shoot her!)
Bill Murray as the Opposing Attorney
Mira Sorvino as the Court Reporter
Now the next question is: What is a leading question?
From my terms on jury duty, I know that attorneys can’t ask questions like this:
“So, at what time did you see the defendant on November 8, 1999?”
Instead you’re supposed to go like this:
“Do you remember the events of November 8, 1999?”
“Yes.”
“Do you remember what happened around 8 pm that day?”
“Yes”
“What happened?”
“I saw the defendant try to rob the victim.”
But I’m just guessing here.
A leading question is a question which suggests what the answer is. They might be loaded with facts and require only a “Yes” or “No” answer.
“Isn’t it true, Mrs. Jones, that your husband didn’t come home until 4 a.m. on the morning of April 12?”
“Now, Mr. Smith, at the time of the accident you were travelling approximately 45 miles per hour, is that correct?”
“And at the party, you had had seven beers in just under two hours, isn’t that right?”
These are opposed to questions which try to elicit facts from the witness, such as:
“Was there a light at the intersection? Did you see it? What color was it when you saw it?”
“Did you talk to your insurance agent about what kind of coverage you needed?”
“What did you find when you searched the tank for leaks?”
It is assumed that a hostile witness will try to evade testimony about facts which are negative to the side s/he favors. That’s why a leading question is allowed.
Don’t forget, at least in civil cases, the lawyers and the witnesses have all met before, in deposition, and the lawyer knows, usually, what the witness is going to say (the lawyer SHOULD know if she’s done her job correctly!).
-Melin
That’s actually not a leading question. The question does not contain or suggest an answer (it contains the date, but asks about the time).
It might draw an objection for assuming facts not in evidence if it had not already been established that the witness saw the defendant on November 8th.