I suspect this next question will lead in a direction that would require a whole new thread, but isn’t that the whole point of calling your own witness? So they tell the story how you want it told? I understand that you don’t want counsel giving the testimony, but it seems there would have been extensive interviews of the witness before the trial and the lawyer will know exactly what they’re going to say. You shouldn’t need to ask leading questions if the groundwork has been laid. Am I wrong?
That’s correct, for your main witnesses. But especially in prosecutions, some witnesses may be uncooperative, for a variety of reasons, and the prosecutor may only have the police “can-say” for a particular witness before the witness is called.
Same issue can arise in a civil action. I think it’s @kayaker who’s mentioned that he was a witness once and didn’t want to talk to either side in advance?
Will likely arise in Dominion v Fox : one of Fox’s key witnesses has been dismissed and is suing Fox for wrongful dismissal, alleging that Fox lawyers told her to give misleading testimony, and is holding back recordings of Ghouliani and the Kraken admitting they don’t have evidence to back up the “steal”.
If Fox calls her, they will likely want her declared a hostile witness (purely my speculation ).
Yes, most of the time. I once had an expert witness who just wasn’t getting it on the witness stand, and wouldn’t give me the opinion I needed to get my case to the jury. We had prepared, he knew the magic words, and the opinion I needed was in his own report. Ultimately, I had to cross examine him with his own report. No one objected and he finally gave the opinion I needed.
The Federal Rule (and most states) is broader than “hostile,” and in most cases you don’t have to get the judge to declare them hostile.
Rule 611 allows leading questions “when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.” As you can imagine, lawyers might disagree on the first and third categories
An attorney sent me a subpoena to testify. She wanted to discuss my testimony beforehand, but I never returned her calls. She was attorney and client simultaneously. My testimony destroyed her case (I had written a description of what she was suing about. She did not understand that what I wrote was meant sarcastically. I had to explain that to her under oath, and boom there went her case).
As I was testifying, I used terms she was unfamiliar with. At one point she asked the judge if she could treat me as a hostile witness, asking leading questions. The judge was not amused and did not allow it.