I always see that done in movies, and hear reference to it on the news.
But what exactly is a hostile witness, and how does the term affect the proceedings?
It means that the lawyer examining the witness has more latitude in how he asks the questions. Mainly, this means that the lawyer can lead the witness (ask leading questions). A leading question is one that suggests the answer.
Normally, a lawyer cannot lead his own witness.
If the witness being hostile gives the lawyer more latitude, that implies that there are some restrictions on when or how a lawyer can call a witness hostile, or that there are other disadvantages. Otherwise, witnesses would never be called in any other way.
Both the prosecution & the defense submit lists of the witnesses they are going to call.
Prosecution witnesses are ‘hostile’ to the defense, so that lawyer gets more latitude in how he asks questions of them. Same for the prosecution lawyer questioning defense witnesses. When lawyers are questioning ‘their own’ witnesses, they are more restricted.
Sometimes this evolves into some game-playing: as a defense lawyer, you want witness x to testify, but you think the prosecution does, too. So you try to find out if they are going to call him. If so, then you can treat him as a ‘hostile’ witness, which might give you a slight advantage in questioning him. But if you leave him off your witness list because you think the prosecution will call him, but they don’t, then he isn’t called in to testify at all.
At least in Australia and England, you do not refer to a witness called by another party a “hostile witness” although you can certainly cross examine them (ask leading questions etc)
A “hostile witness” is a witness that you have called but who proves hostile. Either in demeanor, (refusing to give sensible and truthful evidence in a way that is apparent to the court) or perhaps most commonly by unexpectedly giving evidence that contradicts past statements.
For example, you are prosecuting a murder charge. Before trial the accused’s buddy gives the police a statement saying that the accused approached him begging him to tell the police that on the night of the murder the accused was at his buddy’s place, when that wasn’t true. The buddy agrees to testify. So you call him. But in the witness box suddenly the story changes and the accused’s buddy starts confirming the accused’s alibi.
As the prosecutor, you are now in trouble. Your own witness, who you may not cross examine or contradict is giving evidence for the defence. So you approach the bench and ask for a ruling that the witness be declared hostile. Typically there may be some interposed evidence in which you prove that you have the buddy on tape as saying something different. The judge declares the buddy to be a hostile witness, and now you can cross examine him, put his prior evidence to him, accuse him of lying to protect his buddy etc.
A witness whose testimony is not favorable to the party who calls him or her as a witness is a “hostile witness.” A hostile witness is usually a person that the opposing side does not want to call because the truthful testimony from such person would not help, and might hinder, their case.
Designating a witness as “hostile” does give the calling attorney the latitude to cross-examine said witness and to ask leading questions. In comparison, when you call an ordinary witness for your side, you usually simply allow the witness to tell his story and occasionally ask for clarification. The opposing side cross-examines, and afterwards, your side may elicit rebuttal testimony.
Just to be clear, a “leading question,” is a question that tends to suggest an answer.
“What, if anything, was the accused doing at that time?” is an an example of a direct, non-leading question.
“The accused was hitting the clerk with the butt of the pistol, wasn’t he?” is an example of a leading question.
If a witness is hostile, it’s assumed that drawing out testimony without leading questions will not be fruitful, and so they are permitted.
There has to be some reason for the judge to permit you to treat your own witness as hostile… it’s not just a formality; if the reason for the adverse interests are not obvious, you need to let the judge know why the witness is hostile.
- Rick
Er… I think there’s some value in distinguishing between ordinary and narrative testimony. “Simply allow the witness to tell his story” may be confused by some readers as permitting the witness to launch into a long narrative, and generally this is NOT permitted. You must pose questions to the witness and the witness must answer; you can’t plop a witness in the chair and say, “Tell the court what happened.”
The reason for this is that the other side is entitled to object to certain pieces of evidence being introduced. When a question is asked on direct examination, the other attorney hears the question as it’s being asked, before the witness has answered. He has time (admittedly, a split second) to object before the witness even answers, and more time to object during and immediately after the answer. If the witness is simply permitted to ramble, then some of that advantage is lost.
There are limited circumstances in which narrative testimony is permitted, but as a general rule, the question-answer format is required.
- Rick
The issue is mainly about leading questions, as others have indicated. The general rule is that one cannot lead one’s own witness. When one calls a witness to the stand, and begins examining the witness, one is conducting “direct examination.” The rule about direct examination is often similar to this one, from the Federal Rules of Evidence, Rule 611.
Sometimes you need to call your opponent, your opponent’s wife, or somebody who just hates lawyers to the stand in order to prove your case. The rule recognizes that when you do this, you may need the tool of leading questions in order to get questions answered. So it layws out three categories of witnesses who can automatically be led: Adverse parties (the defendant, if you represent the plaintiff), witnesses identified with an adverse party (the defendant’s wife), and hostile witnesses (the guy whose wife left him for a trial lawyer, if that makes him uncooperative on the stand).
In most courts, you can get a lot of mileage out of the “necessary to develop testimony” exception. Irrespective of that, if the witness is being evasive and uncooperative, it will take hours to get a simple answer out of them. Many lawyers will keep trying because they do not really understand the rule. As soon as it is apparent that the witness is being evasive, one can simply begin leading, using rule 611© among others as a basis. If the other party objects, one can simply point out that (a) leading is necessary to develop the testimony, and (b) the witness is hostile. This will often occur at a sidebar, which means the jury will not hear it. It can be a judgment call about whether you want to announce to the world that the witness is hostile. After all, the reason you called the witness is because the witness has evidence you need to make your case. You don’t necessarily want to impugn the witness’s credibility. So the big announcement is often not so big in real courtrooms. It depends.
But that is where the term hostile witness comes from.
And next week, the Hearsay Rule and its exceptions. Bone Up There will be a quiz.