法律英语：32 Hostile Witnesses

by Michael W. Flynn
 
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed¹ to practice in your jurisdiction². Further, I do not intend to create an attorney-client relationship with any listener.   
 
Today’s topic is hostile witnesses. Mario from Davis, California, called and asked:
 
On TV shows like Law & Order, whenever someone asks the judge if they
can treat the witness as hostile, I always wondered what that entails³,
and what the lawyer is allowed the ask the witness?
 
Thanks Mario. While common in TV shows, designating a witness as hostile is rare in actual courtrooms. The short answer is that a hostile witness is subject to different rules for direct examination by an attorney than other witnesses.
 
In a normal trial, both parties call witnesses to testify as to facts or theories that support that party’s theory of the case. Normally, the witnesses that each party calls are not considered hostile because those witnesses are presumed to be friendly to the side calling them. For example, an employee suing their employer for harassment⁴ might call a co-employee to testify about working conditions. That witness is presumed to be friendly and helpful to the employee’s case.
 
Normally, all witnesses called by the opposing party are presumed hostile. This is typically due to the adversarial nature of the American justice system. So, an officer of the company defending itself against the harassment suit is likely biased⁵ towards the company and will testify in the company’s best interests. So, the officer is automatically a hostile witness to the employee’s case.
 
However, sometimes a party will call a witness that is either unwilling⁶ or reluctant to testify. For example, a manager of the company might be unwilling to testify about the officer’s discriminatory behavior because the officer might retaliate⁷. If the manager gives evasive answers, or treats the employee’s attorney contemptuously, then the attorney can ask the judge to deem the manager a hostile witness. In cases where children are called as witnesses, they are often reluctant to speak in the intimidating⁸ environment of a courtroom. Or, a child who was the subject of physical or sexual abuse might not want to talk about his experiences. The trial judge has broad discretion⁹ to determine which witnesses are hostile, and which are not.
 
If a witness is presumed hostile, or declared hostile by the judge, it changes a few things. The most important is the way that the attorney is allowed to ask a hostile witness questions. Normally, an attorney cannot ask its own, non-hostile witnesses leading questions. A leading question is one whose answer is presumed in the question, often answerable with a simple “yes” or “no.” For example, a non-leading question would be, “What color was the light?” A leading question would be, “The light was red, wasn’t it?” Leading questions tend to coach the witness because they tell the witness what to say. Non-leading questions force the witness to come up with their own answers.
 
Generally, an attorney may ask leading questions to hostile witnesses only. In normal trials, leading questions are reserved for cross-examining the opposing side’s witnesses; all witnesses called by the opposing side are presumed hostile. But, when a judge determines that a witness is hostile, then the attorney who called him may use leading questions to help focus the hostile witness’ testimony¹⁰.
 
Another effect this has is that it can make the scope of a direct examination difficult to manage. Normally, an attorney asks his own witness non-leading questions, and the witness answers accordingly. But, with leading questions, the attorney is effectively dictating¹¹ the scope of the testimony because he limits it in the very structure of his questions. To make sure that the testimony stays on topic, a trial judge must use his discretion to limit the attorney’s questioning.
 
Last, determining that a witness is hostile is important for impeachment¹³ purposes. In some jurisdictions¹⁴, a party cannot impeach¹² his own witness, unless that witness is declared hostile. This arises in criminal cases sometimes where a witness gives pretrial statements about a crime, but then changes his testimony at trial because he is scared. In that situation, an attorney wants to show to the jury that the witness was telling the truth before, but is lying now. In jurisdictions that limit impeachment to hostile witnesses, the attorney would have to establish that the witness is now hostile before evidence of the pretrial statement could be introduced.
 
But, as I mentioned before, declaring a witness hostile is rare. Dramatic, but rare. Most witnesses testify truthfully, and are inherently biased towards the side that called them. Only in rare circumstances does a court need to step in to declare a witness hostile.
 
Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful¹⁵ Life. Be sure to check out all the excellent Quick and Dirty Tips podcasts at QuickAndDirtyTips.com.
.  
 
You can send questions and comments to.............call them in to the voicemail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.
 
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1 licensed   

adj.得到许可的v.许可，颁发执照(license的过去式和过去分词)

参考例句：

• The new drug has not yet been licensed in the US. 这种新药尚未在美国获得许可。
• Is that gun licensed? 那支枪有持枪执照吗？

2 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

3 entails   

使…成为必要( entail的第三人称单数 )； 需要； 限定继承； 使必需

参考例句：

• The job entails a lot of hard work. 这工作需要十分艰苦的努力。
• This job entails a lot of hard work. 这项工作需要十分努力。

4 harassment   

n.骚扰，扰乱，烦恼，烦乱

参考例句：

• She often got telephone harassment at night these days.这些天她经常在夜晚受到电话骚扰。
• The company prohibits any form of harassment.公司禁止任何形式的骚扰行为。

5 biased   

a.有偏见的

参考例句：

• a school biased towards music and art 一所偏重音乐和艺术的学校
• The Methods: They employed were heavily biased in the gentry's favour. 他们采用的方法严重偏袒中上阶级。

6 unwilling   

adj.不情愿的

参考例句：

• The natives were unwilling to be bent by colonial power.土著居民不愿受殖民势力的摆布。
• His tightfisted employer was unwilling to give him a raise.他那吝啬的雇主不肯给他加薪。

7 retaliate   

v.报复，反击

参考例句：

• He sought every opportunity to retaliate against his enemy.他找机会向他的敌人反击。
• It is strictly forbidden to retaliate against the quality inspectors.严禁对质量检验人员进行打击报复。

8 intimidating   

vt.恐吓，威胁( intimidate的现在分词)

参考例句：

• They were accused of intimidating people into voting for them. 他们被控胁迫选民投他们的票。
• This kind of questioning can be very intimidating to children. 这种问话的方式可能让孩子们非常害怕。

9 discretion   

n.谨慎；随意处理

参考例句：

• You must show discretion in choosing your friend.你择友时必须慎重。
• Please use your best discretion to handle the matter.请慎重处理此事。

10 testimony   

n.证词；见证，证明

参考例句：

• The testimony given by him is dubious.他所作的证据是可疑的。
• He was called in to bear testimony to what the police officer said.他被传入为警官所说的话作证。

11 dictating   

v.大声讲或读( dictate的现在分词 )；口授；支配；摆布

参考例句：

• The manager was dictating a letter to the secretary. 经理在向秘书口授信稿。 来自辞典例句
• Her face is impassive as she listens to Miller dictating the warrant for her arrest. 她毫无表情地在听米勒口述拘留她的证书。 来自辞典例句

12 impeach   

v.弹劾；检举

参考例句：

• We must impeach the judge for taking bribes.我们一定要检举法官收受贿赂。
• The committee decided to impeach the President.委员会决定弹劾总统。

13 impeachment   

n.弹劾；控告；怀疑

参考例句：

• Impeachment is considered a drastic measure in the United States.在美国，弹劾被视为一种非常激烈的措施。
• The verdict resulting from his impeachment destroyed his political career.他遭弹劾后得到的判决毁了他的政治生涯。

14 jurisdictions   

司法权( jurisdiction的名词复数 )； 裁判权； 管辖区域； 管辖范围

参考例句：

• Butler entreated him to remember the act abolishing the heritable jurisdictions. 巴特勒提醒他注意废除世袭审判权的国会法令。
• James I personally adjudicated between the two jurisdictions. 詹姆士一世亲自裁定双方纠纷。

15 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。