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 licensed to practice in your jurisdiction. 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 entails,
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 harassment 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 biased 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 unwilling 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 retaliate. 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 intimidating 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 discretion 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’ testimony.
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 dictating 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 impeachment purposes. In some jurisdictions, a party cannot impeach 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 Lawful Life. Be sure to check out all the excellent Quick and Dirty Tips podcasts at QuickAndDirtyTips.com.
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