A hostile witness, also known as an adverse witness or an unfavorable witness, is a

witness In law, a witness is someone who has knowledge about a matter, whether they have sensed it or are testifying on another witnesses' behalf. In law a witness is someone who, either voluntarily or under compulsion, provides testimonial evidence, e ...

trial In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribunal ...

whose

testimony In law and in religion, testimony is a solemn attestation as to the truth of a matter. Etymology The words "testimony" and "testify" both derive from the Latin word ''testis'', referring to the notion of a disinterested third-party witness. ...

on direct examination is either openly antagonistic or appears to be contrary to the legal position of the party who called the witness. This concept is used in the legal proceedings in the United States, and analogues of it exist in other legal systems in

Western countries The Western world, also known as the West, primarily refers to the various nations and states in the regions of Europe, North America, and Oceania.

Process

During direct examination, if the examining attorney who called the witness finds that their testimony is antagonistic or contrary to the legal position of their client, the attorney may request that the judge declare the witness "hostile". If the request is granted, the attorney may proceed to ask the witness

leading questions In common law systems that rely on testimony by witnesses, a leading question is a question that suggests a particular answer and contains information the examiner is looking to have confirmed. The use of leading questions in court to elicit test ...

. Leading questions either suggest the answer ("You saw my client sign the contract, correct?") or challenge ( impeach) the witness's testimony. As a rule, leading questions are generally allowed only during

cross-examination In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination (in Ireland, the United Kingdom, Australia, Canada, South Africa, India and Pakistan known as examination-in-chief) and ...

, but a hostile witness is an exception to this rule. In cross-examination conducted by the opposing party's attorney, a witness is presumed to be hostile and the examining attorney is not required to seek the judge's permission before asking leading questions. Attorneys can influence a hostile witness's responses by using

Gestalt psychology Gestalt-psychology, gestaltism, or configurationism is a school of psychology that emerged in the early twentieth century in Austria and Germany as a theory of perception that was a rejection of basic principles of Wilhelm Wundt's and Edward ...

to influence the way the witness perceives the situation, and

utility theory As a topic of economics, utility is used to model worth or value. Its usage has evolved significantly over time. The term was introduced initially as a measure of pleasure or happiness as part of the theory of utilitarianism by moral philosopher ...

to understand their likely responses. The attorney will integrate a hostile witness's expected responses into the larger case strategy through pretrial planning and through adapting as necessary during the course of the trial.

Jurisdiction

Australia

In the state of New South Wales, the term 'unfavourable witness' is defined by section 38 of the Evidence Act which permits the prosecution to cross-examine their own witness. For example, if the prosecution calls all material witnesses relevant to a case before the court, and any evidence given is not favourable to, or supports the prosecution case, or a witness has given a prior inconsistent statement, then the prosecution may seek leave of the court, via section 192, to test the witness in relation to their evidence.

New Zealand

In New Zealand, section 94 of the Evidence Act 2006 permits a party to cross-examine their own witness if the presiding judge determines the witness to be hostile and gives permission.

References

External links

Federal Rules of Evidence
- Rule 611: Mode and Order of Interrogation and Presentation Evidence law Eyewitness {{law-term-stub