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

witness In law, a witness is someone who, either voluntarily or under compulsion, provides testimonial evidence, either oral or written, of what they know or claim to know. A witness might be compelled to provide testimony in court, before a grand jur ...

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, w ...

whose

testimony 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. Law In the law, testimon ...

direct examination The direct examination or examination-in-chief is one stage in the process of adducing evidence from witnesses in a court of law. Direct examination is the questioning of a witness by the lawyer/side/party that called such witness in a trial. ...

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.

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. 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 by one's opponent. It is preceded by direct examination (known as examination-in-chief in Law of the Republic of Ireland, Ireland, the Law of the United Kingdom, United Kingdom, Austra ...

, 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 to influence the way the witness perceives the situation, and

utility theory In economics, utility is a measure of a certain person's satisfaction from a certain state of the world. Over time, the term has been used with at least two meanings. * In a Normative economics, normative context, utility refers to a goal or ob ...

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 The Evidence Act 2006 is an Act of Parliament, Act of the Parliament of New Zealand that codifies the evidence (law), laws of evidence. When enacted, the Act drew together the common law and statutory provisions relating to evidence into one co ...

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