What Does It Mean to Treat a Witness as Hostile in Court

An angry witness simmers on the witness stand and is ready to throw himself at our hero at any moment – the social pariah of a lawyer who is taking on a corrupt government, big business or heinous criminals. When our hero throws several sets of questions, he is overwhelmed by the cunning of the witness. Until suddenly our hero shouts, „Permission to treat the witness as hostile?“ The judge willingly accedes to the request and a drama unfolds with high stakes, which ultimately leads to the shocking confession of the witness before a stunned jury. During cross-examination by opposing counsel, a witness is considered hostile and the investigating lawyer is not required to obtain the judge`s permission before asking suggestive questions. Lawyers can influence the responses of a hostile witness by using Gestalt psychology to influence how the witness perceives the situation and the theory of utility to understand their likely reactions. [1] Counsel will incorporate the responses expected from an enemy witness into the broader strategy of the case by planning the pre-trial and adjusting as necessary during the trial. [2] The phrase appears more in film and television than in real life. What this really means, however, is that the lawyer is looking for an opportunity to ask the witness „suggestive“ questions. A „suggestive“ question is a question that suggests the answer the lawyer wants. Examples include „You never really saw Bill that night, did you?“ or „You never reported the incident to management, did you?“ Orientation questions make it easier for the lawyer to control the dialogue, so that the jury hears the testimony in a way it chooses, while it becomes more difficult for the witness to avoid the answer to the question. A witness who testifies, which harms the case of the party who asked the witness to testify for them. However, if the witness is „hostile“ for any reason, you can ask the court to declare him or her hostile so that you can ask suggestive questions, even if the lawyer has called the witness.

Without such a demonstration, it is assumed that your own witnesses are not „hostile,“ so opposing lawyers will disagree with your questions as leaders. In U.S. evidence law, the removal of witnesses is the process of challenging the credibility of a person testifying in a trial. The Federal Rules of Evidence contain the rules of impeachment in U.S. federal courts. The judge must distinguish between an enemy witness and an unfavourable witness. Just because you don`t give useful or unfavorable evidence doesn`t mean the person calling you can attack your credibility. The purpose or purpose of seeking permission from the court to treat a witness as hostile is that the lawyer asks permission to ask suggestive questions (which are generally not admissible in the direct examination of a witness whom the lawyer has called to testify) and can accuse or discredit the witness with his or her previous statements or conduct. An enemy witness is a witness who testifies on behalf of the other party or a witness who gives unfavourable testimony to the appellant during direct examination. The term „hostile witnesses“ means „advance“ or the unfavourable witnesses are outside the Indian Evidence Act. Neal Davis is a criminal defense attorney in Houston, Texas and founder of the law firm Neal Davis, PLLC.

Neal is certified in criminal law by the Texas Board of Legal Specialization and has received national recognition for defending cases before the U.S. Supreme Court and Texas courts. In New Zealand, section 94 of the Evidence Act 2006 allows a party to cross-examine its own witness if the President determines that the witness is hostile and gives permission to do so. [6] According to the rules of evidence, you should not ask your own questions about the leads of witnesses because the main questions suggest the answer. In other words, you can respond to your witnesses, and that is not what the courts want. You want you to ask open-ended questions so that the witness can testify based on what he knows, rather than what the lawyer tells him. Direct examination is the type of questioning that usually takes place when a lawyer orders the case of his client`s boss and calls a witness to testify. The lawyer may not lead the witness to direct examination during the examination. A guiding question is one that suggests the answer, such as: „You left the bar around 22:00.m. that night .m, right? „Yes. But if the lawyer has the witness at the direct examination, the lawyer is not allowed to lead. Instead, the lawyer must resort to whom, what, why, when and how to ask questions or „Please explain it to the jury.“ or: „Please inform the Court of Justice.“ So, going back to our example of the guy leaving the bar, on direct examination, the question arises: „Now, on the night of the accident, Mr. Customer, when did you leave the bar?“ This means that the witness you are calling to testify is not on your side, that is, he or she is „hostile“ to your client`s position.

Nevertheless, you wish to call this witness to testify in your case (in which you are trying to prove your case, not to refute that of the other party) for other reasons, that is, to fill in certain facts that must be given so that you can fill your burden of proof with all the facts necessary to prove your eligibility to assert the claims claimed by your client. If the judge accepts your statement that the witness is hostile to your case, you can ask questions such as, „Isn`t it true that the traffic light was red when you first observed the blue car?“ „Isn`t it true that the traffic light was red when you first observed the blue car?“ If the witness is not „hostile“, the lawyer is not allowed to „direct“ him, that is, to propose the answer to the question. All you can do is ask open-ended questions like, „Where were you on March 20? Who, if any, was there? It is generally used when a witness who is considered neutral or even useless in any way to the lawyer`s client must be called because he or she can offer key evidence that otherwise cannot be presented. If, during the direct hearing, the investigating lawyer who summoned the witness determines that his or her testimony is antagonistic or contradicts his or her client`s legal position, the lawyer may ask the judge to declare the witness „hostile“. If the application is granted, the lawyer may ask questions of the main witness. The orientation questions suggest either the answer („You saw my client sign the contract, didn`t you?“) or challenge (accuse) the witness`s testimony). .

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