Treating a witness as hostile is a mechanism for cross-examining the witness when circumstances so require. Here are 2 of these circumstances: An enemy witness is also called an enemy witness. An opposing or hostile witness is a witness whose testimony in court during DIRECT examination is “unfavorable” or “hostile” to the lawyer questioning the witness. For example, a lawyer calls the plaintiff to trial if he represents the defendant who allegedly harassed him. The lawyer may request that the complainant be characterized as “hostile” because he or she opposes the position of the defence. If the witness is described as hostile, the lawyer may then ask SUGGESTIVE questions. A key question requires a “yes” or “no” answer. Direct examination is then conducted (as if the witness were being cross-examined). If the evidence you give under oath differs significantly from what you said earlier in a pre-trial statement, the lawyer or lawyer who called you as a witness may ask the judge to decide if you are hostile. This request must be made to the judge if the jury is not present. The judge decides whether or not to treat you as an enemy witness, based largely on your conduct and credibility. According to the rules of evidence, you should not ask your own witness orientation questions, as the guiding questions suggest the answer.
In other words, you can give answers 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. Now, why might this lawyer need that permission and why might the judge grant it? Well, generally speaking, there are two rules that lawyers must follow in the trial regarding how lawyers question witnesses. In direct examination, a lawyer is generally not allowed to “lead the witness”. In cross-examination, counsel may do this and will usually only use orientation questions. This technique is used when you need the testimony of the opposing party or a relative of them (parent, spouse, employee, etc.) to make a critical point in a case. However, a lawyer must be careful because judges do not always grant the request. Then you get stuck and try to “pull” direct questions what you need, and then the other lawyer is allowed to direct a very friendly witness to you. In cross-examination by opposing counsel, a witness is presumed hostile and the examining lawyer is not required to obtain the judge`s permission before asking leading questions. Lawyers can influence the reactions of an enemy witness by using Gestalt psychology to influence the witness`s perception of the situation and utility theory to understand their likely reactions. [1] Counsel will integrate the expected responses of an enemy witness into the broader strategy of the case by planning pre-trial planning and adjusting as necessary as the process progresses.
[2] But allowing a witness to be treated as hostile is usually not that exciting. The rules of evidence allow lawyers to use key issues when cross-examining the opposing counsel`s witness. A guiding question is a question that involves the answer and usually involves a yes or no question. For example, these types of questions might begin with “Isn`t it true that you.. begin. When a lawyer calls a witness, he or she is normally only allowed to conduct direct examination. For example, a question might be, “When did you leave the store?” Once a lawyer has finished questioning a witness, the other party cross-examines the witnesses. In cross-examination, you can ask key questions.
A key question might be, “Isn`t it true that you left the store at 4:30 a.m.?” The advantage of a guiding question is that the lawyer provides the court with information about the witness. In general, the phrase “permission to treat a witness as hostile” tells the judge and jury that a witness is not cooperating at trial and/or is not honest in his or her answers. A lawyer may ask an enemy witness questions that he or she would not be able to question a friendly witness, so permission may broaden the nature of the examination. It is generally used when it is necessary to call a witness who is considered neutral or even in some way unnecessary to the lawyer`s client because he or she may offer important evidence that cannot be presented otherwise. The short answer is that it means that the lawyer asks the judge if he can insert a ring into the witness`s nose and lead him where the lawyer leads. An enemy witness, also known as an adverse witness or negative witness, is a person who testifies in a trial and whose testimony during direct examination is detrimental to the case of the party who called him or her to testify. If the judge declares the witness hostile, the appellant lawyer may examine the witness as in cross-examination, which involves the use of orientation questions. The hostile witness could testify against his inclination and is therefore hostile to the lawyer questioning. All witnesses called by the opposing party are legally considered hostile witnesses. If the investigating lawyer determines that the witness` testimony is prejudicial to his client`s case, even if the witness has been invited to testify on behalf of the client, he may ask the judge to declare the witness an enemy witness.
If the judge agrees, the lawyer has more freedom to question the enemy witness in order to obtain a statement more favorable to the client. When a lawyer asks to treat a witness as hostile, he asks the judge for permission to question him in a certain way. Traditionally, when a lawyer calls a witness in his or her main case (i.e., counsel for the plaintiff calls the defendant as a witness on behalf of the plaintiff), the witness may not be supportive of the parties` case (i.e., the defendant does not want to testify on behalf of the plaintiff). When you call your own witness who is determined to be hostile, you can do certain things, such as ask leading questions, “Were you not there that night?” instead of “Where were you that night?” It`s basically about starting the question by accepting the answer or using questions that prompt yes and no answers. The purpose of policy questions is to obtain information that would otherwise be difficult for the witness to provide if they were asking open-ended or less direct questions. The enemy witness may be questioned more closely by the lawyer to whom he is hostile. The lawyer may question the veracity of the witness`s statements or the witness`s motives and make direct statements to the witness about the facts of the case. The enemy witness may then accept or deny such statements. The purpose of asking the court for permission to treat a witness as hostile is that the lawyer asks for permission to ask leading questions (which are generally not admissible when questioned directly by a witness called by the lawyer to testify) and may accuse or discredit the witness with his or her testimony or previous conduct. Certain interrogation techniques are permitted if a witness is considered hostile, which would otherwise be reprehensible. Best example – a lawyer may ask the witness questions that lead into nature that would not otherwise be allowed.
A judge gives such permission if the witness does not answer questions correctly, if he is evasive or otherwise difficult. Usually, these kinds of questions are not suitable for his own witnesses. The jury must hear the testimony of the witness, not the lawyer. A lawyer should therefore ask his own witness open-ended questions such as who, what, where, when, why and how. The idea behind the rules is that opposing counsel`s witnesses can be biased or false, and guiding questions are a tool to fully verify the accuracy of a witness` testimony, while their own witnesses should be free to explain what they saw and not be influenced by a lawyer trying to win a case. And yet, there are times when the lawyer`s own witness is evasive or inclined to be hostile because of the circumstances of the case. At such times, a court may grant flexibility in the use of policy questions, since the lawyer`s own witness is not materially different from that of defence counsel. This is a very common tool when witnesses retract previous statements. You ask the judge to allow you to ask the witness leading questions that contain alleged elements and may even suggest the answer. If a lawyer calls a witness who is uncooperative or refuses to answer questions, he or she may be considered hostile to the judge`s discretion. If a witness is deemed hostile, counsel may use “direct” guiding questions to facilitate testimony.
During cross-examination, which takes place when the lawyer interviews a witness who is called or who is clearly connected to an opposing party, the lawyer may lead the witness. Cross-examination is a lot of fun for litigators because they can essentially testify. Theoretically, the lawyer only puts the words in the witness`s mouth and, ideally, the witness only says yes or no. And as a result, the lawyer has much more control over the conduct of the testimony.
