Dear Straight Dope:
We've all seen this in TV court dramas — a lawyer asks permission to treat someone being cross-examined as a "hostile witness." What does this mean, and how does it affect courtroom procedure?
SDStaff Cybersybar replies:
It means the witness is hostile to the lawyer or the lawyer’s client. And people say the law has no common sense! Actually, if a lawyer is asking the court to rule that someone is a “hostile witness,” it means the lawyer is probably in trouble. Really.
Let’s clear up one misconception first. If a lawyer asks the court to rule that a witness is hostile, then the lawyer is conducting direct examination, not cross examination. Direct examination is when a lawyer questions witnesses she herself has called to the stand, in an attempt to build a case for her client. Cross examination is the process a lawyer uses to try to discredit the other side’s witnesses. Because direct and cross examination have different goals, and because a lawyer generally has time to work with her own witnesses in advance of trial, the rules for conducting direct and cross examination are different.
One crucial difference has to do with leading questions. A leading question is one which strongly suggests the desired answer, as when Perry Mason asks, “So it was YOU who gave the fatal injection to your mother, wasn’t it?” whereupon the witness immediately caves and confesses.
The rules of evidence and court procedure do not generally permit a lawyer to ask leading questions during direct examination. However, leading questions are permitted during cross examination. Why? Because everyone knows that the lawyer has a point she wishes to make to the court with a particular witness AND that the other side’s witness, if given a chance, is not going to cooperate. So the lawyer is permitted to lead the witness to get to the point.
The opposite is true of a lawyer’s own witness. The law presumes that the lawyer’s own witness is going to cooperate and that the two have probably discussed the witness’s testimony ahead of time. To prevent things from getting overly cozy on the witness stand, leading questions are not generally permitted during direct exam. So instead you get somewhat dopey-sounding questions like, “Nurse Smith, on the night of January 16th, while you were making your rounds at the hospital, did you notice anything unusual at around 9:30?” The lawyer already knows the answer, but in the interest of fairness has to pretend she doesn’t.
Sometimes, however, a lawyer’s witness won’t cooperate. Perhaps Nurse Smith saw the defendant give her mother the lethal injection, but is also the defendant’s friend. The defense isn’t going to call Nurse Smith to the stand, so the prosecution has to. But it becomes obvious to the court, through observation of the witness’s conduct on the stand, that Nurse Smith has no intention of cooperating with the prosecution–he’s hostile. In another scenario, the state’s attorney calls Nurse Smith to testify and discovers, to her dismay, that Nurse Smith has had a change of heart since his pretrial interview and no longer wants to cooperate. Maybe Nurse Smith doesn’t like the lawyer’s hair or isn’t happy about missing work.
This is when the lawyer asks the court to rule that Nurse Smith is a “hostile witness.” Why? Because there are exceptions to the rule about not asking leading questions on direct exam–and one of those exceptions is when the witness is hostile. So the exam of Nurse Smith will go something like:
“Nurse Smith, isn’t it true that you were working at Mercy Hospital on the night of January 16th?”
“Nurse Smith, isn’t it true that about 9:30 p.m., you entered the room of the defendant’s mother?”
“When you walked in, you saw the defendant sitting on her mother’s bed?”
etc., etc. Now, this explanation may not make sense based upon your experience with TV court dramas where lawyer characters use leading questions and make speeches instead of conducting proper exams of witnesses, but that’s showbiz. In real life, we don’t all look like Dylan McDermott and Lara Flynn Boyle either.
SDStaff Cybersybar, Straight Dope Science Advisory Board
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