Hostile Witness

A witness is referred to as a “hostile witness” if he refuses to tell the truth in a court of law after having previously sworn that he would; or if he is open against the party who called him as a witness. The side that calls the witness, be it the prosecution or the defense, believes the witness will provide similar evidence to the court that was provided in his pretrial statement. If the witness then decides to lie, or refuses to answer questions while on the stand, the party who called that witness can ask the judge to declare the witness hostile. This allows a different tactic in questioning. To explore this concept, consider the following hostile witness definition.

Definition of Hostile Witness

Noun

1. A witness who refuses to tell the truth in court after having previously declared he would do so.
2. A witness who shows bias against the case of the party who called the witness.

What is a Hostile Witness

A hostile witness is someone who appears to be refusing to tell the truth in a court of law – or one who, by his actions or statements, is contrary to the party who called him. Witnesses provide what are known as “pre-trial statements,” which are statements that essentially sum up the relevance of that witness to that particular case. Included in the statement are the facts and evidence that a witness agrees to provide in open court at the trial of the matter.

A witness is declared as hostile, however, when his account under oath changes significantly from that which was provided in his pre-trial statement. For example, a hostile witness can no longer be trusted and, as such, his own attorney can treat him as if he was working for the opposition, and can question him accordingly.

Who Can Be Considered a Hostile Witness

Hostile witnesses can only be declared as such by a judge, though it is generally at the request of the attorney posing the questions. In determining who can be considered a hostile witness, the judge decides, based on the witness’ demeanor and credibility, if the witness should, in fact, be treated as hostile. The judge can also rule that the witness is an unfavorable witness, not a hostile witness. This means that, just because the witness is providing unhelpful or unfavorable evidence, it does not mean he is doing so in an effort to be vindictive.

What Happens if Someone is Declared a Hostile Witness

If a judge decides that the witness on the stand is acting as a hostile witness, the attorney who called that witness may be given permission to pose questions as though he were cross-examining the witness. The attorney can ask the witness leading questions to get him to say what the attorney wants him to say. The attorney can also cross-examine his own witness based on the contents of the witness’ pre-trial statement. If this happens, the statement is only used as proof of the fact that the witness is giving inconsistent testimony. This does not prove whether the information contained in the statement is indeed factual.

Procedure

When a witness is declared as hostile, he is being accused of contradicting his pre-trial statement while on the witness stand. When an attorney suspects a witness of being hostile, he makes an application to the judge, absent the jury, asking the judge to treat the witness as hostile. If the judge agrees, then the jury is made aware that the witness has made a statement that significantly differed from, or contradicted, the one he had made previously.

If the witness denies this, he is then asked to step down from the stand. The person who took the witness’ pre-trial statement is then asked to come to the stand and prove to the judge that the statement was made. The witness is then asked to return to the stand, and his prior statement is shown to him so that he can identify it as his own. Specifically, the witness is shown the section of the statement that he is accused of contradicting.

If the witness agrees that a contradiction has been made, then the judge instructs the jury to disregard his testimony, and the witness is discredited. If, however, he continues to deny a contradiction, then his statement is read into evidence. This means that his statement is read to the jury as proof of the fact that he had made a contradictory statement. Once the statement is read into evidence, then the judge clarifies to the jury that what is contained in the witness’ written statement does not prove the facts in the statement. Instead, it is merely evidence showing the witness’ credibility, or lack thereof.

Leading Questions

Attorneys are prohibited by the rules of evidence from asking their own witnesses “leading questions.” A leading question is one that coaches a witness by guiding him toward the answer the attorney wants him to give. In other words, leading questions “spoon feed” the witness by putting words into his mouth. Consider the following example:

At a trial in a matter concerning a car accident, the plaintiff’s attorney calls his witness to testify to the fact that the light was red when the defendant crashed into him. The attorney is allowed to ask his witness “what color was the light?” This allows the witness to testify based on his own experience.

The attorney is not allowed to ask, “isn’t it true that the light was red?” The light may have been yellow in actuality, yet the witness may still feel pressured to testify that it was red to appease the attorney. This line of questioning can skew the truth of what actually happened. Even if the light was red, it is important that the witness come to that conclusion on his own, rather than because he was encouraged to testify, or “led,” to a particular answer by his attorney. Further, the attorney for the other side can object to this question as “leading.”

Leading questions are typically not allowed because the courts want witnesses to testify based on what they know, rather than to what their attorney tells them to say. Instead, attorneys are supposed to ask open-ended questions, and the witness can then answer with entirely unprovoked responses. However, the rules change for a witness who is declared by a judge to be “hostile.” For example, hostile witnesses can be asked leading questions in the hope that such questions will prompt testimony that the witness may otherwise be reluctant to give.

Hostile Witness Example in Murder Trial

Perhaps one of the most famous examples of a hostile witness being declared in a court case is that of Brian (“Kato”) Kaelin, during the 1995 murder trial of O.J. Simpson. Here, Deputy District Attorney Marcia Clark asked Judge Lance Ito to declare Kaelin a hostile witness, and her request was granted. Ms. Clark then tried to paint Kaelin as a witness who was changing parts of his testimony to help Simpson. She also reminded the jury that Kaelin was unable to account for Simpson’s whereabouts during the time frame when prosecutors alleged Simpson had killed his ex-wife, Nicole Simpson, and her friend, Ronald Goldman.

Clark, who had called Kaelin as a witness for the prosecution, believed Kaelin was being evasive during his testimony, and so she asked Judge Ito to declare him a hostile witness. This was so that Clark proceed with leading questions that are usually reserved for cross-examination. Both Clark and Robert Shapiro, one of Simpson’s defense attorneys, then pulled and prodded at Kaelin to get him to say what each of them wanted him to say.

Clark led Kaelin to admit that Simpson had been upset on the day of the killings, by Nicole’s efforts to limit his time with his daughter during her dance recital. Simpson was also allegedly upset over the tight dress that Nicole had apparently chosen to wear that day. Clark’s intention was to show that Simpson’s behavior reflected the passionate rage that might prompt the vicious murder that happened only hours later. Conversely, Shapiro tried to paint Simpson’s behavior as trivial, to show the jury that Simpson had only been joking around.

Kaelin had also testified three times during the same testimony that Simpson had admitted that he and Nicole were never going to get back together. Kaelin was on the stand for several days to give testimony, and as time went on, his testimony became less decisive. He struggled to pacify opposing lawyers in answering their leading questions, as well as to come to terms with his own recollections of the events that had unfolded.

One of the leading questions that Clark posed to him was about a small black knapsack Kaelin had seen near Simpson’s Bentley, shortly before Simpson left for a trip to Chicago on the day of the murders. Shapiro suggested the bag was filled with golf balls. Clark instead offered an alternative in the form of leading questions: “Now, that knapsack, was it big enough to hold a knife?… Was that knapsack big enough to hold bloody clothing and shoes?” Shapiro objected to both questions, and the judge sustained his objections.

As for Shapiro, he asked Kaelin if Simpson was “in any way acting any differently from the O. J. Simpson [he] had come to know for the last year and a half.” When Kaelin had answered, “no, not different,” Shapiro continued: “He didn’t try to put words in your mouth, did he?” To which Kaelin responded with a simple “No.” Shapiro followed up with: “Has he ever asked you to create an alibi for him or lie for him?” However, to this question, Clark successfully objected.

Shapiro noticed that Kaelin was intimidated by Clark, and he decided to exploit this in the hopes of inspiring resentment of her in the jury. He did this by badgering him with leading questions: “Are you afraid of Ms. Clark? Does she scare you? Does she make you uncomfortable? Do you think she’s given you the opportunity to do your best and to be fair? Does she intimidate you at all?” Kaelin replied that he did not fear Clark herself, but that yes, her questions were frightening.

Related Legal Terms and Issues

• Cross-Examination – The interrogation or questioning of a witness called by the opposition, often for the purpose of discrediting the witness’ testimony.
• Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
• Defense Attorney – An attorney that represents a person who is facing criminal charges.
• Objection – An attorney’s expression of disagreement over something said during a deposition or trial.
• Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
• Prosecution – The lawyer or lawyers who charge and try a case against a person who is accused of committing a crime.
• Sustain – A judge’s recognition of an objection to be valid.