First, what you’re saying to the court regarding any witness you call is “look, listen and believe.” In calling someone to testify on behalf of your client, you are silently suggesting to the court that this person has important information to give and it should be accepted by the court.
As a result, most witnesses are friendly to the side that’s calling them to testify. Therefore, the lawyer cannot ask leading questions that tend to suggest the answer.
Not so with hostile witnesses. There, you’ve called someone whom you know will not be friendly to your case but has vital information you cannot obtain from anyone else. Sometimes it’s planned that the witness will be hostile. Other times, it’s an unpleasant surprise during questioning.
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So as a lawyer, what do you do? You have to react quickly.
When your witness is providing testimony during your case that is contradictory to the interests of your client, that witness is probably hostile.
Another common way to assess hostility is by a witness’s demeanour and manner. Not surprisingly, hostile witnesses answer abruptly, appear grumpy, sit with their arms crossed and glare at you the entire time. This, in combination with what the witness is saying, generally suggests hostility.
In law, hostility means more than just a lack of friendliness. Through a witness’s answers and demeanour, the judge usually concludes that the witness is demonstrating a propensity or wish not to tell the truth. This trend is exhibited to such an extent that the judge allows the lawyer who called that witness to cross-examine that witness, which means leading questions can be asked, often in a confrontational manner.
Case law suggests that the purpose of such cross-examination is to upset the initial presumption that the witness is credible and trustworthy and to show the court that anything the hostile witness says should not be believed.
Why would a lawyer call such a witness? Well, as stated, sometimes it’s an unpleasant surprise. Other times, you do it so that you can show the elements of a coverup or conspiracy in conjunction with the person you are suing, or the person accused of a crime. Ultimately, it’s about what our courts are supposed to strive to do: seek justice through determining the truth.
Can be detrimental
From a practical perspective, a lawyer has to tread carefully with a hostile witness. A witness who is not only hostile to your client but also smart and good on the stand is extremely dangerous to your case.
At first blush, there is a feeling that this witness is going to help your client, but that can quickly turn around and put you in a situation where you’re trying to salvage something out of the witness. This is not a great feeling for a lawyer.
Because it makes for good drama and tension, TV shows and movies set in court often come complete with a hostile witness. In reality, it happens far less frequently, but it is something a courtroom warrior has to be prepared to handle, often when it’s least expected.
