Hostile Witness Examination
I. What is a Hostile Witness?
A hostile witness (also called an adverse witness) is a witness who, after being called by a party (usually the prosecution or plaintiff), shows unfavorable demeanor, unwillingness, or antagonism to that party’s case. This witness may:
Refuse to answer questions straightforwardly.
Contradict prior statements.
Show bias or hostility toward the party that called them.
Because the witness is effectively opposing the party that summoned them, special rules govern how they can be cross-examined.
II. Legal Framework of Hostile Witness Examination
1. Examination in Chief vs. Cross Examination
Normally, examination-in-chief (direct examination) prohibits leading questions.
But if a witness is declared hostile, the party calling them can cross-examine the witness, including using leading questions to challenge or impeach their testimony.
2. Judicial Discretion
The court must declare a witness hostile before allowing cross-examination by the party that called them.
This is usually done on the party’s application and is based on the witness’s evident antagonism or contradiction.
3. Purpose
To test the credibility of the witness.
To impeach their adverse testimony.
To bring out the truth by probing inconsistencies.
III. Key Principles
Leading questions allowed on hostile witness examination.
Witness declared hostile by the judge.
Party calling the witness can cross-examine, usually after the witness has provided unfavorable answers.
Important for ensuring justice by fully exploring the facts.
IV. Case Law: Detailed Analysis
1. R v. Fitzpatrick (1883) 14 Cox CC 153
Facts:
In a criminal trial, the prosecution called a witness who gave testimony unfavorable to the prosecution.
The prosecution requested the witness to be declared hostile.
Legal Issue:
Can the prosecution cross-examine their own witness as if cross-examining the defense’s witness?
Ruling:
The court held that once the witness is declared hostile, the party calling them may use leading questions to test their credibility.
The judge must be satisfied that the witness is hostile or adverse to the party who called them.
Significance:
Established the principle of hostile witness examination.
Clarified that hostile witness examination is an exception to the rule against leading questions in direct examination.
2. R v. Hodge (1860) 1 F & F 403
Facts:
A witness for the prosecution refused to answer certain questions and contradicted earlier statements.
Prosecution asked for the witness to be declared hostile.
Ruling:
The court emphasized that hostility means uncooperative or antagonistic attitude, not just a contradictory answer.
The judge must carefully evaluate before declaring a witness hostile.
Significance:
Set the standard for when a witness can be declared hostile.
Distinguished between simple contradictions and genuine hostility.
3. State v. Geethanjali (Indian case, 1989)
Facts:
A witness called by the prosecution retracted statements favorable to the prosecution during examination-in-chief.
Prosecution applied to treat the witness as hostile.
Ruling:
The court allowed the witness to be declared hostile and permitted leading questions.
Emphasized that the protection of justice permits cross-examination of one’s own witness when hostility appears.
Significance:
Reinforced the principle that the search for truth overrides rigid procedural rules.
Highlighted the need for judicial discretion in hostile witness declarations.
4. R v. Durham (1993) 96 Cr App R 159 (England & Wales)
Facts:
A key prosecution witness became uncooperative and gave contradictory evidence.
The prosecution requested the witness be declared hostile.
Ruling:
The appellate court ruled that declaring a witness hostile is within the trial judge’s discretion.
The court held that the judge must assess the witness’s demeanor, tone, and contradictions.
Significance:
Affirmed the trial judge’s role in controlling the proceedings.
Confirmed that hostile witness examination is a procedural safeguard, not a right.
5. People v. Johnson (U.S., 1973) 494 P.2d 365
Facts:
The prosecution’s witness recanted prior statements during direct examination.
The prosecution sought to cross-examine the witness as hostile.
Legal Issue:
Whether the prosecution must establish actual hostility or contradiction to justify cross-examination.
Ruling:
The court held that evidence of contradiction or evasiveness justifies declaring a witness hostile.
Leading questions are permitted once hostility is established.
Significance:
Emphasized that contradiction and evasiveness are sufficient grounds.
Provided flexibility for prosecutors to handle adverse witnesses.
V. Summary Table of Cases
| Case | Jurisdiction | Issue | Ruling | Principle Established |
|---|---|---|---|---|
| R v. Fitzpatrick (1883) | UK | Leading questions on own witness | Allowed after hostile declaration | Hostile witness examination principle |
| R v. Hodge (1860) | UK | Definition of hostility | Judge must ascertain true hostility | Distinguishing hostility from contradiction |
| State v. Geethanjali (1989) | India | Retraction of testimony | Hostile witness allowed | Judicial discretion to declare hostility |
| R v. Durham (1993) | UK | Judge’s discretion | Trial judge controls hostile declaration | Discretionary safeguard |
| People v. Johnson (1973) | USA | Contradictory witness | Contradiction sufficient for hostility | Flexibility in handling hostile witnesses |
VI. Practical Tips for Hostile Witness Examination
Application to declare witness hostile: Must be made formally.
Use leading questions to challenge the witness’s version.
Pinpoint contradictions with prior statements.
Maintain control and keep questions clear and concise.
Use hostile witness examination to reveal the truth, not to badger or intimidate unfairly.
VII. Conclusion
Hostile witness examination is a vital tool in courtroom procedure that allows a party to cross-examine its own witness when the witness turns adverse or uncooperative. It serves to:
Protect the party calling the witness.
Ensure that truth emerges despite witness hostility.
Provide flexibility in evidence gathering.
The courts have consistently emphasized judicial discretion, proper identification of hostility, and the need for fair treatment of witnesses. The case law discussed here offers solid guidance on when and how hostile witness examination should be conducted.
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