What is a hostile witness? Often times, friends and family members of a subject are calling as witnesses in criminal cases. Sometimes, these witnesses are asked to opine about the character of the person who is accused of committing a crime, or about the conduct of the police during an arrest. The purpose behind having a “friendly” witness is to help the defense build a strong case against their opponent.
A “hostile witness” is a person who: in the course of cross-examination, asks pointed questions that tend to paint a bad picture of their opposing attorney. This is not done in an attempt to sway the jury or encourage them to side with their friend. A friendly witness may be a disgruntled former employee of the opposing lawyer, or may be a person with an axe to grind. Regardless, of their motivation, hostile witnesses rarely provide any meaningful testimony and many are used solely for the purpose of further antagonizing and hurting the attorney.
The most common example of a hostile witness is the prosecutor: who asks a series of questions about the evidence and methods used by his/her witness. While these questions do not necessarily reflect on the character of the subject, they tend to make the attorney look bad, regardless of their actual role. When a client’s attorney is guilty of asking these types of questions, they will typically be called on the stand to say, “That is such an unfair and improper question,” and will be subject to cross-examination.
The goal of a cross examination: is to expose discrepancies, mistakes, weaknesses, and inconsistencies in the evidence against a client. An attorney may ask hostile questions to either bolster their case or to undercut the credibility of their opponent. Some questions can even result in the removal of a key witness. Even if a witness is not cooperative, the court will often refuse to remove them. Conversely, many hostile witnesses are eager to cooperate. The goal is to find errors, not opinions.
In the case of a trial, open-ended questioning is standard: This means that the attorney can ask any question that is relevant without waiting for the closing arguments. Often, the leading question is one that the attorneys will try to elicit from the witness as part of their cross-examination. For example, if the prosecution calls witness A and asks, “And did you observe Mr. Smith purchases drugs from someone?”
Unfortunately, many attorneys do not practice proper protocol: when dealing with hostile and non-cooperative witnesses. In fact, some have actually encouraged hostile behavior during Closing Arguments. In one famous case, the district attorney explicitly asked a witness to repeat his testimony, once the lawyer had raised the issue of a potential conflict of interest. The witness refused to answer, and later offered a $100 cash tip to the lawyer after closing argument.
This demonstrates the importance of keeping the testimony of all witnesses confidential, even when attorneys have identified some possible conflicts.
