Whether it’s at an examination for discovery or at a trial, every litigator will eventually have to handle an line of questioning for a witness. Although one would hope that every witness is a cooperative one, they sometimes aren’t.
Here are a few tips to help you handle the hostile witness.
What is a Hostile Witness?
A hostile witness is not exactly a description of the witness’ demeanour in court, but it’s more of a description of the witness’ evidence in court. Declaring a witness to be hostile is a tactic used during trials that can be both difficult and rare to see. It allows a litigator to switch to a more aggressive line of questioning a witness to uncover any falsehoods or inconsistencies that would have misled the court. Note that this is different from cross-examining opposing counsel’s witness in one key aspect: the hostile witness is likely your own witness.
Therefore, the likely scenario where it is necessary to declare a witness hostile is when your opposing counsel has not called certain witnesses that you would like to cross-examine, and you are seeking an opportunity to call a witness and use cross-examination techniques on them, as opposed to a more friendly “examination-in-chief” style.
There are two reasons why declaring a witness hostile is a rare occurrence;
- It is a very risky move, requiring near-certainty that your witness is willing to testify for you and is indeed presenting a falsehood to the court; and
- Proving that the witness is indeed hostile, and not adverse, is a difficult thing to prove to a judge.
Step 1: Prepare the paper trail
Evidence of inconsistent statements is key to declaring a witness hostile. The more evidence you have of this, the better your chances of proving that a witness’ previous statements have to be re-visited. However, in order to really prove a witness hostile, there needs to be evidence of an outright falsehood being presented in court under oath as a material fact. We’re talking about details that would change the outcome of the case!
This is likely a falsehood presented on the stand while under oath, so have the evidence ready, and compare it to the evidence that the witness is giving on the stand.
Step 2: Make your case to the judge
A judge’s tolerance to declaring a witness hostile is a difficult thing to gauge. Some judges may not be comfortable with the idea, since it could lead the proceeding astray and result in wasted time. However, most importantly is that the judge is aware of the difference between an adverse and a hostile witness, and in the absence of significant evidence of falsehoods being presented to the court, a judge may opt to keep the witness as being adverse, and not hostile. So be prepared to make the case: mount the evidence, and present it convincingly.
Step 3: Prepare for the Cross-examination
If you’ve successfully made the case for cross-examining a hostile witness, then you should be prepared to shift gears right away.
A cross-examination of any witness needs to be thorough, but cross-examining a hostile witness needs to be even more thorough. The seemingly insignificant details could be the turning point for your cross-examination, so be prepared by walking the witness through your version of events in the form of leading questions. Have an idea of a clear storyline that you want to present as the alternative version of the witness’ story, so that, as you begin to slowly break down the hostile witness’ version of the story, you begin to replace it with your own. That way, the cross-examination of a hostile witness becomes a tool to break down the opposing counsel’s version of the story, and advocating for your position at the same time.