To treat a witness as hostile means that the witness, who was called to support a party's case, gives testimony that is antagonistic, contradictory, or significantly different from their prior statements, or refuses to cooperate in a way expected by the party that called them. This situation allows the attorney who called the witness to request the judge to declare the witness "hostile." If the judge agrees, the attorney may then cross-examine the witness using leading questions, which normally are only permitted during cross-examination by the opposing party
. Key points about treating a witness as hostile include:
- The witness’s testimony is inconsistent with earlier statements or is openly antagonistic to the party that called them.
- The party calling the witness must apply to the judge (often without the jury present) to have the witness declared hostile.
- Once declared hostile, the attorney can ask leading questions to challenge the witness’s credibility and elicit more favorable or clarifying testimony.
- Prior inconsistent statements can be introduced to impeach the witness’s credibility.
- Being declared hostile does not mean the witness is lying; it means their testimony is not supportive or cooperative as expected.
- Courts consider whether inconsistencies are significant and if there is a reasonable explanation (such as memory lapses) before declaring hostility
In summary, treating a witness as hostile is a legal mechanism that permits a party to more rigorously question a witness who is not supporting their case as expected, using cross-examination techniques including leading questions to test the witness’s credibility and testimony reliability.
