Usually, these types of questions with their own witnesses are inappropriate. The jury must hear testimony from the witness, not the lawyer. Therefore, a lawyer should ask his or her own witness open-ended questions such as who, what, where, when, why and how. The idea behind the rules is that opposing counsel`s witnesses may be biased or false, and guidance questions are a tool to fully verify the accuracy of a witness` testimony, while one`s own witnesses should be free to explain what they saw and not be influenced by a lawyer trying to win a case. And yet, there are times when the lawyer`s own witness is evasive or tends to be hostile due to the circumstances of the case. During these periods, a court may leave flexibility for the use of guidance questions because counsel`s own witness is not significantly different from that of opposing counsel. This is a very common tool when witnesses retract. So what about this permission to treat witnesses as hostile? Well, sometimes a lawyer has to call a witness in the case of his client who simply does not like the lawyer`s client so much. Well, if that witness is someone who is clearly identified with an opposing party in the case – say, the plaintiff calls to the witness stand in her case in chief, an employee of the defendant company – then the lawyer can call the witness “cross-examination”. In this case, the lawyer can start by asking questions directly from the door, from the first question.
But let`s say that the witness I have to call is a former employee of my client and for reasons unrelated to this case, this ex-employee is simply no longer a real fan of my client. The judge will probably not allow me to call the witness in my client`s boss`s case directly from the “cross-examination” box. Instead, as with direct examination, I may have to conduct the investigation with my usual questions without guiding who, what, where, when and why. However, if the witness begins to attack my client, clearly demonstrate his hostility and harm my story so well done for the jury, then I turn to the judge and say, “Your honor, can I have permission to treat the witness as hostile?” And if the judge gives that permission, I can now start using leading questions to get the witness where I want to go. An angry witness simmers on the witness stand and is ready to throw himself at our hero at any moment – the social pariah of a lawyer who is taking on a corrupt government, big business or heinous criminals. When our hero throws several sets of questions, he is overwhelmed by the cunning of the witness. Until suddenly our hero shouts, “Permission to treat the witness as hostile?” The judge willingly accedes to the request and a drama unfolds with high stakes, which ultimately leads to the shocking confession of the witness before a stunned jury. This means that the witness you are calling to testify is not on your side, that is, he or she is “hostile” to your client`s position. Nevertheless, you wish to call this witness to testify in your case (in which you are trying to prove your case, not to refute that of the other party) for other reasons, that is, to fill in certain facts that must be given so that you can fill your burden of proof with all the facts necessary to prove your eligibility to assert the claims claimed by your client. If the judge accepts your statement that the witness is hostile to your case, you can ask questions such as, “Isn`t it true that the traffic light was red when you first observed the blue car?” “Isn`t it true that the traffic light was red when you first observed the blue car?” If the witness is not “hostile”, the lawyer is not allowed to “direct” him, that is, to propose the answer to the question.
All you can do is ask open-ended questions like, “Where were you on March 20? Who, if any, was there? In general, the phrase “permission to treat a witness as hostile” indicates to both the judge and the jury that a witness is not cooperating at trial and/or is not honest with his or her answers. A lawyer may ask an enemy witness questions that he or she would not be able to ask a friendly witness, so permission may expand the manner of questioning. If, during the direct hearing, the investigating lawyer who summoned the witness determines that his or her testimony is antagonistic or contradicts his or her client`s legal position, the lawyer may ask the judge to declare the witness “hostile”. If the application is granted, the lawyer may ask questions of the main witness. The orientation questions suggest either the answer (“You saw how my client signed the contract, didn`t you?”) challenge (accuse) the witness`s testimony. Generally, questions of direction are generally only permitted during cross-examination, but an enemy witness is an exception to this rule. When I represent my client and call a witness, I generally expect that witness to support my case. Sometimes a witness has information that is NOT favorable. Since I called the witness, I can ask the court to call him “hostile.” This allows me to use the tools of cross-examination, which are generally not allowed in direct testimony. While this amusing explanation isn`t usually as exciting as it`s portrayed in the media, it`s a very useful tool for the experienced lawyer to get to the bottom of things. Can you also avoid being a witness in court? If you do not, you risk being detained for contempt of court. You cannot refuse to appear as a witness in court because you say you are being intimidated by one of the people involved in the case or because you are afraid to testify.
You can receive an invocation duces tecum. The judge must distinguish between an enemy witness and an unfavourable witness. Just because you don`t give useful or unfavorable evidence doesn`t mean the person calling you can attack your credibility. Instead, they should ask, “What was the color of the light?” In this way, the witness responds on the basis of his own experience. However, if the witness is “hostile” for any reason, you can ask the court to declare him hostile so that you can ask suggestive questions, even if the lawyer called the witness. .