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How to Handle a Hostile Witness

The following is a transcript of " The Legal Lad's Quick and Dirty Tips for a More Lawful Life, " a podcast from . The audio program is available via RSS feed here and at's podcast home page .

Hello, and welcome to Legal Lad's Quick and Dirty Tips for a More Lawful Life.

But first, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.

Today's topic is hostile witnesses. Mario from Davis, Calif., called and asked:

On TV shows like Law & Order, whenever someone asks the judge if they can treat the witness as hostile, I always wondered what that entails, and what the lawyer is allowed the ask the witness?

Thanks Mario. While common in TV shows, designating a witness as hostile is rare in actual courtrooms. The short answer is that a hostile witness is subject to different rules for direct examination by an attorney than other witnesses.

In a normal trial, both parties call witnesses to testify as to facts or theories that support that party's theory of the case. Normally, the witnesses that each party calls are not considered hostile because those witnesses are presumed to be friendly to the side calling them.

For example, an employee suing an employer for harassment might call a co-employee to testify about working conditions. That witness is presumed to be friendly and helpful to the employee's case.

Normally, all witnesses called by the opposing party are presumed hostile. This is typically due to the adversarial nature of the American justice system. So, an officer of the company defending itself against the harassment suit is likely biased toward the company and will testify in the company's best interests. So, the officer is automatically a hostile witness to the employee's case.

However, sometimes a party will call a witness that is either unwilling or reluctant to testify. For example, a manager of the company might be unwilling to testify about the officer's discriminatory behavior because the officer might retaliate. If the manager gives evasive answers, or treats the employee's attorney contemptuously, then the attorney can ask the judge to deem the manager a hostile witness.

In cases where children are called as witnesses, they are often reluctant to speak in the intimidating environment of a courtroom. Or, a child who was the subject of physical or sexual abuse might not want to talk about his experiences. The trial judge has broad discretion to determine which witnesses are hostile, and which are not.

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