A hostile witness, also called an unfavorable witness or adverse witness, is a person who testifies during a legal trial and whose testimony during direct examination harms the case of the side that called him or her to testify. If the judge declares the witness to be hostile, the calling attorney is permitted to question the witness as if in cross-examination, which includes the use of leading questions. The hostile witness might be testifying against his or her inclination and thus is antagonistic to the questioning attorney. All witnesses called by the opposing party are assumed to be hostile witnesses from a legal perspective.
Greater Leeway for Attorneys
When the questioning attorney find that the witness' testimony is harmful to his or her client's case, even though the witness was called to testify on the client's behalf, the attorney can ask the judge to declare the witness a hostile witness. If the judge agrees, the attorney then has greater freedom in questioning the hostile witness in an attempt to get testimony that is more favorable to the client's side of the case.
The hostile witness can be more closely examined by the attorney to whom the witness is adverse. The attorney can question the truth of the witness’ statements or the motives of the witness and can make direct statements to the witness about the facts of the case. The hostile witness can then agree or deny such statements.
An example of a hostile witness might be a person who is called to testify against a friend. The witness might have specific knowledge of the facts of the case but could be unwilling to testify about those facts because his or her testimony might harm the friend's case. By having the judge declare the witness to be hostile, the calling attorney is allowed to ask leading questions in an attempt to get the witness to reveal the truth. The leading question might be a statement by the attorney about what he or she believes to be true, followed by a question asking the witness whether it is true. The witness must then verify or deny the truth of the attorney's statement or face legal repercussions for refusing to answer, and he or she could be charged with perjury if he or she gives false information on the witness stand.
Rare in Real Life
The concept of hostile witnesses is one that is greatly romanticized by many crime or legal television shows and movies. In real court cases, however, hostile witnesses are much rarer. Generally, attorneys have a fairly good idea of which witnesses are most likely to support their case. Surprise testimony by a witness who initially seemed supportive to a particular side does occur occasionally, but certainly not with the frequency as is seen in fiction. A hostile witness, however, certainly can add drama to a TV show or movie.