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Lawyers call these 'leading questions.' Think of them this way, a leading question essentially allows the lawyer to testify through the witness by designing questions that can only be answered in a yes/no format. The lawyer is not supposed to ask a question that suggests the desired answer. Normally, a lawyer is given very little latitude when questioning witnesses favorable to her positions in the case. The essence of the question is asking the court to recognize that the lawyer has called a witness to the stand on direct examination that is hostile to the claim or defense. He wouldn't answer my questions directly so I asked the judge to declare him a hostile witness. I once had a hostile witness in a criminal case where I was a prosecutor, and the witness was a cooperating criminal. Usually, a 'hostile' witness is one that won't answer your questions, shows a bias against you, or other similar reasons. Without such a showing, it is presumed that your own witnesses are not 'hostile', so opposing attorneys will object to your questions as leading. However, if the witness is 'hostile' for whatever reason then you may ask the court to declare the witness as hostile so you can ask leading questions, even if the attorney called the witness. Instead, they should ask 'What color was the light?' This way the witness answers based on their own experience.įor the first question, the other side's attorney would object to the question as "leading." They want you to ask open ended questions so the witness can testify based on what they know instead of what the attorney tells them.įor example, if you call a witness to testify that the light was red when the other side crashed into your client, the attorney cannot ask: In other words, you can spoon feed answers to your witnesses, and that's not what the courts want. Under the rules of evidence, you are not supposed to ask leading questions of your own witness because leading questions suggest the answer. This allows the attorney to cross examine the witness.Ĭorri Fetman & Associates, Ltd. When you have called a witness and are performing direct examination of this witness (because you believed they would testify as a favorable witness) but they start changing their story and are not cooperating, you may request permission to treat the witness as an adverse witness (aka 'hostile').You technically do not have to request permission from the Judge but it is always good form and respectful if you do request such permission. When you have called a witness in your own case in chief but they are an unfavorable witness or an 'adverse witness,' you may treat the witness as hostile and cross examine the witness.Treating a witness as hostile is a mechanism to cross examine the witness when there are circumstances that dictate this. All you're allowed to do is to ask open-ended questions like 'where were you on the 20th of March? Who, if anyone else, was also there?' If the Judge accepts your assertion that the witness is hostile to your case, you are permitted to 'lead' the witness with questions like, 'isn't it true that the light was red when you first observed the blue car?' If the witness is not 'hostile' the lawyer is not permitted to 'lead' the witness, i.e., to suggest the answer to the question.
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Nevertheless, you want to call that witness to testify in your case (in which you're trying to prove your case, not disprove the other side's) for other reasons, i.e., to fill in some facts that need to be stated for you to satisfy your burden of putting into evidence all of the facts necessary to demonstrate your entitlement to bring the claims your client has asserted. It means that the witness you call to testify is not on your side, i.e., is 'hostile' to your client's position.
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