How do you handle a hostile witness in a mock trial? How do you have a judge declare a witness “hostile”? Well, you arrived on my blog because you were searching online. And you probably noticed there is not a lot of materials on the subject online or examples on YouTube. The truth is that it is uncommon for a witness to be declared “hostile” in the real world. But the idea does have a sort of dramatic flair, so you often see people declared “hostile witnesses” on T.V. and in the movies. So since mock trial is intended to be fun, and certainly entertaining, I figured I would write a post about the subject.
First the basics. You should already know that when you are doing a direct examination (questioning your own witness) you can’t ask leading questions. But when you are cross-examining a witness, you can ask leading questions. The “hostile witness” rule changes this up a bit. A hostile witness is a witness that you call to the stand, that doesn’t want to be there, and is avoiding answering questions, and so when you have him declared a “hostile witness” the judge will allow you to ask him leading questions. Need an example? O.k. Let’s say you are prosecuting a man for bank robbery. After the robbery, the suspect shows up at his brother’s house. You call his brother to the stand. Here is how it goes….
Prosecutor: On that date, you brother arrived at you house that afternoon?
Witness: I guess so.
Prosecutor: And did you notice anything unusual?
Witness: I don’t remember, it has been a while.
Prosecutor: Any article of clothing that you remember?
Witness: What do you mean? He had pants and a shirt.
Prosecutor: Anything else?
Witness: I don’t remember too well, it was last summer.
Prosecutor: Anything to cover his head with?
Witness: Like a hat? Yeah I think I remember something like that.
Prosecutor: What did you tell the police?
Witness: I don’t remember.
Prosecutor: Would it help to look at your statement again to refresh your recollection?
Witness: Maybe. I was kind of out of it when I wrote that statement, I don’t know.
You see the problem. The prosecutor isn’t getting the answer he is looking for. And he can’t ask a leading question because he called the brother to the stand. So here is how it is done….
Prosecutor: Your honor, the State requests permission to treat the witness as hostile. The witness is avoiding answering the questions and is giving different answers then he gave to the police when he was first interviewed.
Defense attorney: We object, your honor.
Judge: Permission to treat the witness as hostile is granted.
Prosecutor: Sir, isn’t it true that when you brother arrived at your apartment that he had a ski mask?
Witness: I guess so.
Prosecutor: Well that is exactly what you told the police when they asked you about this the next day?
Witness: Well, that is correct. I did tell the police that.
In reality, the “hostile witness” idea is not necessarily all or nothing. If a witness is uncooperative, judges tend to give a little more leeway with leading questions. They don’t often formally declare a witness “hostile.” Having coached mock trial for 20 years, I don’t often see this come up too often in the scripts or packets of material that schools use. However, it is always good to be prepared. If you are on the other side, they you should always object to leading questions, and object to the witness being declared hostile. The way you object is by explaining that just because the lawyer isn’t getting the answers he or she wants doesn’t make the witness hostile. Also, you object and argue that opposing counsel hasn’t first tried to refresh the witness’s recollection.