Also known as: hostile witnesses · adverse witness
Written by attorneys · grounded in primary & secondary sources — see below
A witness aligned with an opposing party or shown to be uncooperative with the calling party. Alignment or demonstrated hostility permits the calling party to use leading questions on direct examination to develop the testimony.
Ava calls Jordan, a former dispatcher for Northline Freight, in her negligence suit against the company. Jordan is openly hostile to Northline and reluctant to answer questions about dispatch practices. Ava's counsel uses leading questions to elicit details about hours violations. The court permits the leading form because Jordan is identified with the adverse party.
The government calls Daniel Cho, a former analyst at Apex Capital who signed a cooperation agreement, in a securities fraud prosecution. Cho testifies that senior managers directed falsified reports. The prosecutor uses leading questions on direct to draw out the details. The court allows the questions because Cho is identified with the adverse corporate defendant.
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Defense counsel calls a witness who previously gave statements hostile to the defendant in a civil dispute. The witness shows clear bias against the calling side during preliminary questions. Counsel seeks to use leading questions to test the account. The court recognizes the demonstrated hostility and permits the leading form on direct.
A criminal defendant seeks to call the local police chief as a witness to question lineup procedures. The chief had been subpoenaed by the state but not called. Defense counsel requests permission to treat the chief as hostile and use leading questions. The court denies the request because the chief had not yet testified and therefore could not be shown hostile at that stage.
Maria calls Daniel Reed, a current supervisor at GrandTown Stores, in her wrongful termination suit. Reed states he fears retaliation and is reluctant to testify. Maria's counsel uses leading questions to elicit reasons for the termination. The court permits the leading questions because Reed is identified with the adverse party and shows reluctance.
Investors call Leo, a junior analyst employed by Apex Brokerage, in their securities fraud suit. Leo is still employed by the defendant at the time of trial. Plaintiffs' counsel uses leading questions to establish the elements of fraud. The court permits the leading form because Leo is identified with the adverse party through his ongoing employment.
Leading questions are ordinarily permitted when the witness is hostile, an adverse party, or identified with an adverse party. The rule recognizes that such witnesses are unlikely to cooperate, so pointed questions help develop the testimony. The determination is made at the time of examination.
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Current employment with the opposing party is sufficient to treat the witness as identified with an adverse party. Courts ordinarily allow leading questions on that basis alone without requiring a separate showing of personal hostility. Former employment may also qualify depending on the depth of prior involvement.
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A party may impeach its own witness under modern rules. The common-law prohibition against impeaching one's own witness has been abandoned. This applies whether the witness is hostile or adverse.
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A showing of reluctance, confusion, or difficulty recalling routine matters may justify leading questions even without formal hostility. The court exercises discretion to develop testimony effectively. Routine or technical subjects often support limited leading on direct.
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…to do so but in self-defense. And what is the lawyer to do who has interviewed one whom he believes to be a biased, lying or hostile witness to get his unfavorable statements and know what to meet? He must record and deliver such statements even though he would not vouch for the credibility of the witness by calling him. Perhaps…