A hostile witness is a witness who at some point after the person has been sworn in to give evidence in court, appears unwilling to tell the truth. Normally, the party that calls you as a witness does so in the belief that you will provide the court with evidence similar to the account you provided earlier in a pre-trial statement. If you do not give the evidence expected, very little can be done. If, however, you go further and start telling lies or refuse to answer questions, the party who called you can apply to the judge to have you declared a hostile witness.
When your evidence under oath begins to change materially from the account that you provided earlier in a pre-trial statement, the counsel or barrister calling you can apply to the judge for a decision as to whether or not you are hostile. This application must be made to the judge in the absence of the jury. The judge decides (largely on your demeanour and credibility) whether or not to treat you as a hostile witness.
The judge also has to distinguish between a hostile witness and an unfavourable witness. Just because you give unhelpful or unfavourable evidence it does not mean the party calling you can attack your credibility.
What happens if I am ruled as a hostile witness?
Normally, if a counsel or barrister calls you as a witness, the calling barrister is not permitted to attack your credibility or cross-examine you as if you were a witness for the other side. He/she cannot ask questions about, or introduce evidence of, your bad character, past convictions, prior inconsistent statements or bias. Also, the calling barrister cannot ask leading questions to get you to say what the barrister wants.
Where you are ruled as hostile, the barrister calling you may:
- Cross-examine you
- Ask leading questions in an effort to get you to say what they want.
- Cross-examine you on your previous statement made before the trial.
If you are cross-examined on your previous statement, that statement is only evidence of your inconsistency and is not proof of the facts contained in the statement.
For more detailed information you should seek legal advice.
Procedure followed when a witness is declared hostile
The following is a summary of the procedure that is adopted when a witness is accused of contradicting his/her previous statement while in the witness box:
- Counsel or barrister makes an application to the judge in the absence of the jury and puts before the judge the statement upon which it is sought to have the witness declared a hostile witness.
- If the judge rules that the witness may be treated as a hostile witness, in the presence of the jury it is put to the witness that the witness had previously made a statement which differed materially from, or contradicted the one he/she was making in the witness box.
- If the witness denies this, the witness is then asked to stand down from the witness box.
- To prove that the witness made the statement, the Garda who took the statement goes into the witness box and proves to the judge that the statement was made (without revealing the contents of the statement).
- The witness is then asked to go back into the witness box and the statement is shown to the witness for identification. The witness’s attention is drawn to the part of the statement in which the contradiction or difference occurs.
- If the witness agrees that there is a contradiction or difference between the statement and his/her evidence to the court, then that is the end of the matter in relation to discrediting the witness’s credibility.
- If, however, the witness persists in denying the contradiction, then the statement is read into evidence, that is, read to the jury as proof of the fact that the witness made a contradictory or different statement, to the evidence the witness offered while in the witness-box.
- Where the statement is read into evidence, the judge must make it clear to the jury that what the witness has said in the written statement is not evidence of the facts in the statement, but only evidence relating to the credibility of the witness.