A hostile witness is a witness who appears to be refusing to fully testify in support of the person who called them or testifies in a way that significantly differs from their pre-trial statement.
The person who calls you as a witness expects you to provide the court with evidence similar to what you may have said in a pre-trial statement. If you refuse to answer questions or contradict what you said before, the person who called you can apply to the judge to have you declared a hostile witness.
A hostile witness can have their credibility called into question and can be cross-examined and asked leading questions by the person who called them. The person who called you may also use the process in an attempt to persuade you to give evidence that agrees with your previous statement.
Who is declared a hostile witness?
If the evidence you give under oath changes significantly from what you said earlier in a pre-trial statement or if you refuse to answer questions which you could be expected to answer in a particular manner, the solicitor or barrister who called you to be a witness can ask the judge to decide if you are hostile. This application must be made to the judge without the jury present.
The judge has to decide whether you are a hostile witness or an unfavourable witness. Just because you give unhelpful or unfavourable evidence does not mean the person calling you can attack your credibility.
Procedure followed when a witness is declared hostile
While the jury is not present the solicitor or barrister applies to the judge to have the witness declared hostile. If they are making the application on the basis of a pre-trial statement then they show that to the judge.
If the judge rules that the witness can be treated as a hostile witness because of a prior inconsistent statement, then the jury is brought back in and it is put to the witness that any pre-trial statement is significantly different from, or contradicts the evidence they have given in the witness box.
If the witness denies this, then the Garda who took the statement normally goes into the witness box and proves to the judge that the statement was made (without revealing the contents of the statement).
After this, if the witness continues to deny the contradiction, then the pre-trial statement is read into evidence. It is read to the jury as proof that the witness made a contradictory or different statement to the evidence they offered while in the witness-box. The judge must make it clear to the jury that what the witness has said in the prior statement is not evidence of the facts in the statement, but only evidence relating to the credibility of the witness, unless section 16 of the Criminal Justice Act 2006 is also being invoked. Section 16 of the Criminal Justice Act 2006 gives a judge the power to admit a pre-trial statement as evidence of the facts contained in that statement, even though the witness later refuses to give evidence, denies making the statement, or contradicts it.
The statement can only be admitted if the court is satisfied that:
- The witness made it
- It was made voluntarily
- It is reliable
- The facts would be admissible if the witness gave testimony about them in court
- The witness signed an affirmation that the statement was the truth (e.g. a statutory declaration), or the court is satisfied that the witness understood that they must tell the truth
What happens if I am declared a hostile witness?
Normally, if a solicitor or barrister calls you as a witness, they cannot attack your credibility or cross-examine you as if you were a witness for the other side. They also cannot generally ask questions about, or introduce evidence of any prior inconsistent statements. The calling barrister cannot ask leading questions either in an attempt to get you to say what they want.
If the judge decides you are a hostile witness, the barrister calling you can:
- Cross-examine you on the statement you made before the trial
- Ask leading questions in an effort to get you to say what they want
If you are cross-examined on your previous statement, that statement is generally only used as evidence of your inconsistency, it is not automatically evidence of the facts contained in the statement. However, it may be possible for the person who called you to have that statement allowed as evidence of the facts contained in it.
For more detailed information you should seek legal advice.