Hostile witness

Introduction

A hostile witness is a witness who appears unwilling to tell the truth after being sworn in to give evidence in court.

The person who calls you as a witness expects you to provide the court with evidence similar to the account you provided earlier in a pre-trial statement. If you do not give the evidence that is expected, very little can be done. However, if you start telling lies or refuse to answer questions, the person who called you to appear as a witness can apply to the judge to have you declared a hostile witness.

Rules

If the evidence you give under oath changes significantly from what you said earlier in a pre-trial statement, 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 when the jury is not present. The judge decides whether to treat you as a hostile witness, basing their decision largely on your behaviour and credibility.

The judge has to distinguish between a hostile witness and an unfavourable witness. Just because you give unhelpful or unfavourable evidence does not mean the person calling you can attack your credibility.

What happens if I am ruled as 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 cannot ask questions about, or introduce evidence of:

  • Your bad character
  • Your past convictions
  • Any prior inconsistent statements
  • Any bias

Also, the calling barrister cannot ask leading questions 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
  • Ask leading questions in an effort to get you to say what they want
  • Cross-examine you on the statement you made before the trial

If you are cross-examined on your previous statement, that statement is only used as evidence of your inconsistency, it is not proof of the facts contained in the statement.

For more detailed information you should seek legal advice.


Further information

Procedure followed when a witness is declared hostile

The following procedure is followed if a witness is accused of contradicting their previous statement while in the witness box:

  • The solicitor or barrister applies to the judge to have the witness declared a hostile witness. They make this application when the jury is not present. They show the judge the pre-trial statement which is the basis for applying to have the witness ruled as hostile.
  • If the judge rules that the witness can be treated as a hostile witness, it is put to the witness that their pre-trial statement is significantly different from, or contradicts the evidence they have given in the witness box. This is done in the presence of the jury.
  • If the witness denies this, they are 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 their pre-trial statement is shown to them for identification. The witness’s attention is shown the part of the statement where the contradiction or difference occurs.
  • If the witness agrees that there is a contradiction or difference between their statement and the evidence they gave in court, then the witness’s credibility will no longer be discredited.
  • 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.
  • If the pre-trial 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.

Page edited: 1 March 2019