Sunday, March 15, 2015

I am NOT Hostile (I'm just adverse): Trial Witness info for Writers with John Higgins, Esq.

A few of you have written to me asking for an article that explains what a hostile witness is. ThrillWriting friend, John Higgins, has kindly stepped in to illuminate this for us.

John spent 26 years in government, the last 15 years as a Deputy Attorney General and statewide prosecutor. John prosecuted cases in 19 of New Jersey's 21 counties, from simple assault to homicides including writing the plea agreement for the serial killer nurse Charles Cullen. (Information about Cullen HERE) 

Fiona - 
John, welcome and thank you for coming. We've all heard about hostile witnesses on the stand, but I'm assuming this isn't referring to their in-the-moment demeanor. Can you explain how and why a witness would be addressed with that adjective?

John - 
Well actually, it can be in-the-moment demeanor. Depending on the court rules in a specific jurisdiction, there are different requirements for someone to be considered hostile, actually.

Let me go back one step and explain how the whole witness testimony procedure works.

I will do it from a criminal trial perspective. If your readers want to do it in a civil lawsuit setting substitute plaintiff for prosecutor.

In presenting a case, the prosecutor must provide evidence for each of the elements specified in the statute that makes a criminal offense.

Under United States law, an element of a crime (or element of an offense) is one of a set of facts that must all be proven to convict a defendant of a crime. Before a court finds a defendant guilty of a criminal offense, the prosecution must present evidence that, even when opposed by any evidence the defense may choose to present, is credible and sufficient to prove beyond a reasonable doubt that the defendant committed each element of the particular crime charged. The component parts that make up any particular crime vary depending on the crime. (link)

  • Mental state (Mens Rea) - intent related blog link
  • Conduct (actus Reus) - the illegal act
  • Concurrence -  you have an illegal action and the intent to do that action at the same time
  • Causation - harm ocurred

Witness testimony is often used to fill those elements, but so can evidence in the forms of documents, pictures, DNA, etc.

The prosecutor always goes first as he or she has the burden of proof.
Witnesses are prepped before trial so we know what they will testify to or about.
Often times, there are statements already given under oath by a witness to a police officer, detective or even in front of the grand jury. (related blog post)

As prosecutors, we

  • Expect the witness' testimony to be in accord with their previous statements.
  • Prepare a witness close to trial to also make sure they remember.
  • Allow them to read any pre-existing statement of their own if need be to refresh their recollection as part of trial prep (this can also be done in while they are on the witness stand – they can review their statement but not read from it). Remember, often a case can take 2 years or more before it goes to trial.

So as we go into trial we know the lay of the land. The prosecutor in putting on his case in chief (meaning his main testimony and evidence supporting his version of the case) must elicit what is known as direct testimony - that is we are required to ask open ended questions.
to trial
So as we go into trial we know the lay of the land.

The prosecutor in putting on his case in chief ( meaning he's the one with the burden of proving his case) must elicit what is known as direct testimony - that is we are required to ask open ended questions.

We can do a bit of guided testimony to move along preliminary areas - this means we are looking for yes or no answers, which has in effect the information we are looking for as part of the question.

After we get direct testimony from our witness the defendant's attorney gets to cross examine, which means that they can ask questions that should elicit a yes or no answer.
They can ask open ended questions as well but using the yes or no answers they can box in a witness and confine them to the specific information in the question asked.

Follow me so far?

Fiona -
What if the witness wants to expound beyond a yes or no to indicate a shade of grey?

Are cross questions only supposed to be black and white?

John - 
Well a witness under cross will often try to get the information in and generally a judge will allow them to give a fuller answer to some extent. If that witness gets cut off, I can do what's known as re-direct. I can ask them to fully answer that question after the defense attorney is done with cross examination.

Fiona -
Good thank you.

John -
Now one other parameter, cross examination is limited to the topic areas covered on direct examination unless it's bringing in information like a prior criminal conviction that would impeach their truthfulness.

So redirect is also limited to the areas covered in cross examination. That way a whole new area doesn't open up. If you missed it the first time, you can't then go into it afterwards unless it's some form of rebuttal.

Generally, any witness one calls in the case in chief is a friendly witness - one who supports the prosecutor's view of the case, confirmed of course in pre trial preparation.

Now, there can also be a witness that I would rather not call because they are tied to the defendant in a significant way but for whatever reason I need information that they have and therefore have to call in my case in chief. I'm trying to think of a good example...let's say someone who can put the defendant at the location of the crime, but they are the boyfriend or girlfriend of the defendant. They do not want to testify against their loved one. (And they don't like me, lol.) They would be considered an adverse witness.

  • It’s obvious they will not want to testify for me because of their tie to the defendant.
  • I know they will be trouble for me.
  • I can argue (ask the judge) to call them as an adverse witness. (Remember, I know this ahead of time.)
  • So, I get to cross examine them from the very start, eliciting mostly yes or no answers not asking them open ended questions, confining their testimony to the certain topic

Now we get to hostile witnesses

A hostile witness technically is someone who is expected to testify consistently to what they testified to earlier. I believe they will do that but when they get on the stand they change their testimony drastically.

Fiona - 
What are some things that could make them hostile? My mind goes to threats and intimidation.

John -
That could be true, or they are playing games and trying to protect the defendant.

Generally, the prosecutor would ask a couple of questions confirming this change in testimony, and to make obvious this new version. To be safe, us their surprise I would ask for a sidebar, and then argue to the judge that I did not expect this testimony. It came out of nowhere. They had testified much differently before or told me other information.

I would then request that I be allowed to treat the witness as a hostile witness. Then I can keep their testimony much more confined through cross examination type questions.
That can also happen in pre-trial preparation, where you find out that they will be testifying as a hostile witness. Some jurisdictions require you to show more evidence to the judge if you know before hand. Similar to an adverse witness but on steroids.

A wise prosecutor is careful about these things, wanting to keep the judge up to speed. If it goes wrong in front of the jury, you could walk into mistrial territory.

Fiona - 

John -
You have to be careful what's heard in the jury's presence often in a trial the jury is kept out of the courtroom while these type things are dealt with. Once a jury hears it, they can be given a corrective instruction by the judge, but that only does so much.
If one of your witnesses just becomes really argumentative with you, you can request the court to have the witness just answer the question, but it certainly makes your case weaker.

I know that was a lot to digest....

These things present themselves on a case specific basis. Doing a trial is in many ways an art form.

Sometimes the prosecutor just elicits all the damaging information about their own witness, prior convictions, or weaknesses in the beginning of a case, admitting the problem and not giving the defense attorney the chance to make it appear that we were hiding something from the jury, or that the defense found this gaping hole in the case.

Fiona - 
Okay here they are 2 different scenarios:

1) An ex-wife wants to see ex-hubby go to jail. She is testifying. The guy is innocent, but she can put a spin on things that makes it not so clear that he's innocent - what do you do with her?

John - 
Her testimony would be in support of the state's case from what you describe. So I don't know that I would have her in hostile or adverse witness territory at all.

Now if she was lying, and I knew it. I wouldn't use her as a witness in support of my case at all.

The defense attorney will bring out her lies on cross if I didn't know she was lying. Prosecutors are not omniscient.

Fiona - 
Could the defendant's lawyer say she was hostile?

John - 
No. He gets to cross examine her if I use her as a witness first anyway. If I never called her, and he decided to call her, and he knew she was lying, he could then seek to have her treated an adverse or a hostile witness, yes.

The defense attorney is also confined to direct questions when he puts on his case.

Then I get to cross examine his witnesses.

So ...testimony in a trial goes like this:

  • Prosecutions goes first puts on a witness and has to use direct (open ended) questions.
  • Defense atty then gets to cross examine..prosecution can than redirect, defense can then recross for each of the state's witnesses.
  • After all the State witnesses are called, the State rests its case.
  • The defense gets to put on his case and calls a witness. Defense must use direct (open ended) questions.
  • Prosecution gets to cross examine.
  • Defense gets to do redirect.
  • Prosecution gets to recross
  • When all of the defense witnesses are done, then the defendant rests its case.

Fiona - 

Scenario 2) Defendant's fiance is called to testify against the love of her life. Agh! She witnessed the crime, but she doesn't want Cuddle Bear to rot in the slammer. She is on the witness stand, defiant and protective. What do you do? 

John - 
In scenario #2 she would qualify as an adverse witness right off the bat from what you describe. Mainly because of her status as the defendant’s fiancé. A better example would be: We cut a deal with the fiancée to testify against Cuddle Bear so she gets lesser charges in exchange for testimony against the guy. She remains consistent about testifying against the fiancé all through trial preparation. Now, she gets on the stand and does what you said above, becomes belligerent and now untruthful.

I would then request she be considered a hostile witness. And I would confine her testimony tightly -- get exactly what I needed from her and get her off the stand.

Remember, I can always request that the court advise her to confine her answers to the questions asked. If the defense attorney attempts to follow up on whatever she just mentioned, I can object on the basis that it's beyond the scope of the direct testimony.

Of course, any objection is at the discretion of the trial judge. He may sustain or overrule the objection.

A hostile witness can be fatal to a case.

Fiona - 
Thank you so much for that explanation. Are you sure I can't convince you to write a book - Courtrooms Explained: Information Writers?

John -
Right now, I am working on my memoirs. I'm still in the proposal stage. I'm not sure if that will take two months or two years. 

In the meantime though, we can listen to your sagesse, John is on Practical Solutions For America at 11 pm EST on the Barb Adams show every Saturday night, discussing problems in american and solutions

I know you'll want to tune in. Listening to professionals speak gives you a rhythm and tone quality that you can use in your writing. Word choices, thought processes, all of it adds to depth of character. (And you'll probably enjoy the subject matter, too.)

Here is John's website

Thank you to John for sharing his expertise and his willingness to help. 

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