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From what I understand, during direct examination:

  • It is assumed that the witness you called is favorable to your case, so you cannot ask them leading questions (in order to avoid coaxing them into giving the answers you want).

  • However, if the witness ends up being not favorable to your case, then you can have the judge declare him to be a "hostile" witness, therefore allowing you to ask leading questions.

But then, what in the world is the point of prohibiting leading questions by default?
If they're giving you favorable answers already, then you don't need to ask them leading questions. And if they're not, then you can ask them leading questions anyway, so what was the point of prohibiting that in the first place? I don't really understand the logic.

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if the witness ends up being not favorable to your case, then you can have the judge declare him to be a "hostile" witness, therefore allowing you to ask leading questions.

This is not really accurate.

A typically case where a witness would be called a "hostile witness" for leading question purposes would be a case where the plaintiff calls the defendant or someone closely affiliated with the defendant as a witness.

The nature of the relationship and not the actual content of the testimony determines if someone is a hostile witness. Neutral third parties are not "hostile witnesses" for this purpose even if their testimony if not favorable to your case.

The relevant Colorado Rule of Evidence which tracks the federal rule which is the model for the vast majority of states describes the rule as follows:

RULE 611 Mode and Order of Interrogation and Presentation

(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

A typical, run of the mill, example of a hostile witness who is not necessarily an adverse party or strictly identified with an adverse party would be the uncle of a criminal defendant, called by the prosecution, who is appearing to testify by subpoena because he was unwilling to testify voluntarily. See, e.g., Vigil v. People, 415 P.2d 863, 864 (Colo. 1966).

Before the Federal Rules of Evidence were adopted, a variety of precise relationships to a defendant that would qualify you as a hostile witness were set out by rule or statute, and the Federal Rules of Evidence liberalized the practice of examining hostile witnesses with leading questions by making it a general standard, rather than a more detailed rule.

  • Thanks! But doesn't this seem to go against what Wikipedia says? You say "The nature of the relationship and not the actual content of the testimony determines if someone is a hostile witness.", but Wikipedia says "During direct examination, if the examining attorney who called the witness finds that their testimony is antagonistic or contrary to the legal position of their client, the attorney may request that the judge declare the witness hostile." Is it wrong? – Mehrdad Oct 30 '17 at 19:24
  • I've added the language of the relevant rule to my answer. I would not consider Wikipedia's summary of the rule to be a fair description of what makes someone a hostile witness, although a hostile witness need not always necessarily be an adverse party or affiliate of an adverse party, and the Court has considerable discretion to allow leading questions for a variety of purposes (e.g. to get through testimony on minimally contested matters more efficiently). – ohwilleke Oct 30 '17 at 19:57
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    Contrary to Wikipedia, someone is usually declared a hostile witness before they start to testify when called, when you don't know how they will answer. – ohwilleke Oct 30 '17 at 20:19
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    It isn't horribly far from the right idea, but it is different enough that I would consider it misleading and of negative value in practice. – ohwilleke Oct 30 '17 at 20:28
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    @Mehrdad Wikipedia is a great way to learn about commonly held opinions, which are often misconceived, especially in articles that "have multiple issues" such as the one you refer to. Also do not forget that information in Wikipedia can change over time. If Wikipedia makes unsourced statements, you should verify them. Even if the statements are backed up with citations, you should check the sources. Particularly with subtle legal concepts, I've encountered several articles that have been flat wrong or just insufficiently precise. – phoog Oct 30 '17 at 21:32

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