In a novel version of "Perry Mason," the fictitious (mostly TV) lawyer called the actual perpetrator of the crime to the stand, as a direct witness because she had declined to testify for the prosecution (against Mason's client). Mason won the case with three questions:

Mason: Are you Martha Lavinia?
Witness: Yes.
Mason: Is this your signature on this letter?
Witness: Yes.
Mason: Please read the letter to the court.

It incriminated her.

I understand that this tactic is highly unusual, to say the least. Perhaps it is because a lawyer can't impeach his own witness or ask leading questions, whereas he can do so on "cross."

On the other hand, if a lawyer couldn't get a key (hostile) witness on the stand, except in the "worst" way, why wouldn't he do so?

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    This sounds like an interesting question, but I don't quite understand it: What is the "worst way" to get a witness to the stand, to which you allude? Also, the unlikely (and fictional) example seems only tangentially related to your question. – feetwet Sep 20 '15 at 2:16
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    Lawyers absolutely can ask leading questions to their witness if they called a hostile witness. – cpast Sep 20 '15 at 7:24

Lawyers control hostile witnesses with leading questions.

The reason Perry Mason's tactic worked in this example is because his only "real" question (which actually wasn't a question at all as the below analysis explains) was to read the letter. Since the contents of the letter were written, Mr. Mason knew exactly what the answer would be and, therefore, he had "control" over what the witness would say. Same analysis also applies for the other two "questions."

As @cpast correctly points out in his comment, the rules allow direct examination of hostile witnesses. Witnesses are designated hostile by the judge in response to a request by the attorney who calls them for direct examination.

Question Analysis

Question 1:

  • Leading. Are you Martha Lavinia?
  • Not leading. What is your name?

Question 2:

  • Leading. Is this your signature on this letter?
  • Not leading. Whose signature is on this letter?

Question 3:

  • Not a question. Please read the letter to the court.
  • Question. What does this letter say?
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    Except leading questions are allowed on direct examination of a hostile witness. That's pretty much what "hostile witness" means: "person who is actively antagonistic, so you have to ask leading questions to get anything out of them." – cpast Sep 20 '15 at 7:27
  • @cpast: You make a good point. I forgot about that and didn't have that in mind when I wrote my original answer. Now I've edited my answer accordingly. To be quite candid, it was difficult for me to figure out exactly what this question is asking. Your point about leading questions being allowed for hostile witnesses makes the point of this question even less clear to me now. So, really, I just tried to stick to analyzing the example best I could in light of what the question seemed to be touching on. Any help from the OP (or anyone else) to help clarify would be welcome and much appreciated. – Alexanne Senger Sep 20 '15 at 7:39

Your job as a lawyer is not to find the truth, but to present a case in a light that will make the jury find for your client.

Calling a hostile witness is a great opportunity to make the jury think you're not a good lawyer. It's also a great way for the witness to bring out information unfavorable to your side. You can't object to your own questions (judges will rarely strike testimony from your own questions), and if your opposing counsel likes the answers, be they inadmissible, they do not have to object either. Then this information goes before the jury.

However, calling a hostile witness can also be advantageous. For example, if you call a hostile witness who you think actually committed the crime, this witness may decide to not answer questions on 5th amendment grounds. This can be a very powerful examination, even if it doesn't lead to anything useful, because the jury now thinks that person has something to hide.

In the end, with a hostile witness, you need to ask questions the same way one does on cross. On cross you typically ask questions not to elicit more testimony, but to discredit the previous testimony on direct examination. Could you get some benefit out of doing it on direct? Maybe. Is it a good idea? Rarely.

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    Why the downvote? – Viktor Sep 21 '15 at 12:38

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