NCJ Number
104523
Journal
Criminal Law Review Dated: (1986) Pages: 441-454
Date Published
1986
Length
14 pages
Annotation
This paper argues that the English rule which prevents attorneys from discrediting their own witnesses cannot be reconciled with adversary theory, although it has encouraged adversarial responsibility for witnesses by isolating the dishonest witness for separate treatment.
Abstract
The article describes the early 19th century adversary system in criminal cases when the hostile witness exception began to take root. After 1847, the prosecution had to base the claim that the witness was hostile on the witness' treachery taking the prosecution by surprise. As the rule evolved, the test of hostility shifted from surprise and treachery to manifest antipathy. Today, hostile witness is clearly the witness who is unwilling to tell the truth at the insistence of the party calling him or her. The real decision regarding hostility is based on the sincerity of the witness. Drawing on this perspective, the paper reviews court procedures developed to identify hostile witnesses. Three procedures for dealing with hostile witnesses are discussed: persuading the witness to tell the truth, discrediting the witness, and cross-examining by opponent and re-examining. 73 footnotes.