Thursday, May 17, 2012

The Witness and the Witless (Presenting A Hostile Witness)

By Obiter07

Some people may remember a previous impeachment where a person on the stand was addressed as “Madame Wetness” by one of the prosecution lawyers.  But the substance of the testimony by one the witnesses at the current impeachment trial is certainly not wet but rather hot and controversial.  The Ombudsman just testified that millions of dollars are allegedly held by the Chief Justice in various bank accounts. But the Ombudsman was in fact not called by those prosecuting the Chief Justice but by the latter’s defense team. Why the defense called on the Ombudsman, who presumably had evidence of the CJ’s millions of dollars, is still a mystery.  Even as she was declared as the defense team’s hostile witness. 

Exactly what is meant when she was declared as a “hostile” witness?

In the normal course of a trial, both sides are expected to call witnesses to establish their case. However, there is a peculiar situation where either the prosecution or the defense may need to call a witness who may not be sympathetic to their respective cases.  Calling a witness hostile is not automatic but has to be declared by the court -

“A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand (Section 12, Rule 132).”  

A party calls witnesses to discharge his burden of proof as it is “the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law (Section 1, Rule 131).  Hence, the defense, in calling the Ombudsman to the witness stand, must have felt that her testimony would aid their case especially since a declaration that she is a hostile witness gives them a lot of leeway in eliciting testimony.

Leading questions allowed

For example, the defense can ask leading questions of such a witness.  A leading question is something “which suggests to the witness the answer which the examining party desires.”  To illustrate:

Leading question: When was the $1,000,000.00 deposited into the Chief Justice’s account?

This is a sample leading question because it already assumes the Chief Justice has a dollar account - when such an issue is still in contention.

Alternative and non-leading questions:  In whose name is the account where the $1,000,000.00 was deposited? When was it deposited?

A leading question is not allowed, except “of an unwilling or hostile witness (Section 10, Rule 132).”   This dispenses with the tiresome task of meeting objections on questions which are framed in a leading manner.  Leading questions are actually easier to formulate.  Otherwise, questions have to be formulated in sequence and have to call only for certain specific information so as not to be objectionable.

Impeaching a hostile witness

More importantly, a hostile witness can be impeached by the party calling him to testify. 

Impeachment of adverse party's witness. — A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honestly, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present, testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. (Sec. 11, 132)

It seems ironic that the Chief Justice’s defense team may seek to impeach a witness in an impeachment case against their client.  Then again, they were the ones who asked her to testify in the first place.  The last laugh may yet be theirs as the CJ is set to testify and refute all the apparently damaging evidence and testimonies next week.

In any case, impeachment, in this context, of a hostile witness refers to being “impeached by the party presenting him in all respects as if he had been called by the adverse party, except by evidence of his bad character. He may also be impeached and cross-examined by the adverse party, but such cross-examination must only be on the subject matter of his examination-in-chief. (Section 12).”   In effect, the witness’ “credibility” is put at issue.   This is not allowed as a general rule except in certain instances which includes a hostile witness (Section 12).

So far, it seems to have been a witless strategy to have called a witness who was able to testify on matters damaging to the defense.  It may turn out that a witness hostile to the accused may be friendly to the cause of justice but not to that of a sitting Chief Justice.


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