Hostile Witnesses

Leading questions

• Ordinarily, the court should allow leading questions: (1) . . . ; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

Evid. R. 611(c)(2)

• A leading question is one that suggests to the witness the answer desired.

Goodman v. State, 479 N.E.2d 513, 515 (Ind. 1985)

• A leading question… indicates to the witness the real or supposed fact which the examiner expects and desires to have confirmed by the answer . . . .

Vance v. State, 860 N.E.2d 617, 619 (Ind. Ct. App. 2007)

Hostile witness treatment

• A witness may be treated in much the same manner as a hostile witness if the peculiar circumstances attending the examination, such as the age, the lack of understanding, or the demeanor of the witness, so indicate.

Edwards v. State, 500 N.E.2d 1209, 1211 (Ind. 1986)

Trial court discretion

• The use of leading questions during direct examination generally rests within the trial court’s discretion…The rule expressly allows for leading questions whenever a party has called a hostile witness…

Lampkins v. State, 778 N.E.2d 1248, 1250 (Ind. 2002)

• The rule against leading questions is for the purpose of preventing the substitution of the language of the attorney for the thought of the witness as to material facts in dispute. . . . The extent to which such questions shall be permitted rests primarily with the trial court in the exercise of a sound legal discretion. ‘Cases are never reversed upon the ground that leading questions were permitted, unless it is made very clearly apparent that there was an abuse of discretion that did substantial injustice. A trial court has a large discretion in such cases, and its rulings will always be upheld where there is not a plain and inexcusable abuse of this discretionary power.’ . . .

Sowders v. Murray, 280 N.E.2d 630, 635 (Ind. App. 1972)(quoting Ezzell v. State, 205 N.E.2d 145 (Ind. 1965))

• [T]he trial court still has the discretion to determine what questions are misleading or contradictory, are relevant or irrelevant, and of such a nature that they would not inflame or prejudice the jury.

Sowders v. Murray, 280 N.E.2d 630, 635 (Ind. Ct. App. 1972)

Instances of a witness being declared hostile

• Prior to the trial court declaring her a hostile witness, Pat Drake testified on direct examination that she had lived with Purcell, that she was a good friend of Purcell, and that she would like to see Purcell found not guilty. The trial court did not commit clear error in declaring Pat Drake as a hostile witness.

Purcell v. State, 406 N.E.2d 1255, 1262 (Ind. Ct. App. 1980)

• It is asserted that the court erred in permitting the state to declare Ronnie Hanes a hostile witness and ask him leading questions. A review of the record discloses that the prosecuting attorney represented to the court that he was receiving different answers from the witness than those contained in a prior statement. Subsequent questioning of this witness bore this out. Robinson has established no clear abuse of discretion in the court's control of the examination of the witness and therefore has presented no reversible error.

Robinson v. State, 371 N.E.2d 718, 719 (Ind. Ct. App. 1978)

• A hostile witness may be asked leading questions and may be cross-examined. It appears that the witness Person had made a formal statement which led the prosecutor to believe that he would be an agreeable witness. However, at trial his hostile or adverse attitude soon became apparent as he frequently responded to questions by saying he did not know or could not remember. Thereupon, the State read questions and answers from the prior extra-judicial statement (which was not admitted into evidence) the witness had signed, and asked the witness if he had answered in the manner indicated by the statement. The witness responded to these leading questions in various ways. Sometimes the witness responded, ‘yes:’ sometimes, ‘no, I didn't:’ and once, ‘I don't remember giving that answer:’ and sometimes with an equivocation, such as, ‘I didn't say it specifically that way, . . ..’ It was not an abuse of discretion to permit this kind of questioning of a hostile witness, particularly when, as in this case, he was contradicting himself and making conflicting statements.

Rogers v. State, 315 N.E.2d 707, 710 (Ind. 1974)