The Hostile Witness
| Author | Rosemary Pattenden |
| DOI | 10.1177/002201839205600408 |
| Published date | 01 November 1992 |
| Date | 01 November 1992 |
THE
HOSTILE
WITNESS
Rosemary Pattenden
INTRODUCTION
The adversary theory of trial upon whichour system ofcriminal justice is
built assumes that the prosecution will findandproduce all the witnesses
who cangive evidencein support of the chargeagainst theaccused, that
thedefencewill present those witnesses whose evidencefavoursthe
accused, that eachpartywill exposetheweaknesses in the other's case
and that in this way thetruth will emerge. Occasionally a prosecution
witness gives evidencedamagingtothe Crowncase' or a defence witness's
evidence assists the prosecution. Since in thesecircumstances the party
againstwhomthewitness hasbeencalled will haveno interest in either
impugning the honesty of the witness orsuggesting that for other reasons
his testimony is mistaken the law ofevidenceallows thesponsoring party
to do so, otherwise the truth might not be uncovered. But for reasons
which are notentirely clear," thelaw of evidencehasforthepastthree
centuries allowed only cross-examination, or something akin to cross-
examination.' of a witness who,in theopinion of the court, is hostileand
not merely unfavourable." The object of thisarticleis tooutline some of
the problems which have arisen, andtheissues which remain, in connection
with the impeachment of a party's ownwitness in a criminaltrial.
As the common law stood in1854 aparty couldcall evidenceto
contradict the testimony of his ownwitnessif thewitness gaveevidence
unfavourable to his case,and,if thejudgewas prepared to treat the
witness as 'hostile', could cross-examine him. The authorities, however,
were in conflict astowhether he could alsoprove, as opposed to merely
cross-examine the witness about, aprior inconsistent statement." Section
22 of theCommon Law Procedure Act 1854,implementedthe recommend-
ation of theReport of theCommon Law Practice Commissioners," that
1For reasonswhy a hostilewitness might becalled by theprosecution during a criminal
trial see M Newark,'The HostileWitness and theAdversary System'
[1986J
Crim LR 441,
442 and R Munday, 'Calling a Hostile Witness'
[1989J
Crim LR 866,187.
2
It
has variously been suggestedthatthe rule stemsfrom the old method of trialby
compurgation where there was astrong identification between a party and hiswitnesses or
from thetransitionfrom inquisitorialtoadversarymethodsof fact-finding: seeM Ladd,
'Impeachment of One's Own
Witness-New
Developments' (1936) 4 U ChiL Rev69.
3Whether a party cancross-examine his own witnessas if he were awitness for theother
side is discussedbelow.
4The FiliatraLegacy
[1991J
2 Lloyd's Rep337, at p 361.
5Contrast theviews of LordDenman andBollardB in Wright v Beckett(1834) 1 M &
Rob414; 174 ER143. InDunnv Antlett(1838) 2 M &Rob122; 174
ER
235 Lord Denman
said hewas still of theopinionthat sucha statement could be provedbut in Holdsworth v
Mayor
of
Dartmouth (1838) 2 M &Rob153; 174 ER246 ParkeBfollowed theopinionof
Bollard B.The pointwas left open in Melhuishv Collier (1850) 15 QB877;117 ER690.
6Second Report (1853) p 16.
414
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