In TV shows centred around courtroom drama, it’s not uncommon to see a witness unexpectedly turn on the side that called them, creating moments of suspense and surprise. While it makes for gripping television, such scenes also happen in real life. In legal terms, such individuals are called hostile witnesses, and addressing hostile witnesses is a serious matter governed by specific rules of evidence, especially here in Trinidad and Tobago.
Who is a Hostile Witness?
A hostile witness (sometimes referred to as a witness who proves adverse) is a person who, after being called by one party in a trial (usually the prosecution), starts giving testimony that either contradicts their earlier statements or appears to favour the opposing side. In simpler terms, they “flip the script” in court.
Not every witness who is inconsistent, forgetful, or unfavourable to the party calling him is automatically labelled as hostile. Under the Evidence Act, and based on principles inherited from English common law, a witness is only declared hostile when it is shown that they are "not desirous of telling the truth”.
This determination is not taken lightly. It’s the judge and not the lawyers who has the authority to decide whether a witness is in fact hostile. However, before a judge can exercise his/ her discretion to deem a witness hostile, certain procedural steps must be observed. Section 5 of the Evidence Act provides two options for dealing with an adverse witness. The witness may be contradicted by “other evidence”. Alternatively, the prosecution may prove that the witness made a statement inconsistent with the evidence now being given. To do this, the witness must be shown the previous statement and he/she must be asked whether or not such statement was made by them. Throughout this process, the Judge will assess the witness’s attitude, demeanour, and the nature of the inconsistencies in their testimony before making such a ruling on whether to deem them hostile.
Why Would a Witness Turn Hostile?
There are many reasons why a witness may change their story and become hostile. Fear of retaliation, personal loyalties, forgiveness, intimidation, monetary inducement, or simply retracting from their previous statements to avoid further questioning or cross-examination. In some situations, the witness lied in their first statement for one reason or the other and other times it is merely a change of heart can lead a person to suddenly become uncooperative in court. In Trinidad and Tobago, where small communities and close ties can often complicate matters, this is not uncommon, particularly in criminal trials.
The Legal Process
When a witness is declared hostile, the party who called them is allowed to cross-examine them, something normally reserved for the opposing side (usually defence counsel). This is crucial because cross-examination allows the party to confront the witness with their previous statements and challenge their credibility. This is allowed for by Section 5 of the Evidence Act.
Furthermore, Section 15 of the Evidence Act provides that a party may, with the permission of the court, cross-examine their own witness if the witness is deemed hostile. This can include references to prior inconsistent statements the witness may have made to the police or in written form.
However, earlier statements made by a witness aren’t automatically treated as proof of the truth. At first, they can only be used to challenge the witness credibility unless certain conditions are met. If those conditions are satisfied, the previous inconsistent statement can be used as actual evidence, meaning the court can rely on it for the truth of its contents. In that case, the statement is read out in court, and the jury is told they can consider it if they believe the witness really did make that earlier statement. If they don’t believe it was said, they should ignore it.
Notable Local Cases
The courts in Trinidad and Tobago have had to grapple with hostile witnesses in several cases. Most recently, the Court of Appeal in the seminal case of Norbert Aaron v The State, revisited the issue and updated the procedure to be adopted once a witness has been deemed hostile. This 2022 case, expounded on the process that was previously set out in the case of Jashier Daniel (2013) as well as Shiffie Roberts (2009).
More recently, judges and prosecutors have faced reluctant witnesses not only gang-related prosecutions, but instances where victims no longer wish to give evidence due to the lengthy delays. In these contexts, provisions within the Evidence Act becomes a vital tool for the court, even when witnesses become hostile.
Conclusion
The concept of a hostile witness underscores how unpredictable and complex the trial process can be. It also highlights the importance of thorough preparation, effective witness support, and a deep understanding of the law.
In Trinidad and Tobago, the legal system tries to balance fairness while seeking the truth. The rules around hostile witnesses ensure that when someone turns against the side that called them, there’s still a structured way to deal with it, one that respects the rights of all parties involved.
In the end, the goal remains the same – Justice!
Submitted by:
Michelle Gonzalez PD II-Junior
Public Defender Entry
Public Defenders’ Department
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port of Spain.
Contact: 638-5222
Email:
Website: www.laaa.org.tt
This article is not meant to provide legal advice but simply to provide an overview of the law on this topic.