Authors: Juan Francisco Morales del Pozo, Esq., and Juan Francisco Lara, Esq.
Introduction.—
The concept of a hostile witness is recognized in Ecuadorian civil procedural law (Article 177.7 of the COGEP), allowing the parties to ask leading questions of their own witnesses when those witnesses are evasive or hostile. However, there is no express provision regarding this concept in criminal law (COIP), which creates a gap that affects the right to a defense, the adversarial principle, and the ability to obtain reliable evidence.
This study analyzes the need to expressly incorporate the concept of the hostile witness into Ecuadorian criminal law, using a comparative approach with legal systems such as those of the United States, Argentina, and Mexico, where this concept is recognized in criminal proceedings.
Concept and Basis of the Hostile Witness.-
A hostile witness is one who behaves in a manner contrary to the party that called them to testify, exhibiting contradictions, evasiveness, or hostile attitudes during their testimony. The purpose of declaring a witness hostile is to allow leading questions in order to uncover the truth of the case.
Legal scholars such as Wigmore and Castellanos Tena emphasize that this concept is essential for protecting the proceedings, ensuring the credibility of testimony, and preserving the principles of the right to a defense and the right to cross-examination.
Comparative Legal Analysis:
- United States: Federal Rule of Evidence 611(c) permits leading questions during direct examination if the witness is declared hostile.
- Argentina: The Federal Criminal Procedure Code authorizes the use of leading questions when questioning hostile witnesses during direct examination.
- Mexico: Although not explicitly regulated, this concept is recognized in practice in criminal proceedings.
These laws show that a declaration of hostility strengthens the judicial process by ensuring reliable testimony.
Regulatory Context in Ecuador.—
Although Article 502(17) of the COIP permits leading questions during cross-examination, it does not address direct examination when a witness becomes hostile. This regulatory gap prevents prosecutors and defense attorneys from adequately addressing situations in which their own witnesses change their testimony or deny the facts, thereby compromising the substantive truth of the proceedings.
The hostile witness recognized by the COGEP is a concept inspired by common law that will, in fact, be the subject of historical and comparative analysis with other legal systems. Article 502(17) of the COIP would allow leading questions during cross-examination, which could be one of the characteristics of the conditions that would be permitted if this concept were incorporated into the law; however, it does not address this possibility in the conduct of the examination (Velazco, 2013).
Añazco (2002) argues that: “(…) Given that the concept of the hostile witness, as set forth in Art. 177.7 of the COGEP, is still not understood by either attorneys or the judges themselves” (1), it stands to reason that this is the result of a lack of regulation regarding this concept in civil matters, while in criminal matters it stems from the lack of clear definition in the law. However, should a reform be proposed, relevant scenarios from common law will be examined that highlight the importance of the hostile witness as a concept in procedural law. To this end, the testimony in the case “The People v. O.J. Simpson”—an iconic and highly publicized case that specifically falls within the criminal justice system—will be analyzed. Thanks to Bailey’s professional defense strategy—which involved direct examination that put this institution into practice during cross-examination—the utility of the hostile witness as a recurring institution in the practice of testimony is evident (p. 1).
This clear example sheds some light on how the use of a hostile witness might be interpreted under Article 177.7 of the COGEP and Article 502(17) of the COIP. A hostile witness is one who, prima facie, is called by the party itself—that is, is presented as the party’s own evidence. Although, in theory, it would not be feasible to ask leading questions, it becomes evident during the testimony that the witness is not sympathetic to the party asking the questions, whether due to their closeness to the opposing party, their relationship with the opposing party, or their attitude (which can range from aggressive and confrontational to evasive and uncooperative) (Añazco, 2002).
- Statement of the Problem. –
The problem lies in the lack of specific regulations in criminal procedure that establish the requirements and circumstances under which leading questions may be posed to a witness. In this regard, it is important to note that, in the absence of such guidelines in public law procedural regulations, neither judicial officials nor legal professionals make use of the concept of the hostile witness as a mechanism to conduct a satisfactory examination that would allow the substantive truth to be established as the procedural truth.
There are countless hypothetical scenarios in which a witness who is called upon to recount the facts with strict adherence to the truth is reluctant to do so, regardless of their motivation. Consequently, during questioning, a witness may fail to cooperate in answering questions, deviating from what both the prosecutor and the defendant’s defense counsel understand to be the case theory—whether those premises were derived from evidence gathered during the preliminary investigation or from facts that the victim understands and presumes to be true but that do not support their theory of the case. This occurs when one of the parties proposes to call a witness who, at first, appears to be helpful as evidence supporting their theory but, upon cross-examination, becomes detrimental.
In any case, a witness who fails to adhere to the facts of the case is counterproductive to the party calling that witness as evidence in the proceedings; therefore, a lack of integrity and honesty on the part of the witness in question poses a serious problem for legal certainty and the guarantee of the right to a defense. In this regard, it is worth asking: How could cases be regulated in which a party to the proceedings may request that the judge designate a witness as hostile in order to ask leading questions?
Notable Cases
- The People v. O.J. Simpson (U.S.): Witness Kaelin was declared a hostile witness in order to obtain relevant testimony that he had initially been evasive about.
- Al-Khawaja and Tahery v. United Kingdom (ECHR): The European Court emphasized the importance of allowing effective cross-examination of witnesses to ensure a fair trial.
- Israel Arzate Meléndez (Mexico): The failure to properly cross-examine hostile witnesses contributed to human rights violations.
- The Pompeya Case (Argentina): The use of this legal strategy helped expose contradictions in the testimony of manipulated witnesses.
- The "Procés" Case (Spain): Restrictions on cross-examination infringed upon fundamental defense rights.
Conclusions.—
There is a lack of regulation regarding the role of the hostile witness in criminal procedure. This poses a potential threat to legal certainty and the right to cross-examination, since the factual reality of the case is not adequately reflected in the proceedings. This shortcoming cannot be addressed through the existing rules in the COGEP, as the application of analogous provisions is not permissible in criminal matters.
The lack of regulations governing hostile witnesses undermines the principle of cross-examination, as it does not allow the questioning party to ask questions appropriate to the witness’s dishonest and uncooperative attitude. This results in the principle being rarely applied by legal professionals, and in the few cases where it is applied, judges risk conflicting with the principle of legality in criminal procedure, since the lack of procedural rules creates gaps in the practice of taking testimony.
This lack of regulation implies the need for the legislature to establish, through procedural rules, the circumstances under which a witness may be declared hostile during cross-examination. This would allow for the proper conduct of cross-examination and reinforce the principle of adversarial proceedings, even if the evidence is presented by the party conducting the cross-examination itself. Consequently, the legislature must specifically establish how, when, and what is involved in declaring a witness hostile during cross-examination.
