In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances. (2) Statement Under the Belief of Imminent Death. (B) is now offered against a party who had - or, in a civil case, whose predecessor in interest had - an opportunity and similar motive to develop it by direct, cross-, or redirect examination. (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one and The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: (B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).īut this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying. (A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6) or (5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure: (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness or (3) testifies to not remembering the subject matter (2) refuses to testify about the subject matter despite a court order to do so (1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies A declarant is considered to be unavailable as a witness if the declarant: If you have any more questions regarding what is a hostile witness, you may want to contact an attorney.(a) Criteria for Being Unavailable. Being deemed a "hostile witness" is not necessarily a bad thing, it just means that the rules of questioning have been adjusted. There is no fear that the witness will be coached into an answer.Ī hostile witness is really just a legal term that only lawyers are concerned with. However, with a hostile witness, the attorney may ask leading questions. Typically, these questions are not allowed on direct, as an attorney could coach the witness to a desired answer simply by phrasing the question in a particular way. Generally, an attorney is not allowed to ask certain questions like leading questions of witnesses they call.Ī leading question is a question that would elicit a "yes" or "no" answer. When a court recognizes a witness as hostile, the rules of cross examination get switched up. If either is the case, the attorney will usually have to request the court to recognize the witness as hostile. In other cases, the attorney may have no other witness available, but a hostile witness. The witness may have given misleading information or the witness may have simply changed his mind. The answer is that oftentimes the attorney does not know what the witness will say. You may be wondering why an attorney would call a witness hostile to his case. So unlike the cross examination of an opposing party witness, a hostile witness is directly examined by the attorney. While a hostile witness is "hostile" to an attorney's cause, hostile witnesses typically are witnesses the attorney has called himself. There is a lot of misconception as to just who is a hostile witness.
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