Adverse Witnesses, Leading Questions and the PCRA Hearing

The PCRA evidentiary hearing is unusual insofar as the Commonwealth is seeking to demonstrate that trial or plea counsel performed effectively for the convicted petitioner, sometimes defending positions it opposed at trial. On very rare occasions a trial/plea attorney may be willing to acknowledge that he or she performed in a deficient manner, but mostly trial/plea counsel will be attempting to justify various decisions that counsel made--thereby aligning their interests with that of the Commonwealth. PCRA counsel also may choose to present an alleged victim, law enforcement official, or prosecutor in support of a claim. These Commonwealth witnesses almost certainly do not wish to see a PCRA petitioner achieve relief.

In these situations, the witness fits under Pennsylvania Rule of Evidence 611's inclusion of an adverse (and in some cases, hostile) witness. Rule 611 allows the use of leading questions when a party "calls a hostile witness, an adverse party, or a witness identified with an adverse party." Police, prosecutors, alleged victims, are witnesses identified with the Commonwealth, and PCRA counsel should clearly be permitted to utilize that most effective manner of questioning the witness, that is, as if the witness is on cross. Of course, PCRA judges do not always allow such questioning even when the witness is plainly aligned with the Commonwealth.

A closer question exists when the witness is trial counsel, when he or she is not hostile, but is attempting to demonstrate that he or she was not ineffective. PCRA counsel may wish to seek to question the attorney as if on cross in such a situation and argue that the witness' legal interest is aligned with that of the Commonwealth. Where trial/plea counsel has refused to cooperate with PCRA counsel, PCRA counsel should request that the witness be treated as if on cross. If permitted to use leading questions, PCRA counsel should, in this author's view, ask almost nothing but leading questions.