Can you refuse to testify in court as a witness? Many people have asked this question, but first, let’s reduce the scope to the witness and not the defendant of the case.
A witness may refuse to go to the court to testify, but if the witness has been subpoenaed, the attorney responsible for the subpoena can request the court to issue a bench warrant.
The approval of this bench or arrest warrant means the witness will be arrested and transported to the court to testify.
How You Became a Witness
You may have issued a statement to the police, which makes you a witness to the crime. And it’s likely that you were recorded with video or audio in an attorney’s absence. So, when you’re subpoenaed for trial, the court already possesses physical or written evidence of you as a witness.
What Are Your Options?
You may have 3 options when questioned by the court or counsel if you’re called as a witness to give statements in court.
- Testify in court.
- Invoke or turn to your Fifth Amendment right against self-incrimination. Only take this up if you are confident that your testimony will incriminate you.
- Do not testify; you risk being in jail for contempt of court until you comply or decide to testify.
Can You Refuse to Testify in Court as a Witness?
Yes, you can refuse to testify in court as a witness, but not without consequences. You have limited testimonial privileges, the privilege to refuse to testify. For instance, the attorney-client privilege. In this regard, an attorney can refuse to testify on communications with his client. If that privilege not to testify is legitimate, you can refuse to give a statement, and the court will consider whether your privilege is applicable.
Suppose a witness is subpoenaed; it is a court order that directs the witness to testify in the court. If you refuse to testify, you violate a court order and the underlying loss authorizing the subpoena.
A witness who will not testify could be held in contempt by the court and subject to arrest, jail term, daily fines, etc., until they agree to testify.
You cannot refuse to testify as a witness in court merely because you do not want to testify; it comes with consequences. Before you refuse to give a statement as a witness, consider playing role reversal. You would pretend that you are the victim a witness is nearby. Now, the witness shows up, and you are glad they would give a statement to win you the case. But the witness refuses to provide a statement. You will likely lose your case because of the witness’ refusal.
Assume that you are a property crime victim. Suppose someone stole your motorcycle while you were sneaking up on a cat. A neighbor saw the suspect but refuses to give a statement in court.
You may be a victim of a crime against persons; someone walks up, smacks you on the face, and steals your bicycle. Another person sees what just happened and can identify the suspect but they refuse to give a statement as the witness in court.
In essence, if you have the opportunity to give a sincere witness statement, it would be honorable to play your role, even though you can refuse to testify.
What if You Have Compelling Reasons Not to Show Up in Court?
If you have a compelling reason or reasons not to show up in court, inform the court or attorney responsible for the subpoena. Otherwise, the court will issue a bench or arrest warrant.
Suppose you live far from the courthouse and the attorney that subpoenaed you does not offer to pay your travel or lodging expenses; the court may be sympathetic.
Usually, a witness retains an attorney to quash a subpoena on their behalf when there is just cause or compelling reason not to comply. Your attorney can invalidate the warrant by filing a motion to quash. Thus, getting rid of the chances that you would be arrested if the judge accepts the motion.
Why You Should Not Refuse to Testify
What you say in the witness box is important, though.
- Contempt of Court
When you refuse to testify, it may be regarded as contempt, which is an offense. It means being disrespectful to the law court and its officers.
- The Victim Loses
The victim feels cheated and may dwell on the issue for an extended period. Depending on the severity of the case, the victim might take laws into their hands after watching the offender walk out freely.
- The Suspect Wins
Your refusal to testify may result in the court dropping the case. The police officer has nothing to lose; the victims suffer the cause, so you are not punishing them by your act. Moreover, cops cannot present third-hand evidence of what they found out, the court case depends on the witness.
After the case dismissal, the trial is abandoned and, although police officers are a bit annoyed for the work they put into the case, they move on to their next job.
Do You Have Fears?
If you have fears, inform the judge. The judge will measure your worries, and if deemed reasonable, you may be permitted not to testify. However, if the judge does not find your fears reasonable, you may be required to testify upon threat of contempt.
Meanwhile, if you testify and it leads to criminal consequences, the evidence and your testimony become inadmissible in any trial for the crime.
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How to Get Out of Being a Witness in Court
Some would mention that you are avoiding your civil duty if you refuse to testify. Nonetheless, “I don’t want to” is not a good reason to get out of testifying as a witness in court. Do you feel you should no testify?
Below are the ways regarding how to get out of being a witness in court:
File a Motion to Quash Subpoena
Suppose you have been served with a subpoena properly per your state law; you can file a motion to quash the subpoena, explaining your reasons for staying away from your testimony. Your excuses must be reasonable, such as serious disability or other legal reasons.
In some jurisdictions, when a subpoena is not served properly, it becomes a mere invitation, which you can refuse to honor.
Assert Your Fifth Amendment Privilege
To get out of testifying as a witness in court, you can assert your 5th Amendment privilege. However, it’s mostly just against self-incrimination. There must be a good reason for you to believe that your testimony can incriminate you. Otherwise, the privilege is not effective.
If you assert your 5th Amendment privilege, you may have a hearing on it, and you might be questioned about the privilege. The seriousness mostly depends on the situation, though.
Suppose the subpoena is properly served, but you fail to appear in the court or show you to assert your privilege. If the judge still orders you to testify, you may be held in contempt of court if you refuse to testify. In most cases, you risk being fined or jailed.
Pretend You Have Difficulties Testifying
Yes, you can get out of testifying in court as a witness for pretending to have difficulties. However, you may be recalled when the court confirms that you are okay. Depending on the severity of your difficulties, the court may offer to assist you in testifying.
Say You Saw Nothing
You can claim you saw nothing, but this practice can make you face a perjury charge, especially if you are in the witness box. Moreover, your name was not just propped up as a witness from nowhere. But if you were not contacted beforehand, and you received a subpoena as a witness, you can claim you saw nothing, or only witnessed the insignificant part of the event.
Read also: Getting a cop in trouble is sadly easier than you think
When you refuse to testify or answer relevant questions, you’re at the mercy of the judge and the court’s discretionary authority to hold you for contempt. The consequence may be a fine or jail term, and you may remain in court custody until you accept to testify, which justifies Paul Levine’s saying, “We all hold the keys to our own jail cells.”
Sometimes, judges weigh the impact of a witness’s testimony before issuing an arrest or bench warrant. A judge may not order the arrest of a witness if they sense that the outcome of the testimony will not affect the case outcome.
Meanwhile, if a cop is a supposed witness, can another cop arrest him?