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Rights of a Witness in a Criminal Case

By Molly Zilli, Esq. | Last updated on

You hear a lot about defendant rights -- right to an attorney, right to remain silent, right to a speedy trial, etc. And those are very important. But what about victim and witness rights in a criminal case? Do you have any? How do you protect them? These are important questions as you navigate the unfamiliar waters of a criminal trial.

Do I Have to Testify?

When it comes to testifying, witnesses do have certain rights and obligations. If you received a subpoena, you do have to show up or provide the information requested. However, you can refuse to answer questions which could incriminate you. That's your right under the fifth amendment (hence the phrase, "pleading the fifth"). You can also refuse to testify about communications between you and your spouse.

If you do testify, you have to tell the truth. Anytime you're answering questions in a deposition, in front of a grand jury, or on the witness stand at trial, you're under oath, so failing to tell the truth could be considered perjury.

Victim Witnesses

Witnesses who are also victims of crime have additional rights. For example, victims generally have the right to be notified of the status of the investigation, relevant court proceedings, and the release or detention status of the suspected offender. The victim witness also has the general right to be present at all public court proceedings related to the crime. Conversely, witnesses who are not victims are generally not allowed to be present for other parts of the trial so that they aren't influenced by other witnesses or evidence presented.

Talking to Attorneys

As a witness in a criminal case, it's a good idea to have your own attorney. Attorneys can advise you what could be considered incriminating testimony, and other types of questions you don't have to answer. You can also refuse to talk to other attorneys outside of a deposition or trial, even if they formally request an interview.

If you've been subpoenaed, or you've simply agreed to testify at a deposition or at trial, other attorneys must follow the rules of the court and rules of evidence while questioning you. For example, one of the objections an attorney may raise is some form of "badgering the witness," which reminds attorneys not to treat a witness in an antagonizing or mocking way.

It can be tough to know what your rights and obligations are in specific circumstances. And you might not be sure what kinds of things could incriminate you in a criminal matter. In either case, an attorney can help protect your rights and advise you on what you should and should not say.

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