May the Court Force Me to Testify?

When you get an order to testify in court, you might wonder about the extent of the court's power over you. The court system has the authority to order a person's appearance through a legal document known as a subpoena. The subpoena compels a person to follow an order: testify in a civil or criminal proceeding or produce legal documents.

This article examines the circumstances when the court can force you to testify, the legal consequences of failing to follow a court order, and certain conditions that could exempt you from testifying. Understanding these aspects is essential for those involved in a civil or criminal trial or are anticipating legal proceedings.

What Is a Subpoena?

A subpoena is an order from the court — typically a state court or federal court — requesting that someone produce documents or appear in a legal proceeding. The subpoena can either request that you testify or appear in court. It can also be a subpoena duces tecum, where the court orders you to produce documents or other physical evidence that could help support issues in a pending case.

Can a Person Be Forced to Testify?

Generally, a court can force you to testify after sending you a subpoena that informs you what testimony they need.

There are only a few reasons the court might excuse you from testifying:

• Self-incriminating evidence. The testimony includes self-incriminating evidence. The Constitution allows you to avoid giving self-incriminating evidence under the Fifth Amendment. A witness can, at any time, refuse to answer a question by claiming protection under the Fifth Amendment.
• A defendant in a criminal case. Under the Fifth Amendment of the U.S. Constitution, criminal defendants can refuse to testify in their criminal trial. The court can't compel defendants to incriminate themselves, which forms the basis of this principle.
• Spousal privilege. The witness is married to someone involved in the case. Courts consider communication between two spouses privileged. In most cases, the court can't force you to testify against your spouse.
• Attorneys, psychotherapists, and priests. The witness is one party's attorney, psychotherapist, or priest. These professions need clients to tell them everything without fear of the consequences. The court gives these relationships special protection, and in most cases, communication between the two is privileged.
• Incompetent to testify. The witness is not competent to testify. Some witnesses cannot testify because their age or illness affects their ability to recall events and truthfully explain them to a jury. But this is a very difficult threshold to meet. For example, many courts will allow a young child to testify even though children may not be the most reliable witnesses. The jury is then free to consider the witness's age when deciding whether to rely on their testimony.

You may have to testify in court if you do not fall into these categories. It might help witnesses consult with an attorney to protect their rights and interests during a proceeding.

What Is It Called When You Refuse to Testify in Court?

If you or a witness refuse to testify in court after getting summoned by a subpoena, the court may hold you in contempt. This legal offense can result in a court-imposed fine or imprisonment in the worst cases.

Two Types of Contempt of Court

There are two types of contempt of court: civil and criminal.

Civil contempt of court often happens when someone fails to obey a court order. This failure usually results in injury to the other person's rights. Civil contempt aims to restore the rights of the wronged party.

An example of civil contempt of court is in family law proceedings when the person fails or refuses to provide court-ordered child support or alimony. Or in civil cases when there is a failure to follow the agreement in a marital settlement after a divorce decree.

Criminal contempt happens when someone disrupts court proceedings or disrespects the court's authority. It often results in punitive sanctions to prevent future acts of contempt. Some examples of criminal contempt are yelling at the judge or acting in a manner that causes severe disruption in the courtroom.

Special Considerations for Victims of Certain Crimes

Some state laws provide certain protections to witnesses who were victims of sexual assault or domestic violence. These laws prevent penalizing those who refuse to testify face-to-face against their assailants. The rules may vary in every state. But the general principle underlying these protections is to prevent the crime victims from undergoing trauma again during the legal proceedings. For instance, under California Evidence Code Section 1219, the courts cannot imprison or detain victims of sexual assault or domestic violence if they refuse to testify about the crime. Before charging the crime victim with contempt, the court should first refer them to a domestic violence counselor.

What Does a Person Plead When They Don't Want to Testify in Court?

If you receive a subpoena and do not want to testify in court, you can plead the Fifth Amendment to the U.S. Constitution. The Fifth Amendment gives you the right against self-incrimination. This allows you to refuse to answer questions or provide testimony that could incriminate you.

When the court calls you to testify in a court hearing, you can state that you are "pleading the Fifth" or "taking the Fifth." This legal right under the U.S. Constitution ensures that the court will not compel you to give testimony that could be incriminating.

Note that the Fifth Amendment only applies to testimonial evidence. It does not apply to physical evidence, such as blood samples or fingerprints. A person can't use the Fifth when avoiding testifying about others, except when their statement could implicate them, too.

What Are the Witnesses' Rights in a Criminal Trial?

The witness has the following significant rights in a criminal proceeding:

The right to avoid self-incrimination. As mentioned above, a witness can plead their Fifth Amendment right against self-incrimination.

The right not to be harassed. Although the U.S. Constitution does not explicitly grant a witness the right not to be harassed, the U.S. state laws contain provisions addressing harassment against a witness. The Rape Shield Law was enacted to prevent character assassination and harassment against victims of sex crimes. So, during cross-examination, a trial judge should look at the essential policies under the rape shield law. For instance, the court should not admit evidence of the crime victim's sexual conduct in a legal proceeding or investigation before a grand jury.

The right to legal representation. The Sixth Amendment of the U.S. Constitution guarantees the right to competent legal representation. Although this right is explicitly for defendants, witnesses can use this Constitutional guarantee in a criminal proceeding. For instance, if testifying could incriminate a witness, they have the right to representation by an attorney. This is crucial when responding to subpoenas or during depositions that could expose them to criminal liability.

Seek Legal Advice from an Attorney

Legal proceedings can be daunting, especially if you get a subpoena and the court calls you for a court appearance to testify or produce documents. Whether you got subpoenaed or want to invoke your Fifth Amendment rights, seeking help from a criminal defense attorney is crucial. An experienced defense lawyer can give you legal advice tailored to your situation. They can help you understand your rights and represent your interests in a court case. You do not have to go through the legal proceedings alone. Contact an attorney's office near you.