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What Happens if a Victim or Witness Refuses to Testify?

Posted by Neil Shouse | Sep 13, 2019 | 0 Comments

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If a witness in a criminal case refuses to testify, he or she could be found in contempt of court (Penal Code 166 PC). Being found in contempt of court can result in jail time and/or a fine. A victim in a domestic violence or sexual assault case, however, cannot be jailed for refusing to testify. But the victim/witness could still be held in contempt and fined per CCP1219.

The two most common situations where a witness is found in contempt are:

  • failing to appear in court after receiving a subpoena,
  • refusing to testify in court.

The court uses its contempt power to ensure obedience to its orders. It also helps the court run in an orderly fashion. Otherwise, people would not take testifying seriously.

Refusing to testify is considered direct contempt because it is committed in the presence of the judge. A judge can immediately punish someone who refuses to testify (See CCP1218). A witness who is found in direct contempt can receive:

  • 5 days jail,
  • a $1,000 fine.

Further, a witness who refuses to testify can be jailed until the court proceeding or trial is complete. Please note that a victim of domestic violence or sexual assault cannot be jailed for refusing to testify. [See Code of Civil Procedure 1219(b)].

It is even possible for criminal charges to be filed against a witness who refuses to testify under Penal Code 166(a)(6). If found guilty, the punishment for refusing to testify under Penal Code 166 is up to:

  • six months jail,
  • a $1,000 fine.

There are defenses to refusing to testify but they should be presented to the court at the time of refusing. They include:

  • the right against self-incrimination,
  • privilege (marital, clergy, news reporter),
  • questions are not material.

Is it a Crime for a Victim or Witness to Refuse to Testify?

It could be. A witness who fails to appear in court on a subpoena is subject to arrest. A witness who refuses to testify after appearing in court could be:

  • fined,
  • jailed (until he or she complies or the proceedings end),
  • charged with a violation of a court order under Penal Code 166.

Contempt may be civil or criminal in nature. It depends on whether the court's purpose is:

  • to pressure or coerce (civil),
  • to punish (criminal).

A refusal to testify is considered civil contempt. But even civil contempt is considered quasi-criminal in nature. That means that a person is entitled to certain constitutional procedures. For example, the witness is entitled to consult with a lawyer.

A refusal to testify can also be treated as criminal contempt under Penal Code 166. Criminal contempt is a misdemeanor. Under Penal Code 166(a)(6), it is contempt of court to:

  • unlawfully refuse to be sworn as a witness or,
  • refuse to answer a material question.

To be a valid order for criminal contempt, the written contempt order must specify:

  • the underlying facts for refusing to testify,
  • the court's ruling on the refusal to testify claim,
  • the witness was represented by an attorney.

Conviction under Penal Code 166 is a misdemeanor punishable by up to six months in jail and a $1,000 fine. See https://www.shouselaw.com/contempt-court-laws.html

What is a Subpoena?

A subpoena is an order for a witness to appear in court. In a criminal case, per Penal Code 1326, a subpoena can be signed and issued by a:

  • magistrate or judge,
  • district attorney,
  • district attorney investigator,
  • attorney for the defendant.

A witness must be personally served with a copy of the subpoena. If the subpoena was personally served and the witness fails to go to court, he or she is subject to arrest.

It is possible, however, to deliver a subpoena by mail or messenger. But in that case the witness must acknowledge receipt of the subpoena. That usually means that the witness signs for the subpoena. (See Penal Code 1328d).

Please note that a subpoena can also be issued to order the production of certain books, papers, documents, and records.

Is it a Crime to Try and Persuade a Witness Not to Testify?

It is a crime to try and prevent a witness from testifying. It doesn't matter if it is your case or someone else's. Under Penal Code 136.1, it is a crime to knowingly prevent or dissuade a witness from:

  • reporting a crime,
  • aiding in the arrest process,
  • aiding in the prosecution process, OR
  • attending or testifying at any judicial proceeding.

The crime of dissuading a witness can be charged as either a misdemeanor or a felony. (See https://www.shouselaw.com/dissuading.html)

Will the DA Dismiss a Case if the Witness Won't Testify?

It depends. Sometimes the only evidence the district attorney has is the testimony of the victim. Other times there is additional evidence that allows the case to go forward. For example, if:

  • the defendant admitted guilt or other important evidence,
  • there are other witnesses,
  • the refusing witness previously testified.

Are there Defenses if a Witness Refuses to Testify?

Yes, there are legal reasons to refuse to testify. The reasons should be presented to the court at the time of refusing. They might include:

  • the right against self-incrimination,
  • privilege (marital, clergy, news reporter),
  • questions are not material.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.

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