Refusal to Testify in Court: What Happens to the Witness?

What is a Subpoena?

According to Investopedia, essentially, a subpoena, which literally means ‘under penalty’, requires one to inform under oath (testify) on the facts that are at issue in a pending case. A subpoena is typically requested by an attorney on behalf of the court and issued by a court clerk, notary public or justice of the peace [1].

Subpoenas can be served through various methods, including personal delivery, email, certified mail, or even by reading it aloud. Also known as writs or administrative summons, subpoenas are legally binding, and ignoring them can result in contempt of court charges.

Both criminal and civil attorneys use subpoenas to gather crucial information to support their cases. If a witness, after being served with a subpoena, fails to appear in court on the designated date, the attorney can request the court to adjourn the proceedings to a later date, allowing additional time to contact the witness. Alternatively, the attorney may petition the court to issue a warrant for the witness’s arrest for non-compliance.

Types of Subpoenas

• Witness Subpoena: This court order requires an individual to appear in court on a specified date to provide testimony as a witness. Its purpose is to ensure that essential testimony is given under oath, facilitating the discovery of truth in legal proceedings.
• Subpoena Duces Tecum: This type of subpoena compels the individual to present documents or records at a designated time and location, usually as part of the pre-trial discovery process. The term “duces tecum” translates to “bring with you” in Latin.
• Deposition Subpoena: This court order directs a third-party individual, not involved in the lawsuit, to produce records and/or appear at a deposition to answer questions posed by one of the parties in the case.

What Happens if a Witness Doesn’t Appear in Court?

In criminal proceedings, witnesses are often required to appear in court to provide testimony. This requirement is enforced through a subpoena, a formal order compelling the witness’s court appearance. In criminal cases, subpoenas can be signed and issued by a magistrate or judge, a district attorney, a district attorney investigator, or a criminal defense attorney representing the defendant.

Under California law, a subpoena is only considered valid if the witness is personally served. Should a witness fail to appear in court after being properly served, they may face arrest for contempt of court.

When a witness does not comply with a subpoena, several consequences can ensue. The witness could be fined, incarcerated until they comply or the proceedings conclude, or charged with contempt of court, which can be either civil or criminal. Civil contempt is typically employed to compel a witness to testify, whereas criminal contempt is used to penalize a witness for failing to appear or refusing to testify.

Witnesses who are charged with either civil or criminal contempt are entitled to certain constitutional protections, such as the right to consult with a lawyer. Criminal contempt is a misdemeanor offense that is punishable by up to a year in jail and/or a $1,000 fine. A victim of domestic or sexual violence cannot be jailed for refusing to testify

Ways to Avoid a Subpoena

Ignoring or evading a subpoena to testify in court as a witness is strongly discouraged and can lead to significant legal consequences. Even if you appear in court but refuse to answer questions, you could be charged with contempt of court and face jail time. However, there are some legal strategies you can consider if you wish to avoid a subpoena.

1. Avoidance
If you reside within the court’s jurisdiction, someone will eventually serve you with the subpoena in person. If you are merely a potential witness, delaying acceptance might work temporarily. However, if you are a party to the case, failing to comply with discovery could result in court sanctions. Ultimately, it is more prudent to accept service and address the subpoena rather than attempt to avoid it.

2. Objection
When subpoenaed to provide documents or other materials, you can file a written objection to the subpoena. A proper objection requires the other party to obtain a court order compelling you to produce the requested items. This can provide a temporary reprieve and an opportunity to negotiate or contest the subpoena’s demands.

3. Undue Burden
Judges can issue orders to quash or modify subpoenas that impose an undue burden. This typically occurs if the subpoena does not allow a reasonable amount of time for compliance or requires travel of more than 100 miles from your residence, workplace, or regular place of business. If these conditions apply, you may request the court to quash or modify the subpoena.

4. Privileged Information
A judge may also dismiss or alter a subpoena if it demands the disclosure of privileged information, such as confidential data or trade secrets. If complying with the subpoena would compromise sensitive information, you can petition the court to protect this data.

Related Articles:

• Colorado Subpoena Laws
• How to Get Charges Dropped Before a Court Date?
• What Are the Valid Reasons to Get Out of a Subpoena?

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References:

1. https://www.investopedia.com/terms/s/subpoena.asp
2. https://www.amychapmanlaw.com/if-your-witness-doesnt-show-up-for-court-what-happens/