Can I Be Forced to Testify as a Witness?

Originally published by Law Office of Brett A Podolsky.

If you have witnessed a crime, or if you have information the court deems important in a trial, you may have questions about when and if the court may force you to testify.

In this article, we review who, what, when, and in what circumstances individuals may be forced to testify, the associated laws, when you may be able to get out of testifying, and potential penalties for failing to testify.

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Can I Be Forced to Testify?

If a case goes to trial, attorneys may need to call certain witnesses to testify in court. Rule 701 of the Texas Rules of Evidence says that, in that event, the court will seek to receive any admissible testimony from lay witnesses (i.e., not expert witnesses) who will offer their rationally-based perception(s) regarding the determination of facts in the case.

Attorneys in a criminal trial have the right to call witnesses during a trial in order to offer information that’s pertinent to the case.

A live witness is someone considered qualified to offer testimony regarding details that are relevant to the issues of the trial. For instance, the party who calls the witness asks questions in direct examination.

When the attorney is finished with the examination, opposing counsel conducts cross examination.

If a witness doesn’t voluntarily agree to provide testimony, he or she may be subpoenaed. The witness is therefore “under penalty” if he or she doesn’t appear to testify in court.

Is There a Way to Get Out of Providing Testimony?

The subpoenaed witness has few reasons to excuse him or her from testifying. He or she may be excused from providing witness testimony:

• If he or she is incompetent to provide testimony, due to illness or age: His or her condition prevents his or her recall of events and from providing a truthful explanation to the court. (Note: This is a very challenging threshold. The court may allow even a very young witness to provide testimony, even if his or her testimony might not be considered “reliable.” In this scenario, the jury may consider the young person’s age to determine whether or not it should rely on the testimony offered.)
• If the witness is the attorney to one of the parties (or his or her psychotherapist or priest), he or she may be excused from testimony because of their legally privileged special relationship.
• If the witness’ testimony will include self-incriminating evidence, the Fifth Amendment of the U.S. Constitution provides him or her with the right to avoid giving this evidence to the court. He or she may, at any time, simply refuse to answer a question in direct examination or cross examination by claiming Fifth Amendment protection.
• The prospective witness is a defendant in a criminal case. (This scenario is an extension of the Fifth Amendment protections. A criminal defendant can’t be forced to provide testimony.)
• The prospective witness is the spouse of someone involved in the case. The communications between married persons is privileged so, in most instances, a spouse can’t be made to testify against his or her spouse. However, a former or separated spouse may be considered competent as a defense for the prosecution.

If a prospective witness doesn’t fall into any of the above categories, he or she will probably have to provide testimony. However, the witness may benefit from consulting with an experienced criminal defense lawyer to ensure his or her interests and rights are protected in the proceeding.

For instance, a witness might be afraid to testify in a proceeding because he or she fears retaliation. In such a scenario, the court may take additional precautions with such a witness, e.g. preventing reporters from entering the court room.

If the above excuses don’t apply to the subpoenaed witness, he or she may request a postponement of appearance in the court. Unfortunately, postponements are granted on a limited basis, usually due to severe illness or death.

If the court doesn’t grant a postponement, the witness is required to appear at the date and time provided on the subpoena.

If the court grants a postponement, he or she is obliged to appear in court at the date and time indicated.

Are There Penalties for Failing to Testify?

The short answer is yes.

If the witness was properly subpoenaed but he or she failed to comply with it, the court may—at its discretion—find him or her in contempt of court.

In that case, he or she may face a potential jail sentence and/or significant fines (Section 21.002 of the Texas Government Code).

What’s a Competent Witness?

Generally speaking, a competent person may be forced or compelled to provide evidence in a Texas criminal or civil case.

You’re deemed a competent witness if the court believes you’re capable of providing allowable (admissible) evidence to the court.

If you’re the accused in a criminal case, we discussed that you’re not required to provide evidence in your own defense. If you choose against testifying, this fact can’t be commented upon by the prosecutor in his or her comments to the jury.

If you do offer evidence in your own trial, the prosecution may cross-examine you.

You aren’t allowed to refuse to answer the prosecutor’s questions on the grounds that your response might incriminate you.

The prosecutor can’t ask any questions about your prior poor character unless:

• Your attorney or you previously provided evidence of your good character
• Your attorney directed questions concerning the character of its witnesses
• You provided evidence in your own defense against another accused (co-accused party)

You can’t be compelled to provide evidence to the prosecutor in its efforts to convict you. Similarly, you can’t be compelled to offer evidence against another co-accused (when you’re being tried in the same proceeding).

What Happens If I Refuse to Testify? Will the Charges Get Dropped?

Prosecutors are often asked if charges will be dropped if a certain witness refuses to testify against him or her.

The answer depends on the particular case circumstances. A prosecutor may elect to move forward even if the witness refuses to testify, such as:

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1. Testimony is on the record. If a witness doesn’t appear at the trial date, the prosecutor might not need his or her live testimony because it’s already on the record. For example, the witness in question might have been previously examined and cross-examined in a preliminary hearing. However, for the prosecutor to have the benefit of the witness’ prior testimony, he or she must be considered legally unavailable. In other words, he or she must be considered mentally or physically disabled, outside of the jurisdiction’s limits, or have involved a privilege that prevents the prosecution from compelling him or her to testify. In addition, the prosecution must show that it made good faith efforts to secure the witness’ testimony. If the accused is deemed the cause of the witness’ unavailability, the court may agree to admit his or her statements.
2. Victim emergency recording. The prosecution might not need a witness’ live testimony if he or she called “911” and the recording is available to present to the court. An emergency call can elucidate the events or incidents that resulted in criminal charges, e.g. the defendant’s declaration of hitting, threatening, or causing other harms to the victim. Although an emergency call isn’t sworn testimony, it provides an explanation of facts in the case. Although out-of-court statements offered to explain the truth may be considered hearsay, several notable exceptions exist. An excited utterance is considered one of these exceptions.
3. Another witness is available. A prosecutor may elect to move forward even if a victim fails to testify if another witness will offer testimony about what happened. A colleague, neighbor, friend, or another party who witnessed the event may testify.
4. Other evidence is available to prove the facts. When an eyewitness isn’t available, the prosecution may offer other evidence to establish the alleged facts. For instance:

• An assault victim went to the emergency room and the ER doctor took pictures of the abuse.
• A passerby made a video recording of the assault with his or her mobile.
• The determination of what is hearsay involves finding a witness to substantiate images or videos.

5. Protection orders. Many victims don’t want to testify because they fear the defendant. The prospective witness may have previously obtained a protection order against the accused to prevent any contact with him or her.
6. Legal assistance. People involved in a criminal assault case shouldn’t assume that the case will be thrown out because a victim declines to testify against the accused. It’s wise for the prospective defendant to contact an experienced criminal defense lawyer as soon as possible to protect his or her legal rights.

Concerned about Testifying as a Witness?

If you have concerns about being forced to testify as a witness, or if you have concerns about testifying in your own defense, contact an experienced criminal defense lawyer.

Contact the Law Office of Brett A. Podolsky in Houston at 713-227-0087 to schedule an initial case consultation now.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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