What is a subpoena? Can you refuse to testify if subpoenaed?
People who receive a subpoena for a criminal matter often wonder if they can ignore the subpoena or refuse to testify.
Neither is advisable.
Subpoenas are court orders that require a person to appear in court to testify and should be taken seriously. Failure to comply can lead to jail time and fines. Here’s an overview of subpoenas and some nationwide examples of what happened when a witness refused to testify or comply with a criminal subpoena.
What is a subpoena?
A subpoena is a court order telling an individual to appear in court in person and testify. A subpoena duces tecum is an order for a witness to bring something. This is true in both state and federal courts.
What is a subpoena duces tecum?
A subpoena duces tecum is an order for a witness to bring something to court – such as documents, a child, or evidence.
What happens if you disobey a subpoena and refuse to testify?
Since the subpoena is a court order, failing to comply can result in fines or time behind bars. In Texas, a judge has the discretion to fine a witness up to $500 in a felony case and $100 in a misdemeanor case for refusing to comply with a subpoena. Under Chapter 24 of the Texas Code of Criminal Procedure, the judge can also issue a warrant for the arrest of the witness and hold them in custody until the trial or proceeding has concluded.
Likewise, in federal court, a judge also has the authority to hold a witness in criminal contempt of court for disobeying a subpoena and hold them in custody until the end of the proceedings. Under Rule 42 of the Federal Rules of Criminal Procedure, the court can also bring formal contempt charges, which carry a punishment of up to six months confinement. Six months is the longest someone found in contempt can be jailed, unless he or she is convicted by a jury on the contempt matter.
Examples of the Consequences of Individuals Refusing to Testify
A look at some nationwide examples of people who have been jailed for refusing to testify:
- A federal judge judge held a Chicago man in contempt of court and sentenced him to 60 days in jail in 2016 for refusing to obey a subpoena and testify at the trial of six leaders of the violent Hobos street gang. The witness reportedly refused to testify out of concern for the welfare of his family.
- Barry Bond’s personal trainer, Greg Anderson, was held in contempt of court on multiple occasions for refusing to testify against the Giant’s slugger during grand jury proceedings and during Bond’s perjury trial. He spent more than a year in prison in 2006 and three weeks behind bars in 2011 for refusing to testify.
- In Pennsylvania, a key witness in a 2015 Thanksgiving day murder was arrested after she ignored a subpoena ordering her to come to court to testify in the alleged killer’s trial. The witness was living in Maryland and had reportedly refused to return to Pennsylvania.
- In Kansas, a jail inmate was found in contempt and sentenced to six months in jail for refusing to obey a subpoena and testify in a preliminary hearing in a murder case. The inmate, a key witness, refused to testify three times in one week in April 2017 and at one point told the court, “I want to be held in contempt.”
- In California, a woman was held in contempt of court in June 2011 for refusing to testify in a murder case involving a defendant and victim who were reported gang members. The woman told the judge she would “rather sit in jail” than testify, prompting officials to take her away in handcuffs.
- Susan McDougal, President Clinton’s Whitewater investment partner, served 18 months behind bars after she refused to answer prosecutors’ questions before a grand jury in 1996 about whether Clinton had knowledge of criminal wrongdoing in connection with the Whitewater resort development.
Are there any legal reasons under which I can refuse to testify?
Generally speaking, a court can force you to testify if you are under subpoena with the threat of jail. However, there are a handful of legal reasons that could excuse someone from testifying, including:
- The testimony is incriminating. The Fifth Amendment of the U.S. Constitution gives you the right to avoid self-incrimination.
- The testimony is privileged. Certain communications are considered privileged, including communications between a spouse, attorney, therapist or priest.
- The witness is incompetent.
- The subpoena was too broad, vague or not properly served.
Do I need an attorney if I received a criminal subpoena?
If you have been subpoenaed to testify in a criminal matter and believe you have a valid reason not to comply, such as self-incrimination, you should contact an experienced criminal defense attorney as soon as possible. A seasoned attorney can determine whether there are any grounds to quash the subpoena or if there are legal reasons that can be asserted to keep you off the witness stand.
If you need an attorney to help fight a criminal subpoena in north Texas, give us a call at 817-203-2220.
Also published on Medium.