Can a Witness Be Forced to Testify in Court?

On behalf of Patrick McLain Law | September 12, 2024

In Florida, in a criminal case, a personal injury case, or other types of cases, sometimes you may be asked to testify as a witness. In this situation, several pertinent questions may arise in your mind:

Can I say no to being a witness?
What are my rights as a witness in court?
Can I refuse to testify in court?

To protect your rights, it is prudent to consult with a knowledgeable criminal defense lawyer in Florida before you take any step.

Legal Authority to Subpoena and Compel Testimony

In Florida, the ability to compel a witness to testify in court is governed by Section 527.16 of the 2024 Florida Statutes:

Subpoena Power

Investigation departments and their appointed examiners in Florida can issue subpoenas to compel witnesses to attend and testify. This includes:

Administering Oaths: Witnesses are sworn in before providing testimony.
Examining and Cross-Examining Witnesses: Departments can question witnesses and challenge their testimony, similar to court procedures.
Receiving Evidence: Both oral testimony and documentary evidence are admissible.

These powers ensure that investigative agencies can gather all necessary information to conduct thorough inquiries.

Enforcement of Subpoenas

When there is a witness refusal court to comply with a subpoena or provide testimony, the circuit court in the county where the investigation is taking place or where the witness resides can issue an order to enforce compliance. The process includes:

Application for Enforcement: The department must apply to the court for an order requiring compliance.
Contempt of Court: If the witness fails to obey the court order, the court may hold them in contempt. This contempt can result in legal penalties such as fines or imprisonment.

This enforcement mechanism ensures that subpoenas are taken seriously and that witnesses adhere to legal requirements.

Service of Subpoenas

The process for serving subpoenas under this statute is consistent with the procedures used for circuit court subpoenas. This includes:

Proper Service Procedures: Subpoenas must be served according to established legal standards to ensure they are valid.
Witness Fees and Mileage: Witnesses are entitled to receive fees and reimbursement for mileage.

Penalties for False Testimony

Providing false testimony is a serious offense under Florida law:

Perjury: If a witness intentionally provides false testimony under oath, they can be charged with perjury. Perjury is a criminal offense involving making false statements under oath, and it is punishable by imprisonment and/or fines.
Legal Consequences: The penalties for perjury are severe because it undermines the judicial process and can result in wrongful outcomes in legal proceedings.

Protection Against Self-Incrimination

One of the critical protections under this statute is the safeguard against self-incrimination:

Compelled Testimony: If a witness is compelled to testify or produce evidence that might incriminate them or expose them to penalties, they must comply with the request.
Immunity from Prosecution: The statute ensures that any testimony or evidence given under such circumstances cannot be used against the witness in criminal proceedings.
Non-Use in Criminal Proceedings: The immunity extends to ensuring that the testimony or evidence provided cannot be used to initiate or support criminal actions against the witness.

Penalties for Non-Compliance

Failure to comply with a subpoena without lawful cause is considered a misdemeanor of the second degree in Florida:

Legal Classification: This legal offense is classified under Section 775.083 of the Florida Statutes, which outlines penalties for misdemeanors.
Punishment: As a second-degree misdemeanor, non-compliance (when the witness refuses to testify) can result in penalties including fines and/or imprisonment.

Legal Refusal to Testify: Potential Exceptions to Being Forced to Testify in Court

In most cases, if a court sends you a subpoena, you are required to testify or it may invite criminal contempt or civil contempt. The penalties may include a court imposed fine and even jail time. However, there are some situations where you might have valid legal grounds and may be excused from testifying.

Self-Incrimination

You can refuse to answer questions at a criminal trial that might make you look guilty of a crime. The Fifth Amendment of the U.S. Constitution protects you from having to give evidence that could incriminate yourself. This means you can say to the district attorney, “I plead the Fifth,” to avoid answering questions that might lead to self-incrimination.

Criminal Defendants

If you are on trial for a crime, you do not have to testify against yourself. The Fifth Amendment also protects people on trial from being forced to testify in a way that could prove their guilt. The court and the legal system cannot make you testify if it would make you incriminate yourself.

Spousal Privilege

If you are married to someone involved in the case, you generally cannot be forced by the district attorney’s office to testify against your spouse. Communications between married couples are usually considered private and protected.

Professional Privilege

Certain professionals may not be forced by a district attorney investigator to disclose information shared with their clients, no matter whether the case involves sexual assault, domestic violence, or other crimes. This may apply to attorneys, psychotherapists, and priests. These relationships are protected to ensure that clients can speak freely.

Incompetence to Testify

If a witness is unable to provide reliable testimony due to age or illness, they might not be required to testify. A witness must be able to recall and clearly explain events. For example, very young children or those with serious cognitive impairments might not be deemed competent.

Our Florida Criminal Defense Attorneys Can Subpoena a Witness in Your Defense

At Patrick McLain Law, our skilled Florida criminal defense attorneys will proactively and aggressively use every possible strategy to defend you, including witness testimony that supports your defense. We can formally request a subpoena to compel witnesses to appear in court and testify. By using subpoenas, we can ensure that key witnesses, who might have critical information or evidence, are legally required to participate in your defense.

How Our Florida Criminal Defense Lawyers May Defend Your Refusal to Testify

At Patrick McLain Law, if you are exercising your right to refuse to testify, we will present various types of evidence and arguments to support your position and ensure your legal rights are protected.

Evidence of Self-Incrimination Risk

We will demonstrate how the testimony you are being asked to provide could potentially incriminate you. This includes showing that answering specific questions might reveal information that could lead to criminal charges or self-incrimination.

Documentation of Legal Protections

We will provide evidence and legal arguments highlighting how your refusal to testify falls under the protection of the Fifth Amendment. This amendment allows you to avoid self-incrimination, and we will emphasize how your situation meets this criterion.

Proof of Incompetence to Testify

Medical Records: If your refusal to testify is based on claims of incompetence due to age, physical illness or mental incapacity, we will provide medical records or expert testimony that supports your claim.
Expert Testimony: We might use testimony from medical professionals or psychologists to explain how your condition impacts your ability to recall or accurately present information.

Can I Refuse to Be a Witness in Court? Consult Our Experienced Criminal Defense Attorney in Fort Myers

Patrick McLain Law is an award-winning law firm providing strong criminal defense to clients in Florida. Led by the seasoned criminal defense attorney Patrick McLain, who has a proven record of winning trials, we are strongly positioned to defend your rights and freedom. To schedule a free consultation, call us at (239) 579-9445 or contact us online.