Criminal Defense

I’ve been subpoenaed for trial as a witness, but I won’t talk. What will happen?

By June 3, 2021No Comments

Hi, I’m Richard Waring and I’m a criminal defense attorney in Charleston, SC. Ok, so you’ve been served with a subpoena to show up for court and testify at a criminal defendant’s trial. But, you tell yourself, “I’m not getting involved in this. I don’t want any part of it. I’m not gonna testify.” And then you wonder, “but what’s going to happen to me?”

First off, this is a very delicate situation and one you should not approach lightly, and I would even encourage you to consult with a criminal lawyer who can go over your specific scenario. But, that document you’ve been served with, the subpoena, compels you to come to court and testify. So, if you blow it off and decide not to come to court at all, the judge can issue a warrant for your arrest, and you could end up sitting in jail with no bond until the trial is resolved and you’ve been forced to take the stand and testify.

Now, having said that, let’s say you do show up for court. You’re required to testify; however, if any of the questions that are asked of you by the prosecutor might implicate yourself in a crime or would otherwise subject yourself to self-incrimination, there are certain constitutional protections. Specifically, the 5th Amendment to the constitution, in part, says you can’t be compelled to be a witness against yourself in a criminal case. In interpreting the Fifth Amendment, the privilege against self-incrimination has been explained in practical terms as an assurance that an individual will not be compelled to produce evidence or information which may be used against him or her in a later criminal proceeding.

Again, here is where it would be important to consult a criminal lawyer beforehand, but in general, if answering a specific question or series of questions would incriminate you, then the US Constitution may protect you by pleading the 5th Amendment. Ultimately, the trial judge will determine whether or not the 5th Amendment applies to your specific set of circumstances and will probably want to go over this issue with you, the prosecutor, and defense attorney outside the presence of the jury.

Keep in mind, that if the judge determines that the 5th Amendment protections do not apply to your circumstances, and orders you to answer questions, if you refuse to answer questions at that point, you could get into some hot water very quickly. I’ve tried cases before where this very issue has come up and witnesses were ordered to answer questions but yet they refused. Ultimately, they ended up being held in contempt of court. And, that means you will most likely be taken into custody and held in jail for a period of time of up to 6 months, or given a fine. There is a possibility the jail sentence could even be longer under certain circumstances.

So, the next time you’re a witness in a criminal case and you get subpoenaed for trial, I would think really hard before you decide whether or not to (a) show up, and (b) answer questions. Alright, that’s it for now on what happens if you intend to not answer questions at trial when you’re a witness. And, if you’re in Charleston county, Dorchester county, or Berkeley county in South Carolina, feel free to give me a call anytime and we can go over your case. Having tried numerous jury trials in South Carolina and having handled thousands of criminal cases before, I’ll know what to look for on your case. Best of luck.

Richard Waring

Author Richard Waring

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