Although the Fifth Amendment protects criminal defendants from being forced to testify against themselves, most witnesses can be forced to testify by a valid subpoena from a court of law.
Can a Witness Be Forced to Testify in Court?
A witness may be compelled to testify in court if a judge issues a subpoena. The recipient of the subpoena cannot refuse this call for testimony, or they may be held in contempt of court and arrested. However, there are several exceptions to this rule.
If at any point you receive official communication from a court, attorney, or law enforcement officer, you should consult with your lawyer.
Does the Fifth Amendment Apply to Witnesses?
The first exception to the rule that witnesses must comply with a legal order to testify comes from the Fifth Amendment to the United States Constitution, which states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [Emphasis added].
Criminal defendants cannot be forced to testify. The person on trial cannot be forced onto the stand. They may testify if they choose, but the court cannot compel testimony from the defendant.
However, the Fifth Amendment does not give everyone the right to refuse to testify. The only time a person may invoke the Fifth Amendment to reject compelled testimony is when such testimony could incriminate themselves. For instance, if you have been called to testify against your friend who is accused of robbing a bank, and you robbed the bank with him, you could refuse to testify under the Fifth Amendment because your testimony would necessarily implicate you in the bank robbery.
The Fifth Amendment is complicated. Sometimes a witness may believe that their testimony should be protected when it is not. If you are thinking about invoking your Fifth Amendment right to remain silent, whether as a defendant or a witness, you should always consult with your lawyer before doing so.
Does a Witness Have to Testify Against Their Spouse?
A witness does not have to testify against their spouse. When spouses talk to each other, that communication is considered “privileged,” which means the court cannot compel testimony about it.
Does a Lawyer Have to Testify Against Their Client?
A lawyer does not have to testify against their client due to attorney-client privilege. As with spousal communication, the court cannot compel testimony regarding communication between a lawyer and their client. The same goes for psychiatrists and priests.
This “privilege” is designed so that people can talk to their lawyer, therapist, or priest without fear of consequences. This safety is essential for such jobs. There are certain exceptions, but in general, all communication between lawyers and their clients is privileged from compelled testimony.
What is an Incompetent Witness?
The last exception regards witnesses who are not competent to testify. Very young children and those with mental illnesses and cognitive issues cannot be compelled to testify. However, oftentimes the defense must prove to the court that the witness is actually incompetent, and in many cases they do not succeed.
Do I Have to Testify in Court?
In the United States, witnesses do not naturally have the right to refuse to testify. If you have been subpoenaed, you will likely have to be a witness. If any of the above exceptions apply to you, there is a chance you can successfully refuse to testify. Regardless, you should consult with a lawyer.
The Fifth Amendment can be powerful. The US justice system is designed in favor of the accused, and the protections against self-incrimination are no different. Even so, such protections are balanced out with the court’s interest in fact-finding and pursuing justice. If everyone could refuse to testify, many criminals would not be successfully prosecuted.
That being said, it is important to know your rights. Courts can be complex and scary. That is why we have due process. The Fifth Amendment is part of a broader tapestry of civil rights that make our justice system the best in the world.