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Know Your Rights as a Witness

36419191_sYou have many rights as a witness. As well as alot of responsibility. Here I outline them for you.

1. Right to be Left Alone

If you have been identified as a witness by the Prosecution or Defense, Section 1054.8 of the California Penal Code requires that Prosecution and Defense lawyers and their agents must disclose their identity to you when they are communicating with you. Whether or not you are identified as a witness, you are not required to talk to the Prosecutor, the Defense Attorney or any of their agents, such as the Police or private investigators.

One published court opinion which confirmed this right to be left alone is United States v. Black (9th Cir. 1985) 767 F.2d 1334, 1338.

You are free to voluntarily talk with members of the prosecution or defense team if you want to. You are only REQUIRED to answer questions when you are in court as a witness and testifying under oath.

2. Mandatory Attendance of Court Hearings

You must go to Court, or face the consequences for disobeying a Court Order, if you were legally served with a Subpoena to attend court or if you were previously in court and a judge ordered you to return on another day.

If you are not required to go to court, the choice is yours and you will not be punished if you choose not to attend.

You are legally served with a Subpoena to attend court if:

someone serving it personally gives you the subpoena (Cal. Pen. Code § 1328(a)) or

(1) you receive a subpoena by mail and (2) you reply to that person who issued the subpoena and verify receipt of the subpoena and verifying your identity by reference to your name and either your date of birth or DMV identification number. (Cal. Pen. Code, § 1328d.)

If you fail to appear for a Court Hearing when legally required, the Court may issue a Warrant for your Arrest. The Arrest Warrant may extend throughout the duration of the Trial. You could also be held in Contempt of Court. (Cal. Pen. Code, § 1331.)

You could also be charged with the Misdemeanor crime of disobeying a Court Order.

If you appeared in Court at a Hearing in response to a subpoena and you were not ordered by the Judge to return to court for another hearing on another day, you are not required to attend a future hearing unless you are legally served again for that hearing.

3. Requirement to Testify if Called as a Witness

If you are required to attend Court and called to the Witness Stand to testify, the Judge can order you to be sworn as a Witness and answer questions directed to you. If you disobey the order, you can be held in contempt of court. Cal. Pen. Code, § 166(a)(6).) If you are found to be in Contempt of Court, the Judge can fine you or impose jail as a punishment. However, Section 1219(b) of the California Code of Civil Procedure states that if you are considered the victim in a Domestic Violence or Sexual Assault case, the Judge cannot impose jail as a punishment for refusing to testify.

The State and Federal Constitutions guarantee the privilege against self-incrimination. This is part of the Fifth Amendment to the U.S. Constitution. This privilege provides that you do not have to answer a question directed to you if the answer tends to implicate you in a crime. Sometimes it is referred to as “taking the fifth.” You have the right to invoke the privilege and not testify even if it is very unlikely that you would be prosecuted.

It is a crime to knowingly make a false statement under oath. This is called Perjury, it is a Felony, and the punishment can be as much as imprisonment for up to 4 years. The privilege against self-incrimination does not permit you to perjure yourself. Rather, when applicable it permits you to refuse to testify so you do not have to make the unreasonable choice between perjuring yourself or incriminating yourself.
Many people are unaware that Section 148.5 of the California Penal Code provides that it is a crime to knowingly file a false report with the police. The punishment for violation of this law is up to 180 days in jail or a $1,000.00 fine or both. People v. Seijas (2005) 36 Cal. 4th 291 306-307, is a published court opinion that said that a witness has the right to assert the privilege against self-incrimination so the witness can avoid testifying to facts that tend to implicate the witness in the crime of knowingly filing a false police report.

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