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What Happens If a Witness Doesn’t Show Up in Court?

subpoena document with pen

Refusing to Testify in a Criminal Case

Prosecutors in a criminal case will gather as much evidence as possible to convict a person of a crime. Among the most significant pieces of evidence that they rely upon is testimony from witnesses and victims, and without it, they may have no case. Keep in mind that victims are considered witnesses to a crime but not all witnesses are victims. With so much at stake, prosecutors will do everything they can to ensure victims and witnesses appear in court and accurately describe their experiences.

One common way prosecutors get witnesses to appear in court is by issuing a subpoena, a court order requiring a person to testify as a witness or produce documents that can be used as evidence of a crime. There are two types of subpoenas: Subpoena ad testificandum and subpoena duces tecum. In this case, we will focus on subpoena ad testificandum, a type of subpoena that requires a person to go to court and testify as a witness.

Can You Refuse to Testify if Subpoenaed?

In California, if you received a subpoena to testify as a witness in court or a subpoena ad testificandum, you are required by law to appear and testify. If you don’t show up in court or refuse to testify after getting subpoenaed, you will be held in contempt of court. This is a crime.

What Can Happen if You Are in Contempt of Court?

It can be difficult and highly-sensitive for witnesses to testify in court, especially if it’s against their friends or family members. The idea of putting a loved one behind bars by testifying in court often motivates witnesses to avoid going to court and refuse to testify despite being subpoenaed.

However, refusing to go to court and testify means you are in contempt of court, a misdemeanor crime that is punishable by a $1,000 fine and/or up to 1 year in jail. Before charging you for contempt of court, the court may issue a body attachment which is like a warrant for your arrest. Once law enforcement agencies know your whereabouts, they may arrest you and hold you in custody until you testify or the case concludes.

Valid Reasons to Get Out of a Subpoena

If you are adamant about getting out of your subpoena for whatever reason, there are certain situations in which you may potentially be able to refuse a subpoena to testify.

You should call the prosecutor or defense lawyer who issued the subpoena and discuss alternatives to showing up in court and testifying. Explain your situation to them and be honest about why you can’t physically appear in court. Examples of reasons a person may fail to appear in court include:

  • Self-incrimination
  • Privilege (ex: Violating a doctor-patient privilege by releasing their medical records)
  • Family or medical emergency
  • Didn’t receive a subpoena

Remember, even if these reasons apply to you, do not ignore your subpoena, or else you may be held in contempt of court. If you are facing contempt of court charges in Santa Rosa, learn about how to best resolve your matter by contacting us at (707) 418-5352!