If a victim or witness refuses to testify, the judge can hold them in contempt of court. This is a misdemeanor offense that carries fines and up to 6 months in jail in California. The judge can also fine them or detain them until they comply. However, victims of domestic violence or sexual crimes cannot be jailed for refusing to testify.
Contempt of court
The crime of contempt of court is very broadly defined. Basically, it is the crime of willfully violating a court order. The California law prohibiting contempt of court includes the following behaviors:
- disorderly, contemptuous, or insolent behavior in front of the judge that interrupts court proceedings,
- interrupting court proceedings through a breach of the peace, a noise, or some other disturbance,
- willful disobedience of a lawful court order,
- unlawfully refusing to be sworn in as a witness or to answer a material question, and
- publishing false reports of a court proceeding.[1]
This includes a court order for a crime victim or witness to testify.
Penalties of a conviction
Contempt of court for refusing to testify is a misdemeanor. In California, a conviction carries up to:
- $1,000 in fines, and/or
- 6 months of jail time in county jail.[2]
The judge also has the discretion to hold you in confinement until you comply with the court order or subpoena to testify. According to California law:
“…if the contempt consists of the omission to perform an act which is yet in the power of the person to perform, he or she may be imprisoned until he or she has performed it…”[3]
You can also be ordered to pay the other party’s attorneys’ fees and court costs associated with the contempt proceeding.[4]
The criminal defense attorneys at our law firm have found that refusing to testify can also lead to other issues in court. These include:
- angering the judge,
- losing credibility and the jury’s trust, and
- harsher questioning from the adverse lawyer.
Legal defenses
Our criminal defense lawyers have used several legal defense strategies for charges of contempt of court against people who refuse to testify. They include:
- the violation was not willful,
- the questions you are refusing to answer are not material,
- you are refusing to testify because the response is protected by a legal privilege, and
- you are invoking your right against self-incrimination.
Not a willful violation
You can only be liable for contempt of court if your refusal to testify is willful. It is a very strong defense if you can show that your decision was not willful or was accidental.
For example: Claire did not willfully refuse to testify at trial. To prove this, she produces the subpoena, which has the wrong date on it.
Immaterial questions
If the questions are not relevant to the case, then refusing to testify about them is not contempt of court. Proving that they are not material or relevant, though, can be difficult. The district attorney or the lawyer for the other party may be asking questions to get testimony that does not appear relevant, yet, but will become relevant as the questioning continues.
Privileged response
If your testimony would disclose privileged information, then refusing to testify is not contempt of court. Some examples of privileged information are:
- spousal communications,
- attorney-client privilege, and
- doctor-patient confidentiality.
Right against self-incrimination
The Fifth Amendment to the United States Constitution gives you the right to be free from compelled self-incrimination. Also known as “pleading the Fifth,” victims or witnesses can refuse to testify, without being held in contempt of court, if their response would incriminate them for a crime.
The criminal defense attorneys at our law office often remind clients that pleading the Fifth comes with risks. You are silently admitting to having committed a crime related to the question that you are refusing to answer.
Exception for victims of domestic violence or sex crimes
In California, there is an exception for victims of domestic violence or sexual assault. Victims of these offenses cannot be put in jail for refusing to testify about that particular crime.[5]
These victims can, however, still be fined for contempt of court for not testifying or refusing to answer questions.
Judges can refer these victims to a domestic violence counselor before holding them in contempt. What you say to this counselor is confidential and privileged.[6]
Cases may get dismissed without the victim’s testimony
Some criminal cases, especially domestic violence cases, rely heavily on the testimony of the victim or a particular witness. If that witness or the alleged victim refuses to testify, it can undermine the case so much that the district attorney decides to drop the domestic violence charges.
However, most criminal charges have more evidence than a single person’s testimony. The other evidence can be things like:
- physical evidence of the crime,
- the responding police officer’s testimony,
- a recording of a phone call, and
- other witness testimony.
If law enforcement and the district attorney’s office thinks that there is still enough evidence to prove the prosecution’s case beyond a reasonable doubt at a criminal trial, they will move forward with the legal process.
Witness tampering is a crime
Trying to convince a witness or the victim of a crime to refuse to testify is, itself, the crime of witness tampering. Known as intimidating a witness in California, you can be convicted if the prosecutor shows that:
- the other person was a witness to a crime or the victim of it,
- you knew that the other person was going to testify, file a report, or provide information about it, and
- you maliciously tried to prevent them from doing so.[7]
In California, intimidating a witness is a wobbler. If prosecuted as misdemeanor, it carries up to 1 year in jail. If charged as a felony, a conviction carries up to 4 years in state prison.
Additionally, it is not uncommon for tampering with a witness to also:
- amount to a probation violation, and/or
- violate a restraining order or a protective order.
Legal Citations:
[1] California Penal Code 166(a) PC.
[2] California Penal Code 19 PC.
[3] California Code of Civil Procedure 1219(a) CCP.
[4] California Code of Civil Procedure 1218(a) CCP.
[5] California Code of Civil Procedure 1219(b) CCP.
[6] Same.
[7] California Criminal Jury Instructions (CALCRIM) No. 2622.
