What If A Witness Cannot (Or Will Not) Testify?

Witnesses are the cornerstone of many cases. The right ones will help you win over a jury to your side of the story, while the wrong ones can sink the case. But what if a witness decides they cannot or will not testify? Can they simply choose not to? And if so, what recourse do you have? Here are the answers to your questions. 

Why Might a Witness Not Testify?

Contrary to dramatic television and movies, many witnesses appear in court of their own free will. Your friends and family often want to help, and even bystanders are willing to tell the court what they saw. 

However, this also means that many witnesses have the choice to not participate. The reasons for this vary, including nervousness about the courtroom setting, fear of being cross-examined, inability to travel, scheduling conflicts, and even fears of reprisal or their safety. 

What Can You Do?

If a witness has concerns like these, you should begin by speaking with them about their worries. A visit to your lawyer or even to the courthouse in question might help assuage their concerns. And if security is the issue, the judge can take additional safety measures for the witness. 

However, if you cannot convince them, consider how vital they are to your case. If necessary, the judge may issue a subpoena. This is a legal summons to appear in court and give testimony. Failure to respond could result in penalties for the witness. 

The risk of a subpoena is that it creates friction between you and the witness. Being forced to appear changes the dynamic of their involvement, which may lead to less effective testimony and long-term damage to your relationship. 

Can Some Witnesses Be Excused?

A subpoena doesn't always solve the problem, unfortunately. Some witnesses are what is known as legally unavailable. This means that there are legitimate and insurmountable barriers to their participation. 

A person may be legally unavailable if they have passed away or become too ill to testify, if their testimony may be self-incriminating, if they can no longer remember the subject at hand, if they have spousal privilege, or if they simply cannot be found. 

In this case, you may be able to introduce out-of-court statements made prior to the trial. Exceptions to the rules forbidding out-of-court statements (hearsay) include prior testimony, deathbed confessions, statements made against their own interests, business records, and family history statements. 

Where to Start

If a witness in your case is hesitant to participate or may become unavailable, start by learning more about your options. For more info about attorney services, contact a local professional.