Compelling A Witness To Speak: How?

Factual Questions
1

The family of a missing teenager believes that one or more persons connected to the alleged abductor know something but aren’t fully cooperating with the cops.

"The Thomas family is asking to obtain information from students, teacher, and staff at Culleoka Unit School, where Cummins taught health sciences classes. The family said that others are too resistant to talk about Cummins. The family thinks that the more information given about the ex-teacher, the better the chances are of locating him.

[Says family attorney Jason Whatley]: ‘It has been difficult to get information that is reliable. One witness in particular has been unwilling to assist… we have witnesses who will not speak. We have witnesses who, frankly, have not been helpful in solidifying their testimony and what it will be.’"

How, exactly, does a court “compel” you to testify? Authorizing waterboarding? Threatening you with Contempt and throwing you in the clink? Does the First Amendment not guarantee you the right not to speak, as well as to speak?

2

It is the Fifth not First Amendment to work here and only if your answer leads to self-incrimination…

To compel you to testify it has to be by subpoena (under penalty) and if you refuse and the Fifth is not invoked the judge can throw you in jail until you testify even if it takes years.

If it is a police investigation you do not have to cooperate - it is not “Obstruction of Justice” to be silent despite what cops and Law & Order says. However if you do talk and say something untrue, it could be obstruction. Thus another reason to NTTC.

3

IANAL but I guess the witness could be threatened with a charge of obstructing justice or if they do testify and say they know nothing they could be threatened with perjury charges. The only constitutional protection is that you can’t be forced to incriminate yourself. As a witness that might not apply.

4

Keep in mind I’m an engineer, not a lawyer. Here’s my understanding of it.

Threatening you with contempt and throwing you in the clink is definitely an option. You can also be fined. No waterboarding, though.

The First Amendment doesn’t protect you here. That’s not what the First Amendment is all about. The Fifth Amendment might apply, and you can refuse to answer questions if those answers might cause you to incriminate yourself. If there’s no chance of incrimination though, you can’t simply refuse to testify.

There’s a thing called Spousal Privilege. You can’t be forced to testify against your spouse.

You also can’t be forced to testify against your client if you are their lawyer, or your patient if you are a doctor or therapist or something along those lines.

An unreliable witness can’t be forced to testify. An unreliable witness would be someone with mental illness, or an elderly person with dementia, for example. Young children are often considered to be unreliable witnesses, but sometimes children are still forced to testify so their age isn’t necessarily a guarantee.

There’s also a thing called Confessional Privilege. Your priest can’t be forced to testify against you.

There may be a few more categories that I’m not aware of, but basically, if you don’t fall into one of those categories, you can’t just refuse to answer.

5

WRT to the specific case the OP refers to, this sounds more like the family’s attorney posturing trying to put pressure on law enforcement to do more.

6

I am neither an engineer nor a lawyer … but I believe the court can grant immunity to a witness such that anything the witness says cannot be used against them in a court of law … the Fifth Amendment only guaranties the right to not self-incriminate, and with immunity anything said wouldn’t be self-incrimination …

This happened to a friend of mine in Wisconsin in the mid 1980’s … he sat the witness stand, took the Fifth, the judge granted him immunity and he was forced to testify … or face criminal contempt charges …

7

You don’t have to say anything to the police. hence the NTTC advice.

If the prosecutor puts together a grand jury, then anyone who is subpoena’d has to take the stand and testify. they can (legitimately) “plead the fifth”, that is, decline to answer questions where they believe they would incriminate themselves. However, if this happens, the prosecutor can give them immunity from prosecution for those crimes, in which case they are the required to answer the questions they pleaded the fifth on.

Prosecutors (and anyone) cannot suggest to a judge or jury that your pleading the fifth or refusing to talk to the police should be taken as proof of guilt in the trial at hand.

As mentioned, failure to testify when obliged to can result in contempt of court charges.

The same situation about testimony applies at any trial. Once a matter has become a matter of criminal law, you don’t have the option (like you do with the police) to say “I’d rather not answer.”

The defendant in a trial has the option to not testify. If he does testify, however (IANAL) he cannot then plead the fifth(?). This means, a defendant can’t get up on the stand, say “I didn’t do it, I was with my late grandma watching TV” and then refuse to answer any more detail. You either testify and answer questions, or you don’t. No halfway. Once again, declining to take the stand cannot be raised as an indicator of guilt. The prosecutor cannot say “if he didn’t do it, he would have gotten on the stand and said so…”

(If you watched Law and Order UK, you would have seen an interesting exception there: “If you fail to mention something now and bring it up later, that omission may be held against you.” Should you suddenly say just before the trial “I was with me grandma all day when the murder happened” the prosecutor ***can ***point out you didn’t mention that for 6 months when first arrested. Implication - you just now made it up…)

I don’t know what the criteria are for empanelling a grand jury and compelling testimony. Generally, it seems to happen when the prosecutor knows which person or ham sandwich he’s looking to indict and wants to be sure the necessary testimony details are there. I’m not sure it’s used as a fishing expedition when they are not sure what really happened… but I may be mistaken. It’s convenient too, because it will expose any problems with testimony or the reluctance to provide it, which can be resolved before the matter gets to an actual criminal trial. Not sure (again, IANAL) but you can’t just put a trial on hold halfway through waiting for a witness to testify for months or years; and once a jury is empanelled, the defendant cannot be retried if found not guilty.

With the OP it seems the family’s lawyer is either trying to guilt the witnesses into telling what they know, or shame the prosecutor into doing more.

8

I guess what I don’t understand here is how/why the court can build a bridge (so to speak) from “victim’s dad thinks X knows something” to “X should go to jail if he doesn’t talk.” Maybe X truly doesn’t know anything? Maybe X knows something but doing so would drag the victim’s name through the mud and he wants to spare her family the gory details (like, say, the girl is blackmailing the teacher, or something).

This is just a really weird situation and I can’t make sense of it.

9

If X truly doesn’t know anything then he should be fine, he has no reason not to talk. If he knows something and he’s keeping quiet because he wants to spare the victim or family then he’s in trouble. That’s not a legitimate reason for keeping silent. The court is simply trying to ascertain the truth of this matter. If the guy obstructs that process then he’s potentially obstructing justice and he may have to face the consequences.

10

We have a recent example of something fairly sorta maybe close or akin … Michael Flynn asking for immunity before he testifies before Congress … if Congress really really wants to know how much [political jab] … Flynn would be happy to [political jab] … just as long as he walk away clean and [political jab] …

11

I am not an anything, but it would appear that…
Aside from making the person come in to court, unless you have some hard evidence that they saw something, you can not really make them testify.

They will come in, sit down, and say i didn’t see anything, and there is not much you can threaten them with unless you have some kind of evidence that they are lying.

At least that is how things appear

12

IIRC it is not that they can force you to testify against your spouse. It is your spouse that holds the privilege as in they can force you to not talk.

I.e. If you come in and tell your wife that you just killed someone and she decides to testify against you in court you can keep her off the witness stand (she can tell the cops but the cops can not use her statement as evidence…that will however prompt them to go look for other evidence).

13

Do you mean how do the police get you or anyone else that someone says might know something about a crime to make a statement as in the quoted news story? I’d say through all sorts of communication strategies varying from friendly chats(most of which go nowhere) to dragging you off in cuffs and making all kinds of threats of what’s going to happen if you don’t talk (but they need more than a hunch to go to those extremes).

That’s a different question than how does the court compel an actual subpoenaed witness to testify, and that question seems to have been answered.

14

IANAL but according to Wikipedia, there are two separate privileges. The communications privilege is the one you refer to, where communication between spouses is considered privileged communication. so either spouse can prevent the other one from testifying against them. There is also testimonial privilege, or spousal immunity, where a person can’t be forced to testify against their spouse. Different US states apply these privileges differently.

15

Correction:
After Salinas, the 5th Amendment must be actively invoked. Simply refusing to talk can be used as evidence of guilt.

16

Not exactly.

Salinas applies to silence during a voluntary conversation with police. If a suspect has been arrested and is then subject to the “inherently compelling pressures” of a custodial interrogation, he need not explicitly invoke his right to remain silent in order to rely upon it.

Salinas rests, in other words, only on noncustodial silence and says that such silence may be used as evidence of guilt.

Say, “I haven’t done anything wrong, I have a right to remain silent, and I want an attorney now.” Repeat ad infinitum.

17

IANAL, again, but I would think that dragging someone off in handcuffs can only happen if there is probably cause to arrest them for a specific crime. The whole point here is that “not telling the police what you know about someone else’s crime” is not a crime. If the police can concoct a reasonable case about collusion, or if the person physically conceals or destroys physical evidence and it appears to be done deliberately to hinder prosecution - that’s obstruction. Lying about a crime is also obstruction. But not telling the police something is not a crime, and you cannot be compelled to speak until you are on the witness stand.

In fact, false arrest and threats would be counterproductive.
“So, Mr. Jones, you told the police you saw my client walk by covered in blood holding a knife?”
“Yes.”
“What did the police say to you before you told them this?”
“They said if I didn’t say that, they’d throw me in a cell with Bubba and he’d cornhole me twice a day…”

18

Nitpick: that line of questioning, from a prosecutor to a prosecution witness, is impermissible leading of the witness. :wink:

A court cannot compel a witness to testify in the absence of a pending proceeding. You can be ordered to testify at trial or before a grand jury, but you cannot be ordered to testify at the investigation stage. In other words, you don’t have to tell the police or a prosecutor anything unless you are under subpoena - which you won’t be until there is a grand jury empaneled or charges have been filed against someone.

And yes, if you refuse to testify at trial, you can be held in contempt (“direct criminal contempt”) and locked up until you agree to talk, subject to certain limitations. You may recall Greg Anderson, Barry Bonds’ trainer, who was locked up for refusing to testify before the grand jury convened to investigate perjury charges against Bonds.

19

I was thinking this would be the defense line of questioning…

"You testified X, but what persuasion was made to make you testify?’

It happens all the time on TV, of course - usually for felons in custody, along the lines of “what did the state offer you in return for testimony against my client?”

20

Just because you see it happen on TV doesn’t mean lawyers can get away with it in court.