do u have to [testify if subpoenaed]?

[Oakminster]

@Campion

In federal court, my memory is that in civil actions an adverse inference can be drawn from the exercise of a privilege, but in California state matters, no such inference can be drawn. See Cal. Evid. Code section 913.

That’s interesting. What happens if you’re trying a diversity case under California law in federal court? I don’t really do any federal work, and law school was a long time ago. I think I almost remember something about the court applying state substantive law, but federal procedural law…

[Oakminster]

@Bearflag70

I recall reading that you cannot plead the 5th in a civil matter if there is no risk of criminal prosecution (i.e., all relevant criminal statutes of limitation have expired, grant of criminal immunity, etc.).

That also came up in my recent case. The witness was already convicted of a misdemeanor domestic violence charge for one incident, and bound over to a grand jury on multiple felony charges for other incidents. The Court required him to answer questions about the misdemeanor incident, because he was no longer subject to prosecution on that charge, but allowed him to refuse to answer any questions about the pending charges.

[md2000]

The basic premise of the British-American court system is that you cannot refuse to testify. There are those exceptions recognized by law, which have a basis in history and are logical exceptions -

• wife testifying against husband, was, IIRC, even a Roman law. First, you can’t trust what they say; it may be motivated by other than justice.
• you cannot be forced to testify against yourself. (Hence, incriminate yourself). This prevented fishing expeditions or torture - he’s a suspect, so let’s charge him and make him explain what happened; and if we don’t like the answer, charge him with perjury.
• special exceptions over the years; you can’t be forced to reveal confidences as a lawyer; if you could, the accused would not get the right to a fair trial if he can’t trust his lawyer.
• you can’t be forced to reveeal confidences as a preist receiving confession; if you could, the confessional would not remain sacred, and the confession would not be fair and honest; beside how would they even know the suspect confessed? It’s still a fishing expedition.
  -the same for reporter shield laws; the right of the public to know, and hence the right of a reporter to protect sources, is more important than one conviction.

Otherwise, you don’t have a choice. You must tell the court what you know.

As for civil cases; it’s not “beyond reasonable doubt”. Two parties are arguing over something, and the reluctance of a witness to say something under oath should indicate something. If you fail to rebut the other side’s points with evidence, that probably gives the other side some credibility. If you can bolster their case and refuse to do so and they can show you have a bias against them (there’s a limit to what the 5th covers) then even more reason to infer something.

The whole point of trials - civil or criminal - is that the judge and/or jury hear all the witnesses to decide if they are credible. A live appearance conveys so much more than a transcript or repeating hearsay, and the reaction with the accused present is another good body language indicator.

I’m sure there have been lots of trials where the verdict was against some evidence simply because the jury did not believe a witness once they saw the whole performance.