What would happen if someone were being sworn in as a witness in court and answered NO to the question about telling the truth, the whole truth and nothing but the truth? Would they be cited for contempt of court? At least they’re being honest right up front by telling us that they will probably lie on the stand.
I would have thought they would then not be allowed to give any evidence.
That’s what I would think. If I were the judge, I’d thank the guy for his honesty and then tell him to go home.
The USA may be different to the UK but they need to take the oath before taking the stand - It’s not a Yes or no answer. If they can’t take the oath in an affirmative way then they disqualify themselves from giving evidence.
If a person refuses to take the oath, they are not permitted to testify. They may be found in contempt of court and imprisoned by the judge.
- Rick
Assuming that it was a third-party witness who had been subpoenad, I would say that yeah, the guy could be held in contempt of court for refusing to appear and give sworn (or affirmed) testimony.
If a party offered such a person as a witness (without a subpoena), then yeah, I would think the judge would send him home.
This situation acutally happened to a buddy of mine a month or two ago at an administrative hearing. One of the parties asked (and received permission) for a witness to appear by telephone. The judge called the person up. The person answered “no” when asked if he swore (or affirmed) to testify truthfully. The judge would not allow him to testify.
Just to make something clear. A witness need not take an oath. If he is an atheist, he merely needs to affirm that he will tell the truth.
I am not a lawyer, but lucwarm’s witness was not “sent home.” [Also, it was an administrative hearing, not a criminal or civil case. Very different rules apply to the administrative hearings I’ve seen.]
The judge could find him in contempt for appearing in court, and refusing to tell the truth. That’s different than simply not showing up of your testimony is not compelled by a subpoena (which often happens - not all witnesses are terribly reliable or civic-minded) If the judge in lucwarm’s case had cared to, he could have issued a subpoena for the witness to appear in court, but it sounds like he had doubts about the reliability of the testimony, and the attorney who wanted him to testify probably wouldn’t be so eager, either.
If the testimony is compelled by a subpoena [“under [threat of] punishment” in Latin.] a judge probably would find him in contempt (at least) for not taking the oath, and can issue a warrant to be brought before the court if he doesn’t simply doesn’t show up.
Don’t mess with judges. They may let you get away with a lot, but they can also reel in the leash. You don’t want to hit the end of it.
Well, the guy was sent home in a metaphorical sense – the judge said goodbye and hung up the phone. (Note that the witness had not been subpoenad at that point.)
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I kinda doubt it. I don’t really see a difference between refusing to come to court and coming to court but refusing to take the oath (or affirmation.)
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Agree.
Although an administrative law judge could find someone in contempt, they have no police power-they can’t order anyone locked up, or fine anyone AFAIK.
In one case, you are directly impugning the dignity of a theoretically public courtroom. In the other case, the insult is less direct.
I’d more likely get away with calling a judge a jackass over the phone, during the performance of his duties, than in his courtroom, in front of observers and the staff. and I’d far more likely get away with saying [to myself and others] “the judge is a jackass, I’m not even going” and then not showing up. (Unless, of course, my attendance was compelled.)
That’s what I meant by “not mesing with judges”. There is a personal element to a judge’s decision to find me in contempt - the degree and form of my contempt, how much fuss it would be to impose it (far easier if I’m on the stand than across the state), what kind of day he’s having, and many other imponderables - some of which aren’t entirely imponderable at all.
That may be so, but as a legal matter, I don’t really see how a Court would have the power to hold someone in contempt for refusing to testify if they had not been previously commanded to do so.
You can’t?!?! You are kidding me. You mean that the one time I sat in a court, the judge couldn’t fine the plaintiff for saying “Aw, fuck off!” in court? 
Tripler
I’m sure a judge can. It’s part of his job to enforce proper working of the courts.
Tripler-the judge in your case was not an administrative law judge. Examples of the latter are workers’ comp, disability, unemployment, & Social Security. They don’t even wear robes, or sit on 'benches."In Cal this is true, other jurisdictions may vary, but Soc Sec is the same everywhere.
Gotcha. I do see the difference.
But are you telling me that certain judges can’t impose any sort of sanctions against a party for obstruction of either procedure or justice?
Tripler
I can’t see that. A “toothless bite” from a judge?
For what it’s worth, the ALJ’s I practice before cannot hold someone in contempt for failure to obey a subpoena. In theory, the subpoena is enforceable by the general trial court.
Well, as a practical matter, they would simply say “You came here to deliberately waste this court’s time.” End of story. Alas, unless you violate a specific guideline in that jurisdiction that allows another penalty, you’d probably only have to apologize.
Then again, the judge can call over the clerk, and issue a subpoena on the spot. I’m not even sure that’s required (a judge’s direct instruction in a courtroom has a lot of weight), but it would be trivial to do. How do you think the attorneys get subpoenas issued?
Most likely, the attorney won’t want to ask any questions at that point, absent a bombshell. The witness’ credibity is questionable. All in all, judges usually know which battles are usually worth fighting (to them)
In re: “Administrative court judges”
Though the specifics vary widely according to type and jurisdiction, administrative court judges [formerly called “hearing examiners”] aren’t necessarily what you would consider a “real judge”. For example, many or most administrative court judges aren’t part of the Judicial branch of the government. They are often the employee of an agency that is responsible for enforcing a certain regulation (e.g. in labor courts, they may be employees of the Dept of Labor, in the executive branch). They may not even be lawyers (e.g. the last I checked, which was over 10 years ago, an IRS Tax Court Judge or equivalent could appoint anyone they wished to act as judge in a hearing, if it would be too inconvenient for them to preside over the hearing themselves. This was not terribly uncommon. Often the appointee was local tax attorney or a non-attorney IRS official.)
Of course, an Administrative Court judge has tremendous leverage over the parties in the case (since noncompliance can sway the verdict), but for action against third parties - yes, they often go to a civil or criminal court to get an order with “teeth”. If you think about the cases you know of in your own social circle, you probably know of many cases where someone had to seek an order from a different court to allow and administrative court action to proceed suitably. (often this is simply a matter of calling the other court’s clerk, then sending someone over to pick up the signed order)
They are not “administrative court judges” but “administrative law judges” and have the powers delineated in the the Federal Code under Administrative Proceedings Act (APA). (I don’t remember which Title it is.) They do not hold trials, since they are not courts, but hold “hearings.” It is an administrative proceeding and cannot possibly hold anyone in contempt of court, since no court is involved.
The Federal Code mandates that they are not employees of the agency, but are independent from the agency (or administration). This is necessary so there will be no appearance of subjectivity.
Requirements to become an Administrative Law Judge (ALJ) are very strict. In addition to being a lawyer and a member of a state bar (at least), one must have at least seven years of trial practice. I don’t know the situation referred to re tax courts, but that may have been a special situation on a temporary basis. In any event, if the ALJ did have the authority to appoint someone else to preside over the hearing, that person was not an ALJ. Perhaps someone called a “senior attorney advisor.”
Upon reflection, the reason why ALJs are independent from the agency is not because of any appearance of subjectivity. (After all, most think they are.) It is because it was deemed necessary for them not to be held accountable on productivity to the respective agency. This has really been a bone of contention. If an ALJ does not decide his share of cases, the caselog becomes backlogged and the agency founders. I know that they are urged to produce more by the agency in many cases. However, the ALJS not only have their own union, they are protected by the APA.
Agree.
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Umm, attorneys are officers of the court and can issue subpoenas under their own signature. I imagine that in the scenario described, the judge might give the attorneys a chance to ask the witness to be subpoenas. More likely the judge would simply send the witness on his way.
It is possible though that the judge might subpoena the witness on his or her own motion.
For what it’s worth, I practice mainly in two jurisdictions. The ALJ’s in one jurisdiction must be attorneys can go straight out of law school AFAIK. In the other, the ALJ’s (known as hearing officers) do not have to be attorneys at all. Of course this is at the state level, I imagine the federal requirements are stricter.