Also known as: refuse to testify · refuses to testify · refused to testify · refusing to testify · right not to testify
Written by attorneys · grounded in primary & secondary sources — see below
A witness's refusal to provide testimony on a particular subject after a court has ordered the witness to do so. This conduct satisfies one statutory category of witness unavailability for purposes of certain hearsay exceptions.
Select any source to read its text and confirm it supports the definition.
Owen called Sky Crop's former treasurer to the stand and asked about a written confession concerning falsified yield reports. The treasurer refused to answer any questions even after the judge ordered him to do so. Because the refusal occurred despite the court order, the treasurer qualified as unavailable under the applicable evidentiary rule.
Alex published leaked emails about insider trading at Titan Hedge Fund. A federal grand jury investigating securities fraud subpoenaed Alex to identify the junior analyst who sent the emails. Alex moved to quash on First Amendment grounds, but the court denied the motion and required testimony because no constitutional privilege protects reporters from good-faith grand jury demands.
Leo faced computer fraud charges after logs suggested his credentials were used to copy proprietary code. The judge instructed the jury that Leo's decision not to testify could be considered as evidence of guilt. The reviewing court reversed the conviction because the instruction improperly penalized the exercise of the right not to testify.
Trammel was charged with drug offenses. The government called his wife to testify about his activities. She refused to answer questions concerning her husband despite a court order. The refusal raised questions about the scope of any spousal testimonial privilege and whether it could be asserted after a formal order to testify.
Giles was charged with murdering his former girlfriend. The prosecution sought to introduce the victim's prior statements describing the abuse. Giles argued that the victim's absence resulted from his own conduct, but the court examined whether the refusal or absence was caused by wrongdoing intended to prevent testimony.
Kastigar refused to answer grand jury questions about alleged criminal activity, asserting the Fifth Amendment. The government granted use and derivative-use immunity. Kastigar still declined to testify. The court held that the immunity was coextensive with the privilege and therefore sufficient to compel testimony.
A declarant becomes unavailable when the declarant refuses to testify about the subject matter despite a court order to do so. The rule requires an actual refusal on the stand after the court has issued an order and threatened contempt. No showing that the proponent caused the refusal is needed when the proponent is not responsible for the witness's defiance.
Supporting sources
…shall enjoy the right . . . to be confronted with the witnesses against him." At petitioner's trial, Lonardo exercised his right not to testify. Petitioner argued that Lonardo's unavailability rendered the admission of his out-of-court statements unconstitutional since petitioner had no opportunity to confront Lonardo as to these…
…U. S. 323, 331 (1950). As such, they must be strictly construed and accepted “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Elkins v. United States , 364 U.…
…anomalies. Imagine a defendant who murders a victim, say, his ex-girlfriend. The murder so frightens other witnesses that they refuse to testify
…event of a subpoena, under today's decision, the newsman will know that he must choose between being punished for contempt if he refuses to testify, or violating his profession's ethics[^maj-65] and impairing his resourcefulness as a reporter if he discloses confidential information.[^maj-66] Again, the commonsense understanding that…
…the issue of penalty. The trial court instructed the jury on the issue of guilt, stating that a defendant has a constitutional right not to testify. But it told the jury:[^maj-2] "As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he…
The First Amendment does not grant journalists a privilege to refuse to testify before grand juries or to withhold confidential sources. Requiring reporters to appear and testify in good-faith grand jury investigations does not impermissibly burden freedom of the press. No constitutional reporter's privilege exists in this setting.
Supporting sources
A court may not instruct the jury that a defendant's silence can be considered as evidence of guilt. Such an instruction penalizes the exercise of the Fifth Amendment privilege and undermines the presumption of innocence. The prosecution must prove every element beyond a reasonable doubt without relying on the defendant's refusal to testify.
Supporting sources
Use and derivative-use immunity is coextensive with the Fifth Amendment privilege against self-incrimination. Once immunity is granted, the witness may be compelled to testify because the protection matches the scope of the privilege. Continued refusal after immunity can result in contempt sanctions.