In a criminal trial, the 6th Amendment to the US Constitution guarantees that the accused has the right to a "compulsory process for obtaining witnesses in his favor." Meaning that a person charged with a crime can force other people to testify in his defense if he thinks it will help his case, and the witness's refusal to do so is itself a crime in its own merit.

Does the prosecution enjoy the same privilege?

Let's say the district attorney wants to call a witness who they believe has relevant information about a crime to testify against a defendant. Let's assume the following hypothetical scenario:

  • The witness has no physical evidence or documents to turn over, so there's nothing to subpoena; their testimony would be based solely on their memory, knowledge, or perceptions.
  • The witness is not implicated in the crime (or any other crime for that matter), so there are no 5th Amendment concerns over self-incrimination.
  • The witness has no value to the defense's case, so their testimony could only harm, not help the defendant.
  • The witness, for whatever reason, refuses to testify.

Can the government compel witnesses to testify against the accused in the same way the accused can compel witnesses to testify in their defense?

Would the reason for the witness's refusal matter? If the witness had a credible fear for their safety, it would be one thing. But what if the witness had ethical objections -- like maybe they just don't want to help the government convict a person for something they don't believe should be illegal in the first place?

1 Answer 1


There is no general right to avoid testifying in court on any matter. There are some protections for defendants, victims, and minors, and for material that's confidential in some way (e.g. medical records). Subpoenas must also avoid causing undue hardship to the prospective witness where possible. Otherwise, a person who is subpoenaed to testify in court must do so or face jail and/or contempt charges.

Title 28 US Code, section 1826:

Whenever a witness in any proceeding before ... any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information ... the court ... may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information.

Federal Rules of Criminal Procedure, Rule 17:

(g) Contempt. The court ... may hold in contempt a witness who, without adequate excuse, disobeys a subpoena issued by a federal court in that district.

At the common law, courts are traditionally given broad powers to compel testimony from almost anyone who they might require to give it; this is a power that is inherent in their role as court and doesn't require a particular statute to give force to it. The effective of the 6th Amendment is to ensure that defendants in criminal cases have access to this power instead of the government monopolizing it.

An aside:

The witness has no physical evidence or documents to turn over, so there's nothing to subpoena;

As used in the statutes and rules above, subpoena includes both the subpoena duces tecum - for production of documents or other physical evidence - and the subpoena ad testificandum - for testimony in court. Both are subject to the same rules and may be included in the same court order.

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