1

If a person receives a subpoena and does not want to testify, do they have to give a reason? For example, let's imagine a person who was driving a car when it was involved in an accident that resulted in a fatality is subpoened to give testimony at an inquest. The person refuses to testify without giving a reason.

Can the judge then fine or imprison the person?

If the answer is "yes," then what is the recourse of the person? Can they appeal the ruling to an appellate court of some time and submit a brief that more or less that being forced to testify could incriminate the witness.

In other words, the fundamental question here is: Is it the judge's duty to recognize when testimony could be incriminating and excuse a witness, or does the witness have a legal onus to justify the refusal to testify, even when it is obvious that the possibility of self-incrimination exists?

2

Disclaimer: All of the following should be preceded by "In theory". The reality is oftentimes very different because some or many courts themselves disavow the law.

Does the subject of subpoena have to give a reason when refusing to testify?

Yes. The witness would need to argue in a "motion to quash subpoena" the reason(s) why he should be excused from testifying.

The person refuses to testify without giving a reason. Can the judge then fine or imprison the person?

Yes. First the party who seeks to depose that witness would need to file a "motion to show [good] cause".

If the witness fails to respond to that motion persuasively (or at all), the court would have to find him in civil contempt. At that point the court at its discretion will give a new deadline for the witness to comply with the subpoena. Persistent failure to comply therewith will prompt the court to order a sanction, which may be in the form of fine, prison, or other injunctions till the witness complies with the subpoena/order.

Can they appeal the ruling to an appellate court of some time and submit a brief that more or less that being forced to testify could incriminate the witness.

Yes, but that seems futile and excessive because the witness is unlikely to persuade that any and all testimony he provides will amount to self-incrimination.

A more appropriate approach would consist of testifying at deposition and raise there the pertinent objection(s) to questions that truly hinder the witness's right against self-incrimination.

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  • Could the witness turn up for the deposition and then just reply "I decline to answer on the grounds that I might incriminate myself" to every question? – Paul Johnson Feb 23 at 18:26
  • @PaulJohnson No. That would be equivalent to skipping deposition altogether, which would trigger the corresponding sanctions. – Iñaki Viggers Feb 23 at 18:39

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