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Let's say a witness is called to the stand. One who has been prepped by whichever attorney called them. When asked if they swear to tell the truth they ask for a lawyer. What happens next?

I know there are legal reasons that can excuse one from needing to testify1 and consequences for refusing without good reason. All seem to be legal reasons that a hesitant witness might realize need to be explained by someone qualified in law that has the interests of the witness at heart. If the witness believes no one else in the courtroom is primarily obligated to protect them can they insist on their own lawyer?

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    Did the witness know in advance that the witness would be called? Does the witness have the ability to pay for a lawyer - as the witness probably doesn't have a right to a lawyer at public expense?
    – ohwilleke
    Dec 6, 2023 at 23:20
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    "it could simply be that the witness didn’t realize their need for counseling until that moment." A losing argument. "As for public expense options I expect the judge can do as they like." The judge has no budget or authority to provide a witness with a lawyer.
    – ohwilleke
    Dec 7, 2023 at 1:44
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    @ohwilleke In what court systems can a witness be called by surprise? In the systems I know of the prosecution and defence are required to give a list of witnesses in advance of the court session. Dec 7, 2023 at 9:30
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    @candied_orange Witnesses have very few rights. Seeking a remedy that delays a trial is a bad thing. I know what judges can and can't do because I went to law school and have been a lawyer for 25 years. People who don't realize things about what will happen at a trial until that moment are routinely penalized procedurally for that as JackAidley notes. As far as realizing things as any time, "tough sh**" Judges usually don't care.
    – ohwilleke
    Dec 7, 2023 at 16:32
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    @ohwilleke nobody needs a lawyer to disregard their own interests. Almost never isn’t never. Dec 7, 2023 at 16:41

2 Answers 2

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The court can order the witness to take the oath and to testify and can hold them in contempt if they continue to refuse. The court can also give the witness an opportunity to discuss with the witness's counsel or make orders that address the witness's reluctance to take an oath or to testify. See e.g. R. v. Wall, 2009 BCSC 1933:

Mr. A was reluctant to be brought into Court. When he arrived, he initially refused to take an oath, but did so when directed by the Court. Mr. A then refused to answer the questions of Crown counsel. He continued to refuse after being directed by the Court.

...

I advised Mr. A that I was going to have to cite him for contempt in the face of the Court, and directed that he retain and instruct counsel and return to court on October 2, 2009 to reconsider his decision after obtaining advice and to give him an opportunity to purge his contempt.

In that case, the witness's concerns were ultimately addressed by ordering a publication ban on his identity. The resolution in other cases would depend on the witness's reasons for reluctance.

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The witness can be compelled to be truthful in their responses, and demanding a lawyer to tell you that fact before taking the oath is pointless. However, it is not pointless to be concerned over your Fifth Amendment right against self-incrimination (if you have such a right, as you do in the US). The witness is not competent to legally judge whether a particular answer to a posed question is perjurous, nor can they competently determine whether the answer will tend to incriminate them, and a witness cannot rely on either of the counsels acting in the witness's best interest. The witness may have the mistaken belief that the judge will protect their interests: only their own attorney has that duty. However, any right must be officially asserted, for there to be any protection.

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  • Is “I assert my rights” enough? How can the witness assert these rights when still in need of counsel? Dec 7, 2023 at 17:51
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    What does "I assert my rights" mean? Suppose you were arrested, and say "I assert my rights", is that enough? (No, you have to unambiguously demand a lawyer). You should assert your right to not self-incriminate. You should leave off the part in the movies where they say "On advice from counsel".
    – user6726
    Dec 7, 2023 at 18:28
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    The only thing the witness needs to do is communicate that he has a concern over self incrimination, and would like the advice of legal counsel.
    – user6726
    Dec 7, 2023 at 20:01
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    @candied_orange the entire point of the witness having their own lawyer is to help them determine what they can and can't say. But mostly, they have to say everything, excepting only that which would cause self-incrimination. Dec 8, 2023 at 13:15
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    @candied_orange To do that, retain counsel when you're first called to be a witness, prior to taking the stand. If you're on the stand when you realize you need a lawyer, you can ask the judge to allow you to do so, but just realize that they may not be accommodating of your lack of planning, and you may need to do so from inside a jail cell. Often punishment for contempt is not punitive (unless the judge thinks you're deliberately sabotaging the trial) but merely to induce compliance, so chances are you'll get out soon after you're able to go back on the stand.
    – R.M.
    Dec 8, 2023 at 16:05

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