Can a witness refuse to testify in a civil case?

No. A witness cannot simply refuse to testify. However, despite the court’s order to do so, witnesses sometimes refuse to testify. But there are exceptions to the rule that a witness must testify.

Author: Brad Nakase, Attorney

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A witness cannot refuse to testify. A witness refusal to testify is considered civil contempt and can be fined or jailed. “No one, not even the President of the United States, can automatically avoid testifying in a deposition, before a grand jury, or in a courtroom at trial,” Ninth Circuit Court of Appeal – Troas V. Barnett. However, a witness may refuse to testify by invoking the 5th Amendment privilege against criminal self-incrimination.

Some witnesses do not want to testify for some reason or another. However, those who do not wish to testify ask: are witnesses in civil cases allowed to plead the 5th?

In this article, our Los Angeles civil litigation attorney will discuss witness refusal to testify as follows:

1. Does a witnesses have the legal right to remain silent in a civil case?
2. What happens if you plead the 5th in a civil case?

Does a witnesses have the legal right to remain silent in a civil case?

A witness is free to invoke their Fifth Amendment right right against self-incrimination to prevent the disclosure of information that he or she reasonably believes could tend to incriminate them or subject them to criminal prosecution. The Fifth Amendment establishes the right to remain silent and the right not to be a witness against yourself in a criminal case.

The right not to self-incriminate does apply to civil cases. However, there does exist a caveat. While individuals can refuse to testify in civil cases that might bring penalties upon themselves, they must provide answers to questions that will not incriminate themselves but could incriminate others. Therefore, civil case witnesses cannot refuse to respond to questions because the answers could mean the jury decides in favor of the opposing party. In simple terms, witnesses do not have to testify against themselves, but they cannot use the Fifth Amendment to “win the case.”

However, if civil court witnesses think their answers could provide enough evidence to lead to their legal troubles, they can “plead the fifth.”

Lastly, witnesses in civil cases cannot make blind claims about eventual prosecution and refuse to testify and cite the Fifth Amendment, either. Instead, the threat of imprisonment, prosecution, or other penalties must be clear and evident. Again, this distinction is for the court to decide, but we suggest all witnesses in civil cases consult with their attorneys before pleading with the Fifth Amendment.

What happens if you plead the 5th in a civil case?

A witness who pleas the Fifth should be aware that pleading the Fifth Amendment does not prevent the discovery or production of the information; rather, it simply prevents the client from disclosing the information himself. The right to silence protects the right not to be made to testify against oneself. It protects the right not to be made to incriminate oneself. In civil cases, “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” (Baxter v. Palmigiano (1976) 425 U.S. 308, 318.)

In California, a witness in a civil lawsuit can cite their right not to incriminate themselves under the 5th Amendment. Most witnesses do so to stop sharing information that they believe could incriminate themselves.

For witnesses, the Fifth Amendment means that the court does not require them to provide answers that implicate them in any way. However, the Fifth Amendment does not mean that witnesses can:

  • Refuse to answer every question
  • Refuse to respond to discovery requests

However, the Fifth Amendment does help witnesses not feel compelled to testify against themselves.

When witnesses receive a subpoena, they need to attend court according to the listed date, and if they do not, negative ramifications will follow. For example, imprisonment could follow if a witness receives a summons and ignores it. Even if a witness states they are afraid to testify or scared of one of the people featured in the case, they still cannot refuse to attend court.

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