Can a subpoenaed witness plead the fifth?
Asked by: Dr. Nigel Kovacek | Last update: June 7, 2025Score: 5/5 (68 votes)
If a witness chooses to plead the fifth, unlike criminal defendants, this does not allow them to avoid testifying altogether. Witnesses subpoenaed to testify must testify, but can plead the fifth for questions that they deem are self-incriminating.
Can you plead the Fifth after being subpoenaed?
The Fifth Amendment can be invoked only in certain situations. An individual can only invoke the Fifth Amendment in response to a communication that is compelled, such as through a subpoena or other legal process. The communication must also be testimonial in nature.
Can I refuse to testify if I get a subpoena?
A subpoena is a court order to appear. You cannot refuse. If you do you can and will be arrested and brought to court anyway and may face fines as well for refusal. Once on the witness stand you must truthfully answer all questions put to you by either attorney or the judge. You cannot refuse to answer questions.
Can you plead the 5th in court as a witness?
A witness may plead the Fifth if their testimony could expose them to criminal charges. However, unlike in criminal cases, a judge or jury can draw an adverse inference when a defendant in a civil case invokes the Fifth Amendment.
Do you have the right to remain silent when subpoenaed?
You have the constitutional right to remain silent. It is not a crime to refuse to answer questions. You do not have to talk to anyone, even if you have been arrested or are in jail.
Can the 5th amendment protect you on the witness stand?
When can you not plead the Fifth?
As noted above, the Fifth Amendment Privilege applies only to self-incriminating testimony relating to a crime. It does not apply to civil or family matters. You cannot assert this protection to avoid testifying that you breached a contract or that you left your spouse, for example, as these are not crimes.
How do I get out of a subpoena?
If you have been served with a subpoena to testify in a criminal trial in Santa Rosa, CA and you do not want to testify, your best course of action is to contact a criminal defense attorney who can help you work with the prosecutor and/or lawyer for the defendant to see if you can avoid going to court.
How do I refuse to be a witness?
If you receive a subpoena and do not want to testify in court, you can plead the Fifth Amendment to the U.S. Constitution. The Fifth Amendment gives you the right against self-incrimination. This allows you to refuse to answer questions or provide testimony that could incriminate you.
Why would an innocent person plead the Fifth?
Even if you are completely innocent, discrepancies in your testimony, memory lapses, or misunderstandings can lead to accusations of perjury. Invoking the Fifth allows you to avoid answering questions that could put you in a situation where your words are twisted and you are accused of lying.
Can you get out of a subpoena for medical reasons?
Whether an individual can be excused from a subpoena due to medical reasons is ultimately a question of balance, evaluated case-by-case.
What happens if you are subpoenaed as a witness and don't show up?
The judge may not wait for a witness who has not been subpoenaed to show up before making a decision. What if the person doesn't comply with the subpoena? If the person doesn't come to court, they can be held in contempt of court and ordered to pay up to $500 in fines.
How to quash a subpoena?
Any person to whom a subpoena is directed, or any party, may file a motion to quash or limit the subpoena. The motion must include reasons why compliance with the subpoena should not be required or the subpoena's scope should be limited. A party must file the motion with the judge and serve it on the other parties.
Is ignoring a subpoena a felony?
Disobeying a subpoena may also be punished with a contempt charge under California Penal Code § 1331. The maximum punishment for a misdemeanor contempt charge in California is generally 6 months in the county jail, a $1000 fine, or both.
Do I need a lawyer if I am subpoenaed?
Do You Need a Criminal Defense Lawyer? In most cases, a subpoenaed witness will likely not need the assistance of an attorney. However, in certain cases, the witness may be subjecting himself to criminal liability by appearing and testifying under oath.
Does a subpoena mean I'm in trouble?
A subpoena is not an automatic indictment, but the government wants you to believe you're guilty so you cave in. Prosecutors chase convictions under United States v. Nixon, 418 U.S. 683 (1974), which confirmed how subpoenas can pry into almost anything.
Can you be forced to testify against yourself?
The Fifth Amendment of the Constitution establishes the privilege against self- incrimination. This prevents the government from forcing a person to testify against himself.
Can you go to jail for pleading the fifth?
The 5th Amendment protects individuals from being forced to testify against themselves. An individual who pleads the 5th cannot be required to answer questions that would tend to incriminate himself or herself. Generally, there is no penalty against the individual for invoking their 5th Amendment rights.
Do witnesses have the right to remain silent?
Reality: In California, the prosecution generally can't use your silence as evidence of guilt, especially if you've made it clear that you're invoking your right to remain silent.
Is pleading the fifth good or bad?
So, Why Take the Fifth if Innocent? The Fifth Amendment protects both the innocent and the guilty. An innocent person could plead the fifth if they are innocent of the crime being investigated, but answering could lead to minor, unrelated criminal charges.
Can a witness decline to testify?
If a victim or witness refuses to testify, the judge could hold them in contempt of court, as defined under Penal Code 166 PC. This misdemeanor carries fines and up to six months in jail in California, underscoring the gravity of their refusal. Also, the judge can decide to fine them or detain them until they comply.
Can you say no to being called as a witness?
Once you have been given the subpoena, you must legally oblige.
Can you decline to answer as a witness?
The Fifth Amendment provides the right against self-incrimination. Individuals can refuse to answer questions if responses might incriminate them. Courts uphold this right to prevent self-incrimination during depositions.
Can I decline a subpoena?
The court will then consider the challenge or objection and make a ruling. While it may be possible to challenge or object to a subpoena in certain situations, it is generally a legally binding order that must be complied with and shouldn't be refused.
Can you hide from a subpoena?
If you ignore the subpoena, not only is this likely to raise questions as to why you have chosen not to respond as required, but it could also lead to being held in contempt of court.
How long do subpoenas last?
If it is a subpoena as distinguished from a case starting summons and complaint, a subpoena expires on its return date. But a summons is good for 90 days after the starting of the law suit and can be served alternatively to in hand service.