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Do Witnesses Have to Testify At Trial?: Ask a Boston Criminal Attorney

It is the right of the district attorney and the defendant to call witnesses to testify at trial.  Most people dread the process.  They don’t want to get up before a jury, take an oath and testify against someone.  Others don’t want the inconvenience of sitting around a courthouse for hours, waiting to be called to the witness stand.  Some people are afraid that if they testify they might get in trouble themselves.  It is this last category of people who call my office asking me for help.  This post examines your rights and obligations when called to testify as a witness at a criminal trial in Massachusetts.  

The Process of Subpoenaing Someone in Massachusetts

Pursuant to Massachusetts Rule of Criminal Procedure 17(a) a subpoena, often called a summons in Massachusetts can be issued to compel a witness to appear in court and give testimony.  Service of the summons can be made by giving it to the witness in hand, leaving it at his home, or mailing it to the person’s last known address.  Service can be made by a constable, a disinterested person over the age of eighteen or a deputy sheriff.

What Should I Do If I Get A Summons?

For one thing, you can’t ignore the summons.  Judges will go out of their way to compel people to come into court.  This is particularly true where the lawyer shows the judge that the witness was properly summonsed.  If you have reason why you don’t want to testify you should call a criminal attorney right away.  There are times when witnesses should not testify.  Keep in mind that whoever summonsed you to testify at trial did so to win his case.  A criminal defense lawyer who subpoenas you is concerned about his client, not you.  For this reason you should have your own lawyer. 

Will I Have to Testify?

The answer to this question depends on who you are and what you have at stake.  If there is any chance that your testimony will subject you to criminal charges you have a Fifth Amendment right not to testify.  I always advise my clients to invoke this privilege.  Then, the only way you be compelled to testify is through a grant of immunity, meaning that you will not be prosecuted not matter what you say so long at it is the truth.  The process of invoking your Fifth Amendment privilege is something that should be done with a lawyer.  Similarly, the process of obtaining immunity is a legal matter that requires the assistance of a criminal attorney. 

What If I Don’t Testify? 

If you don’t have a privilege or a grant of immunity you will be compelled to appear in court and testify.  If you don’t the judge will send you to jail.  The length of time you spend in jail depends on the proceeding where you refused to testify.  For instance, if you refuse to testify before a grand jury you will be put in jail until that grand jury is no longer sitting.  This could be days or even months and even sometimes for more than a year.

Boston Criminal Attorney Can Help

If you get a subpoena call us at 617-263-6800.  We can sit down with you and discuss your rights and obligations.  You will not always have to testify and if testifying puts you at risk for a criminal case we will protect you.