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Duty to Testify

Every man owes a duty to attend a trial when commanded and to testify to all material facts within his/her knowledge. This duty rests on all members of the community to aid the courts in the administration of justice.  The administration of justice being a source of benefit to all the members of the community, each is under obligation to aid in furthering it, as a matter of public duty.  Every competent citizen can be summoned by due process of law to appear and render personal service in court.  There is no right of a special compensation for giving testimony.  The witness’s time is claimed by the public as tax paid by him/ her to the system of laws that protects his/ her rights.

The law allows no excuse for withholding evidence relevant to the matters in question before a court.  Testimonial evidence is not protected from disclosure.  A person is liable to punishment for contempt[i] when s/he:

  • without just cause, absents himself from a trial at which s/he has been duly summoned as a witness;
  • refuses to give evidence; or
  • refuses to answer questions which the court rules proper to be answered.

Contempt of court is disobedience to the rules or orders of the court interfering with the due administration of the law. The refusal of a witness to answer a question, which s/he is lawfully required to answer, is considered contempt of court.  When the witness persists in his/her refusal, s/he is punished accordingly[ii].

In much of civil litigation, expert witnesses from various professions and walks of life are called on to educate jurors and judges about matters in which laypersons are not ordinarily knowledgeable.  However, certain persons are protected by a constitutional, common-law, or statutory privilege.  This includes sovereign officials, ministers and other specially privileged officers.  Moreover, privilege is enjoyed against self incrimination.

There is in fact a public obligation to provide evidence.  Every person within the jurisdiction of the government is bound to appear when properly summoned[iii].  The Fifth Amendment does not require that the Government pay for the performance of a public duty it is already owed[iv].

In order to protect the public interest and the free flow of information, the news media should have the benefit of a substantial privilege not to reveal sources of information or to disclose unpublished information.  To this end, the freedom of press requires protection of the confidential relationship between the news gatherer and the source of information.  However, the First Amendment does not protect a reporter from testifying about events personally witnessed.  A reporter cannot use qualified privilege to refuse to testify as an eyewitness[v].  Every citizen has a duty to appear and testify when subpoenaed as a witness in a criminal case.  People in news media are no exception.  The inconvenience suffered by reporters and news photographers who are called to testify regarding criminal activity is no more compelling than the inconvenience suffered by any other citizen who must disrupt his/ her daily activities to comply with a subpoena[vi].

The U. S. possesses the power inherent in its sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him/ her in case of refusal.  “Whenever the attendance at the trial of a criminal action of a witness abroad, who is a citizen of the U.S. or domiciled therein, is desired by the Attorney General, or any assistant or acting district attorney, the judge of the court in which the action is pending can order a subpoena to issue, to be addressed to a consul of the U. S. and to be served by him/ her personally upon the witness with a tender of traveling expenses”[vii].  The right to ingress and egress is a privilege of national citizenship protected by the Fourteenth Amendment.  There are restrictions on the exercise of the claimed constitutional right.  One such restriction derives from the obligation to give testimony[viii].

The jurisdiction of the U.S. over its absent citizen, so far as the binding effect of its legislation is concerned, is a jurisdiction in personam.  A U.S. citizen is personally bound to take notice of the laws that are applicable to him/ her and to obey them.  The absent witness as a citizen of the U. S. is chargeable with knowledge of the law under which his/ her attendance as a witness could be required[ix].

However, a witness cannot be compelled to disclose a matter tending to incriminate him or her.  One who is accused of a crime has a privilege not to be compelled to give self-incriminating testimony.

[i] Ex parte Dement, 53 Ala. 389, 390 (Ala. 1875).

[ii] Dixon v. People, 168 Ill. 179, 189 (Ill. 1897).

[iii] United States v. Bryan, 339 U.S. 323, 331 (U.S. 1950).

[iv] USCS Const. Amend. 5.

[v] United States v. Steelhammer, 561 F.2d 539, 540 (4th Cir. W. Va. 1977).

[vi] State v. Turner, 550 N.W.2d 622, 629 (Minn. 1996).

[vii] 28 USCS § 711.

[viii] New york v. O’neill, 359 U.S. 1, 7 (U.S. 1959).

[ix] Blackmer v. United States, 284 U.S. 421, 438 (U.S. 1932).

Inside Duty to Testify