How to Avoid Testifying in Court

By Anna Green - Updated June 15, 2017
Witness swearing on bible telling the truth

Generally, you can only avoid testifying in court in a limited set of circumstances, especially when you receive a subpoena. Even if you have legally allowable reasons for not testifying, you must first notify the court and other parties of those reasons. Ignoring a subpoena or simply failing to show up in court without the judge’s approval may lead to you being arrested for failure to appear. The precise procedures for addressing requests to testify vary between states and federal courts, however, so it may be helpful to consult an attorney.

Objecting to a Subpoena

If a party to a case issues you a subpoena asking you to appear in court and testify, in some instances, you may be able to quash the subpoena, or object to it. To formally object to a subpoena asking you to testify, you will generally need to file a “motion to quash” with the court. In this motion, you will need to outline your specific reasons for not wanting to testify, backed up by either your state laws or federal laws, depending on which court is hearing the case. After you file your motion with the court, the judge will review the order and decide whether you have legitimate legal reasons for not wanting to testify. The judge will then enter a written decision approving or denying your motion. If the judge denies your motion or you do not hear from the court prior to the date stated on your subpoena, you will need to appear in court and prepare to testify.

Ethical Issues

One reason you may object to testifying is on ethical grounds. For instance, if you are a mental health professional, you may have codes of ethics or laws governing your profession that require you to preserve confidentiality. If you are objecting to preserve confidentiality or comply with professional ethical guidelines, your motion must specifically reference the law or ethical standard under which you are objecting. Discuss the exact reasons that testifying would compromise your professional obligations.

Hardship Objections

If you have received a request to testify but it would cause significant hardship to do so, the court may agree to quash the subpoena. For example, if you live in California and a court in New York asks you to testify, you may have a valid objection based on distance alone. In this situation, you may be asked to make a sworn statement in your place of residence and submit it to the court. Likewise, if you receive a subpoena close to the court date and do not have enough time to prepare your testimony, the court may quash your subpoena or agree to modify the request to testify in order to give you adequate time to get ready for court.

Self-Incrimination

The Fifth Amendment to the United States Constitution protects individuals against testifying against themselves in court. For example, if the court asks you to testify in a criminal case and you believe the court may ask questions that could implicate you in a crime, you may be able to assert your Fifth Amendment rights on the stand. In such circumstances, it may be best to consult an attorney before appearing in court so that you understand what types of questions qualify as self-incrimination and how to properly assert your Fifth Amendment rights.

About the Author

Anna Green has been published in the "Journal of Counselor Education and Supervision" and has been featured regularly in "Counseling News and Notes," Keys Weekly newspapers, "Travel Host Magazine" and "Travel South." After earning degrees in political science and English, she attended law school, then earned her master's of science in mental health counseling. She is the founder of a nonprofit mental health group and personal coaching service.

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