Can a Witness Refuse to Testify in a Criminal Case?

It is not unusual for a witness or a victim to threaten to “press charges” against another person.  Likewise, many times a witness or a victim will want to “drop charges” that were filed against a friend, relative, or paramour.  A quick look at the caption of a criminal complaint (Commonwealth v. Smith), however, will reveal that a witness or a victim is not the one pressing charges against a defendant.  Rather, it is the police officers and assistant district attorneys, collectively referred to as the “Commonwealth of Pennsylvania”, that “press” the charges against a defendant.

In the situation where a victim or a witness wants to drop the charges against a loved one, the Commonwealth must agree to have the charges dropped against the defendant.  If the Commonwealth does not want to drop the charges against a particular defendant, the assistant district attorney will then proceed with the prosecution of the case.  No matter if the case is at the preliminary hearing stage or a jury trial, the burden of proof is always on the Commonwealth to present the proper evidence to prosecute the case.  In many cases, such as a simple assault, the primary evidence, and sometimes the only evidence, against the defendant is the testimony of the victim.

Many times, a victim will think that he or she can simply refuse to testify in order to get a case dismissed against a loved one.  While it is true that it is difficult to actually force a victim or a witness to testify, it is important to note that nobody has the right to refuse  to testify.  Moreover, nobody has the right to simply ignore a subpoena to appear in a Pennsylvania court of law.  In fact, there could be serious consequences for a victim or a witness who refuses to testify or fails to show up for court.  Under 42 Pa.C.S.A. 4137, Pennsylvania Magisterial District Judges are given the power to levy fines and impose sentences of imprisonment to persons found to be in contempt of court.  Likewise, Judges of the Pennsylvania Court of Common Pleas are given even broader contempt powers; again, punishment may include fines, incarceration, or both.

I have represented victims and witnesses in cases before Magisterial District Courts, Common Pleas Courts, and Grand Jury Investigations.  I am often able to work out a resolution to the case that is satisfactory both to my client and the other parties involved in the case.  Other times, I have advised victims and witnesses on their 5th Amendment Right Against Self-Incrimination; by assisting my clients in invoking their 5th Amendment Rights, my clients have been excused from testifying against a defendant.  In some instances, I have been able to get my clients “immunity” from future prosecution.

If you are a witness or a victim in a criminal case and have questions or concerns about the prosecution of a case, I will be happy to meet with you to discuss the matter in more detail.

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