If I have been subpoenaed as a witness in a felony case in which I am the victim of domestic violence, what can happen if I don’t show?

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If I have been subpoenaed as a witness in a felony case in which I am the victim of domestic violence, what can happen if I don’t show?

The case has been reset 9 times. Does the prosecutor have to subpoena me each time the case is reset? My daughter is also on the subpoena and I don’t want her to go to court. She is 11 years old.

Asked on August 24, 2011 Texas

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You can't just not show. A subpoena is a direct order from a court mandating your appearance at a place and time specified.  If you ignore it you can he held in contempt. Accordingly a warrant for FTA (failure to appear) can be issued for your arrest and you can face fines and/or jail time.

While some victims try to refuse to testify by invoking the Fifth Amendment (i.e. the right against self-incrimination), this right can't be invoked simply because the witness does not want to testify. This right only applies if their own testimony would cause them to incriminate themselves. A witness who refuses to testify can also be held in contempt of court and arrested and jailed and/or fined.

Further, in domestic violence cases, some spouse's think that they can invoke "spousal privilege"; that is the right of one spouse not to have to give testimony against the other spouse. However, the majority of states have amended their spousal privilege statute to carve out an exception for domestic violence victims. In other words, in such cases one spouse can be made to testify against the other spouse.

As for your daughter, unfortunately much the same rules apply, although the prosecutor has some discretion as to whether or not to compel her to testify. Additionally, there may be specific state law the provides a minor some protection in such a situation. You should consult directly with a criminal law attorney in our area.


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