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Refusal to testify Can I plead the 5th?

San Jose, CA |
Filed under: Criminal defense

I had been serve with subpoena and went to the preliminary to testify as a witness. At court I refuse to testify and the judge sentence me 3 days in jail.

The DA called and tried to subpoena me this time for the trial, asking to meet me and give me a document. I tried to avoid him from giving me the document so i dont have to go to court.

Is it a good thing to do to avoid being subpoena?
If I've been subpoena and went to trial as a witness i still refuse to testify can they sentence me again, even with my 5th constitutional right?
" nor shall any person be subject for the same offense to be twice put jeopardy of life or limb"
How can I avoid being sentence again if i refuse to testify again?

*rememner the letter of subpoena has not yet come into my hand.*
This takes place in California

Attorney Answers 1


  1. A subpoena is a court order. If you are PROPERLY SERVED (by someone personally hand delivering you a copy of the subpoena) you are obligated to show up to court. Of course, the DA will likely represent to the Court that you HAVE been properly served, when in fact you have not, and the Judge will not only believe them, but will issue a "body attachemt" (aka an arrest warrant) for you. Only by coming to court and challenging that you were served properly can you avoid that. But then again, once you walk into court, they got you (so the challenge to your being properly served is now moot).

    Can you be compelled to testify? That depends on whether or not you could incriminate yourself by what you say. If you think anything you might say from the witness stand could incriminate you, ask to speak to the Judge before being put on the stand and tell him/her your concern. If the Judge agrees, s/he might either appoint you a lawyer to reveiw your options, grant your request not to testify, or ask the DA if they intend to offer you immunity for your testimony. Either way, it sounds like you need a lawyer to represent your interests. On the other hand, if your testimony is not likely to incriminate you, but you just don't want to testify for whatever reason, yes, you can be compelled to testify. And if you once again refuse, you can be sent to jail again. Double jepordy is not an issue as each act of contempt can be punished separately.

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