What to do when witnesses don't want to testify

If you deal with enough scammers and telemarketers, you will run into witnesses who refuse to testify.

The correct thing to do is use the power of the court to compel them to answer. Lets start with ninth circuit case Barnett v. Norman, 782 F.3d 417, 420 (9th Cir. 2015).

Prisoner Barnett and two prison guards fought violently in his cell. Barnett says that the guards attacked him with a flashlight and a baton without provocation and followed up with pepper spray and more baton strikes after his submission. The guards say that Barnett initiated the attack on one guard and the other came to his colleague's aid, and that both guards were injured. The parties agree that Barnett suffered physical injuries.

Barnett believed three fellow prisoners would support his story at trial, and obtained a court order to compel their attendance at court. All three attended, professed to not know anything or didn't remember anything, and the judge excused the witnesses. Barnett appealed.

Both sides in a trial have the right to call witnesses, and the power to compel witness testimony is essential to our system of justice. See Blair v. United States, 250 U.S. 273, 281–82, 39 S.Ct. 468, 63 L.Ed. 979 (1919) (“[T]he giving of testimony and the attendance upon court or grand jury in order to testify are public duties ... necessary to the administration of justice....”). No one, not even the President of the United States, can automatically avoid testifying in a deposition, before a grand jury, or in a courtroom. See Clinton v. Jones, 520 U.S. 681, 704–05, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) ; United States v. Fromme, 405 F.Supp. 578, 582–83 (E.D.Cal.1975).

Barnett stands for the proposition that what a judge cannot do is to allow a witness to refuse to testify because he would prefer not to answer a question. The public's interest in full disclosure and the fair administration of justice overrides concerns that testimony might be inconvenient, burdensome, or harmful to a witness's social or economic status.

a “subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase.” United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 94 L.Ed. 884 (1950). Witnesses cannot refuse to answer questions merely because they choose not to—there is no opt-out box on a subpoena. To hold otherwise would make “the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures,”. Thus, a trial judge faced with uncooperative witnesses cannot endorse recalcitrance by saying, “there's not much I can do,” “I can't compel him to answer if he's not going to answer,” and “I don't know what to say.”

Barnett gives a toolbox to a court to obtain testimony:

• She can direct the witness to answer the question and tell him about the consequences of not doing so. See, e.g., United States v. Doe, 125 F.3d 1249, 1252 (9th Cir.1997) ; United States v. Powers, 629 F.2d 619, 621–22 (9th Cir.1980).

• She can ask the questions herself. Fed.R.Evid. 614(b) ; see also, e.g., United States v. Flores, 628 F.2d 521, 524 & n. 3 (9th Cir.1980).

• She can take a recess and inquire outside the presence of the jury whether something is impeding truthful testimony. See, e.g., Kronick v. United States, 343 F.2d 436, 439 (9th Cir.1965) ; Flores, 628 F.2d at 524–25 ; see also Harris v. United States, 382 U.S. 162, 166, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965) (“What appears to be a brazen refusal to cooperate with the grand jury may indeed be a case of frightened silence. Refusal to answer may be due to fear—fear of reprisals on the witness or his family. Other extenuating circumstances may be present.”).

The Barnett court noted that these are everyday situations and solutions, and gave a trial judge discretion over the particular methods employed, but recognized that before we can validate that discretionary determination, the trial court must actually exercise its discretion. Doing nothing is an abuse of discretion.

Here, the magistrate judge abused her discretion as a matter of law when she permitted the prisoners to opt out of testifying . . . When confronted with witnesses who refuse to testify simply because they choose not to, a judge has a wide array of tools—from the pillow of additional questions to the sledgehammer of contempt—to ensure that witnesses provide truthful testimony.

If you are reading this post, you might be researching for a motion to compel. You might look at Johnson v. Perez, 12 CV 9225, 2 (N.D. Ill. May. 22, 2024) for some ideas and caselaw:

Federal Rule of Civil Procedure 30 provides parties “a general right to compel any person to appear at a deposition, through issuance of a subpoena if necessary.” CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 993 (7th Cir. 2002). The court's power to compel witness testimony is an essential function of the judicial system. See Shillitani v. United States, 384 U.S. 364, 370 (1966); United States v. Bryan, 339 U.S. 323, 331 (1950). And the court has broad discretion in exercising its authority to secure the attendance and testimony of a witness. See Hunt v. DaVita, Inc., 680 F.3d 775, 780 (7th Cir. 2012) (“District courts have broad discretion in supervising discovery, including deciding whether and how to sanction such misconduct[.]”). To compel a witness's attendance or testimony, the court may direct the witness to answer nonprivileged questions, explain to the witness possible consequences for not answering, ask the questions directly, or take a recess to inquire whether something is impeding the testimony. Barnett v. Norman, 782 F.3d 417, 423 (9th Cir. 2015).

If witnesses don't want to testify, the burden is one you to make the trial court address the situation using some or all of the tools above, or motivate a difficult witness with the threat of jail time. In Ford v. Glutality, 2025 WL 52850 (W.D. MO Jan. 8, 2024), the plaintiff served a subpoena on a witness Mr. Weiss, who failed to serve any objections to the subpoena. That waived any potential objections to the subpoena. Insurance Corp. of Hannover v. Vantage Prop. Mgmt., L.L.C., No. 04-1012-CV-W-SOW, 2 (W.D. Mo. Apr. 26, 2006)

Ford v Glutality.pdf

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Ford's subpoena sought

records regarding Mr. Weiss’s communications with a person named Chris Rosetti and his various companies. Mr. Rosetti and his various companies purportedly provided the leads to Glutality that were called by Glutality giving rise to the Telephone Consumer Protection Act (“TCPA”) violations at issue in this case. Mr. Weiss testified at his deposition that he had communications with Mr. Rosetti and that he did not recall if he had e-mail communications with Mr. Rosetti. Such communications are relevant and proportional to the needs of the case.

The Ford court ordered Mr. Weiss to respond to the subpoena under threat of "sanctions, including an award of attorneys’ fees and incarceration".

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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