By H. Michael Steinberg Colorado Criminal Defense Lawyer
Introduction – The Role Of Witnesses
The role of witness testimony is the bedrock of every criminal trial. If witnesses had the right to refuse to come to court and to testify the criminal justice system would surely collapse.
A great deal of confusion and false information has always existed in our country as to exactly what a witnesses’ rights are when they have been subpoenaed to appear in court to give testimony.
This is particularly true in the area of Domestic Violence cases (see below).
This area of the law is complex and maybe particularly dangerous to the person thinking about refusing to testify in a Colorado criminal case without fully comprehending the risks of this decision.
Refusing to obey a Court Order to appear in court and to give truthful testimony can have very serious consequences.
The article is intended to shed some light for the witness who trying to understand their options and is broken down into the following questions:
1. Has The Witness Been Properly Subpoenaed to Testify?
2. Assuming the Witness is Legally Compelled to Testify or Do They Have a Right to Refuse to Testify? – The Issue of Self Incrimination.
3. Assuming the Witness Has Illegally Refused to Testify – What Sanctions Can the Judge Impose? – Contempt of Court.
4. A Common Colorado Criminal Case for Possible Contempt – The Refusal to Testify in Colorado Domestic Violence Cases.
1. Has The Witness Been Properly Subpoenaed to Testify?
Subpoenas Under Colorado Law
In its simplest form, a subpoena is a Court Order to appear in Court.
As with all Court Orders, not all subpoenas have been properly served and are therefore not enforceable. If a subpoena is not served correctly the witness can refuse to show up to the proceeding. However, this is a very dangerous situation. The witness needs to be 100% certain the subpoena was either not completed correctly or not legally served.
The Rules – Content of the Subpoena
A subpoena, to be validly issued in Colorado, must contain the following information:
1. The issuing court.
2. The case number.
3. The name of the party (and/or attorney) serving the subpoena.
4. The type of proceeding.
5. Details and the command for the witness to appear at a certain time and place.
The Rules – Timing of the Subpoena
A Colorado subpoena must be served no later than 48 hours before the trial or hearing where the witness is ordered to appear. But if the witness is served 24 hours before and not the full 48 hours required, they must come to court at the appropriate date and time to argue their case that they were served outside of the time limits of the law.
The Rules – Proper Service of the Subpoena
Subpoenas must be served by a person 18 or older and not be associated with or a party to the case. Personal service is required for all types of subpoenas.
A person serving a subpoena must serve it “personally” – by hand-delivering it to the person being subpoenaed. The process server cannot simply leave it on the front door or on the windshield of a car.
If the person serving the subpoena hands it the target of the subpoena and that person refuses to accept it – it is still “good service.” If the target of the subpoena rips the subpoena up – it is still good service. If the target of the subpoena lies about their identity and they are the lawful subject of the subpoena – it is still good service.
The Rules – Waiver of Service of a Subpoena
Colorado law provides for a person to “waive” the requirement for personal service of a subpoena.
For example, District Attorneys in Colorado will most often mail their subpoenas to their witnesses with an attached “waiver card.” The subpoena “packet” contains, along with the subpoena, a small card (self-addressed to the District Attorney) that explains to the witness that they should waive personal service by signing and mailing the card back.
If the DA does not receive the “waiver card” back – an investigator is usually sent out to try to personally serve the subpoena.
The witness has the right to demand personal service and to NOT return the subpoena waiver card.
The Rules – Two Kinds of Subpoenas
The law recognizes two kinds of subpoenas:
Type 1 – The first is the most widely known the “subpoena ad testificandum” – this is an order for witness testimony.
Type 2 – The second is called an “SDT” or a “subpoena duces tecum” – an Order to produce documents or other kinds of physical evidence to the Court.
Sometimes these two types of subpoenas are combined.
Whether it is a subpoena to testify or to one to provide documents or other evidence to Court, if the person lawfully subpoenaed fails to obey the subpoena, that person can be held in contempt by the Judge presiding over the case and is then subject to fines, jail, or other kinds of Court orders.
2. Assuming the Witness is Legally Compelled to Testify, Does That Witness Have a Right to Refuse to Testify? – The Issue of Self Incrimination
While a person is compelled to appear in Court by a lawfully drafted and properly served subpoena, there are a few recognized “defenses” to that Court order to testify. The most widely recognized of these defenses is the witness’ Fifth Amendment right against self-incrimination.
The Fifth Amendment Right Against Self-Incrimination – The Primary Exception to Compelled Testimony
Among the most powerful words in the Constitution, are the words protecting a person from being required to “be a witness against himself” in a criminal case in court or as a witness in a criminal investigation.
The 5th Amendment to the United States reads:
“No person […] shall be compelled in any criminal case to be a witness against himself […]”
Article II Section 18 of the Colorado Constitution reads:
“No person shall be compelled to testify against himself in a criminal case […]”
While a Judge may order a witness to appear in a court proceeding and to testify, the 5th Amendment provides protection to that witness in both criminal and civil proceedings where that witness’ testimony might incriminate him or her in the commission of a crime.
A witness with a legitimate claim that their testimony may legitimately “tend to “ incriminate them may elect not to testify. This right is procedurally asserted by invoking their Fifth Amendment rights using words such as:
“I wish to assert my fifth amendment right to remain silent as my testimony may incriminate me.”
The protections of the Fifth Amendment to the United States Constitution, and of article II, section 18, of the Colorado Constitution, can be invoked by anyone whose statements or answers to questions might incriminate that person,
either by directly admitting the commission of illegal acts or by relating information that would furnish a link in the chain of evidence needed to prosecute the witness in the commission of a crime.
The burden of proving that such answers would tend to incriminate the witness and that the privilege was properly invoked lies with the person asserting the privilege.
The controlling principle in this situation is that before a Court can compel a response or punish that witness for “contempt” in the face of a claim of the privilege against self-incrimination, is that the claim must be…
“perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answers cannot possibly have such tendency” (to incriminate).
The Judge, given this situation, then has the task of either accepting the assertion of the privilege or must inquire further to determine if there is a real danger of self-incrimination. A Judge cannot simply dismiss the assertion of privilege without a careful contemplation and analysis and making a record on the issue.
A witness asserting their Fifth Amendment right to remain silent need not reveal “the essence” of the protected testimony, that witness needs only raise the possibility that incrimination could result from an answer.
Just the possibility of imprisonment which arises out of the threat of “contempt proceedings” has been held to trigger another constitutional right, the Sixth Amendment right to counsel. A Judge is required to appoint a lawyer for a witness facing possible sanctions for contempt of court in this situation.
Intentionally Or Accidentally Giving Up – Losing, or Waiving the Fifth Amendment Right to Remain Silent
The right to remain silent, or “right against self-incrimination,” may be waived. This applies to witnesses as well as defendants.
An individual can choose to initiate a conversation and make statements to a government representative such as the police, to a District Attorney, or in open court to the Judge.
A witness has the right to knowingly and intelligently “volunteer” their statement and that statement is then not protected by the right against self-incrimination.
Prohibition Against Calling a Witness Who Plans to Take the 5th before a Criminal Jury
Prosecutors may never call a witness to testify before a jury in a criminal trial when that prosecutor knows that witness will invoke their right against self-incrimination in front of the jury.
If the witness is on the witness stand under these circumstances, the Judge will declare a mistrial, or in the most serious cases, may even impose the possible sanction of dismissal if it is clear, based on the circumstances, that the District Attorney acted intentionally.
The Court will therefore hold a hearing outside the presence of the jury to question the witness about his or her intent to invoke this right if the trial has already commenced.
Other Grounds To Refuse To Testify
There are several other types of witnesses who may be excused from testifying, even if they are subpoenaed. They are not specifically addressed in this short article for reasons of space but consist primarily of the kind of confidentiality from protected secrets that arise from special legal relationships in our society.
These legally cognizable relationships include the following:
- Spousal Privilege – Husband – Wife confidentiality,
- Attorney-Client confidentiality,
- Doctor-Patient confidentiality,
- Therapist-Patient confidentiality, or
- Priest-Penitent confidentiality.
Other Reasons That May Preclude Testifying Include:
- Witnesses who are incompetent to testify.
- Witnesses who have been granted immunity by the State or the Federal Government for their testimony.
3. Assuming the Witness Has Illegally Refused to Testify – What Sanctions Can the Judge Impose – Understanding Contempt of Court
This section makes the assumption that the witness has been properly subpoenaed to testify – and still refuses to testify.
Colorado Contempt of Court refers to an individual’s behavior that defies or opposes the authority of the court. The contempt “power” is an inherent and indispensable power of the Court that exists completely independent of the Court’s other powers.
Contempt can be divided into two categories, civil and criminal, depending on the purpose and the character of the sanctions ( the punishments) sought to be imposed by a Judge.
Civil contempt is remedial – attempting to correct a wrong and not intended to punish the contemner.
While criminal contempt is designed to preserve the power and vindicate the dignity of the Court by publicly punishing the contemner.
The procedures for prosecuting criminal contempt charges are primarily set forth in:
- C.R.C.P. 107(b) (covers contempt committed in the presence of the Court) and
- C.R.C.P. 107(c) (covers contempt committed outside the presence of the Court).
Colorado Rule of Civil Procedure 107(a) defines contempt as:
Disorderly or disruptive behavior, a breach of the peace, boisterous conduct or violent disturbance toward the court, or conduct that unreasonably interrupts the due course of judicial proceedings;
• behavior that obstructs the administration of justice;
• disobedience or resistance by any person to or interference with any lawful writ, process, or order of the court;
• or any other act or omission designated as contempt by the statutes or these rules.
The penalties for being found guilty by a Colorado Judge for contempt are:
• Up to 6 months in jail, for each separate finding of contempt, and
• Other punitive sanctions (see below)
There Are Two Basic Situations in Which Contempt Applies:
I. Violating a Valid Court Order,
II. Punishing a Person Whose Inappropriate Behavior Acts as a Disruptive Manner that Obstructs Justice
I. Violating A Court Order – By Failing to Appear When Properly Subpoenaed
If a witness has been legally subpoenaed to testify in court and either intentionally fails to appear or unlawfully refuses to obey a Court order to testify, the punishments can be severe. Courts also have the inherent and indispensable power to impose a remedial contempt sanction which includes imprisonment to compel the performance of an act within the power of the contemner.
There may be a defense to this situation if a properly-subpoenaed witness who has failed to appear may have an “adequate excuse” for the failure to appear to include such things as terrible weather, a car accident, or issues surrounding a serious illness.
Contempt of Court May Be Classified Into Two Kinds – Direct or Indirect
When a person disobeys court orders “out of the direct sight or hearing of the court,” the Judge may find that person in “indirect contempt.” Not showing up to court as required by a valid subpoena is grounds for and an example of indirect contempt in Colorado.
“Direct contempt” in comparison, is an act of contempt of court that occurs in the presence of the Judge. In the context of a Colorado domestic violence case, for example, the alleged victim who has appeared in court on a subpoena may then refuse to testify against a loved one who has been charged with assaulting the victim thus exposing that witness to being held “in contempt of court.”
After a witness fails to show up to court as required, the Judge may issue a “show cause” citation to that witness. The citation will order him/her to appear in court at a certain date and time and “show cause” as to why he/she did not appear.
Where there is indirect contempt, such as a refusal to appear in court, the alleged contemnor must be given proper notice of the contempt show cause hearing, which notice must describe the acts of contempt that the contemnor is alleged to have committed.
The “show cause” citation must be served on the witness at least 21 days before the show cause hearing. In addition to the citation, the witness must also be served a copy of the relevant motion, affidavit of facts, and order to show cause.
If the witness fails to appear at this “show cause” hearing, the Court will issue a bench warrant. The bench warrant must specify the date and time for the contemnor to appear in court, and it also sets the amount of bail bond on the arrest warrant.
Once a bench warrant is issued, it is placed on the state and national warrant system (NCIC -CCIC) and the witness can be arrested at any time.
As in all criminal proceedings, after posting bail If the witness pays the bond, the accused may have their freedom but must appear at the show cause hearing or jury trial as the case may require.
2. Refusing To Testify When Properly Subpoenaed – Appearing Before the Court
This is the section that has the most important message. ANY witness in a Colorado criminal case who refuses to testify faces the very strong possibility of being found in “contempt of court.” and serving jail time, paying a fine, or both. Essentially refusing to obey ANY Court Order subjects a person to the judicial power called contempt.
A deeper look into this situation includes defining some additional terms of art – Summary Contempt and Remedial contempt as opposed to Punitive Contempt.
“Summary” Contempt of Court is a Form of Direct Contempt that Does Not Require the Setting of Another Hearing
Direct contempt that is clear, egregious, and occurs directly in front of the Judge. It is so obvious that the Judge is authorized to make a finding of “summary contempt.” This includes, for example, a situation in which a witness refuses to testify with not even a scintilla of a legal defense or excuse such as a legally cognizable privilege to excuse the contempt of court.
There is no right to a hearing with this form of summary contempt and the punishment is immediately imposed.
Remedial Contempt – Remedying The Contemptuous Act
The procedures of C.R.C.P. 107 are also applicable to remedial contempt proceedings. C.R.C.P. 107(c), (d).
Remedial contempt Court orders are intended to enforce the original Court order that led to the finding of contempt of court. A Judge will attempt to persuade the reluctant witness to follow the Court order by designing a means to compel the enforcement of the Court’s order.
This remedial contempt court order can include fines, court costs, and jail time until the performance of the original Court order is followed.
Remedial contempt can be “purged” by complying with the Court’s original order. The Court must make findings outlining the sanctions that will be in effect until the contempt is purged and the actions necessary by the contemner that will purge the contempt. That list of sanctions and remedies sought must be specifically outlined in the contempt citation.
If the reluctant witness is subpoenaed to a trial and that trial is ongoing, the witness can be incarcerated during the trial – even to verdict – with the witness never testifying. If that witness never takes the stand, the Judge can sentence that witness to another 6 months of jail for pure punishment reasons – “punitive contempt”- because the need for the witness’s testimony is now moot and no longer needed.
Any additional jail would trigger additional rights for the suspect such as a jury trial on the contempt citation.
A remedial contempt order must be supported by findings of fact establishing that the Court’s order has not been complied with and that the alleged contemner has the present ability to comply. In order to support a contempt order imposed to punish, the court must find non-compliance with the Court’s order and that such conduct is offensive to the authority and dignity of the court.
Should a defendant in the rare “contempt trial” lose the trial having been found guilty of contempt, there is no limit under Colorado law as to the length of the sentence. The sentence is completely open-ended.
While the sentence may be open-ended by law, a conviction for contempt of court for a failure to testify is almost never more than six months in jail and is usually much less.
At the Colorado Contempt Trial – Rights of the Accused
At the first appearance, the person accused of contempt is advised of the following rights:
1. The right to be represented by an attorney,
2. If indigent and a jail sentence is contemplated, the court will appoint counsel
3. That the maximum jail sentence shall not exceed 6 months unless the person had been advised of the right to a jury trial,
4. The right to plead either guilty or not guilty to the charges,
5. The presumption of innocence,
6. The right to require proof of the charge beyond a reasonable doubt,
7. The right to present witnesses and evidence,
8. The right to cross-examine all adverse witnesses,
9. The right to have subpoenas issued to compel attendance of witnesses trial,
10. The right to remain silent,
11. The right to testify at trial, and
12. The right to appeal any adverse decision.
If the accused loses the trial the Court may impose a fine or imprisonment or both if the court expressly finds the person’s conduct was offensive to the authority and dignity of the court.
The person convicted has the right to make a statement in mitigation prior to the imposition of sentence.
II. Punishing a Person Whose Inappropriate Behavior Acts as a Disruptive Manner that Obstructs Justice
Perhaps a much more recognizable form of contempt of court is the version that covers the disorderly or disruptive conduct of a witness or other person in the courtroom who adversely impacts “the administration of justice.”
This form of criminal contempt may include the out of control defendant who attacks a witness or the sheriff in the courtroom, the screaming victim that threatens the Judge for handing down a sentence the victim feels was not just, or the physically violent citizen present to watch a trial who disrupts the proceedings for any myriad of reasons.
As in the remedial contempt power described above, a Colorado judge has broad discretion to fashion the appropriate remedy or punishment in this context. The Judge will first make factual findings of the nature of the contempt and will clearly state whether the sentencing order in light of the contempt is intended to be remedial or punitive.
If the conduct is clearly willful and the penalty contemplates jail, the Judge can, and often will, appoint a prosecutor to pursue these cases. Because jail is a very real possibility in this instance, the alleged “contemner” has a right to a court-appointed lawyer and also has the right to disqualify or compel the recusal of the Judge who has been the alleged target of the contemptuous act and who may be a witness at the contempt trial.
4. A Common Colorado Criminal Case For Contempt – The Refusal to Testify in Colorado Domestic Violence Cases
In the past, I have written several articles on the alleged victims of domestic violence cases and the refusal to testify.
The Rights Of Victims In Colorado Criminal Cases Do Not Include The Right To Drop Charges
NOT Listed among the rights of victims (the Colorado VRA) in Colorado is the right to drop charges or demand that a case be dismissed. Furthermore, a Colorado crime victim has no right to a court-appointed lawyer to represent that victim in court unless the alleged victim has refused to cooperate and is being held in contempt as outlined in the direct, summary, and remedial contempt descriptions above.
Refusing to testify in Colorado domestic violence cases is a major problem for the State’s prosecutors. If the alleged victim fails to obey a subpoena a bench warrant (arrest warrant) can issue and the victim brought before the Court in custody to face indirect contempt of court proceedings.
As outlined above, a continued refusal to testify when the witness is finally before the Court is considered direct contempt and is immediately punishable by the Court.
The refusal of the alleged victim to testify, in almost every case, severely damages the State’s case against the accused and even though the District Attorney may decide to move forward with the case using other evidence, such as recorded prior statements of the alleged victim to the police, the State’s case usually dealt a serious, if not fatal. blow by the loss of the victim’s testimony.
A High-Risk Gambit
The victims of alleged acts of domestic violence in Colorado face a difficult choice if they refuse to testify.
They may feel many things in this difficult situation – to include:
- a very real fear of the impending destruction of important relationships,
- the fear of the disintegration of their family unit,
- a very tangible loss of income and other kinds of financial support,
- embarrassment because of the public nature of the case,
- pure confusion, likely guilt over sharing some or maybe even all of the responsibility for entry of the government into their lives, and
- a desperate need to try to reconcile and preserve any possible future with the accused Defendant.
Whatever may be politically correct in these troubled times, the reality of these issues to the alleged victims of domestic violence cannot be denied. The decision to testify or not testify and face the consequences is the witnesses alone, and the reality of this difficult choice, as outlined in this article, is undeniable.
Finally – The Danger Zone – Attempting To Compel A Victim or Witness Not to Testify or To Testify Falsely
It is important to note, finally, that several felonies have been enacted to protect witnesses in Colorado. It is important to know that it is a felony in Colorado to try intimidate, threaten or otherwise coerce a witness not to testify, to testify falsely, or to otherwise illegally influence a witness not to follow a court order to appear.