Rhode Island Public Defender

Our mission is to provide high quality representation to our clients, fulfilling the governmental obligation of effective assistance of counsel, fundamental fairness and due process. Our goal is to provide client-centered advice, holistic representation and zealous advocacy. Our commitment is to treat our clients with dignity, compassion and fairness.
Mary S. McElroy, Public Defender

When Do You Have to Testify in Court?

If you are charged with a crime, you do not have to testify. The freedom not to testify is part of your PRIVILEGE AGAINST SELF-INCRIMINATION. The privilege means that you may testify if you want to, but you may not be called as a witness against your will by the prosecution at your own trial. The privilege also means that if you do not testify, the jury will not be able to hold that against you. Juries are not allowed to suppose that because a defendant does not testify, he or she is probably guilty.
If you are a witness to a crime, or if you are called as a witness by either side during a trial, you do not have to appear to testify unless you have been subpoenaed. A SUBPOENA (pronounced sub-pee-nuh) is a court order commanding you to appear in court. You must obey it. It will tell you the date on which you must appear in court. If the court did not issue a subpoena for your testimony, you may refuse to appear. Appearing at a GRAND JURY PROCEEDING is the same as appearing in court; if there was a subpoena, you must obey it; if there was no subpoena, you may refuse to appear if you want to.

Just because you may have to appear in response to a subpoena does not mean that you have to answer questions or testify. You always, in any proceeding (whether it involves a crime or not), have the right to refuse to answer questions where the answer might incriminate you -- make you seem guilty of a crime. If you are afraid that by testifying you will be admitting to a crime, you should tell the judge and/or the prosecutor. You must tell the judge or prosecutor at the beginning of the incriminating questioning. Once you have begun to testify in an incriminating manner without claiming the Fifth Amendment privilege against self-incrimination, you may lose the privilege and the right to refuse to answer.

If you are called as a witness in front of the Grand Jury, you will not be able to have a lawyer present with you. However, you may have a lawyer immediately outside the Grand Jury room and you may consult with him or her at any time you want. Some people who testify at the Grand Jury consult with a lawyer every time a question is asked: before answering any question, these witnesses go outside to tell their lawyers the question and receive advice on how to answer it. This is perfectly proper and is sometimes a wise thing to do. It may make you feel foolish to run outside each time a question is asked, and the prosecutor may get angry at you, but it is a smart thing to do if there is a serious possibility that you will give incriminating testimony. You should not care whether the prosecutor gets mad at you if you have a legitimate reason for wanting your lawyer’s advice. Do not be intimidated into answering questions when you are unsure whether your answer will incriminate you.

If you are subpoenaed to appear before a Grand Jury and you think your testimony may incriminate you, call the Public Defender Office if you are indigent. The Public Defender Office may assign a lawyer to give advice to persons subpoenaed to appear before the Grand Jury.

If you are not formally subpoenaed, you need not give any information about a crime to the police, the prosecution, or to a defense lawyer. You do not even have to give any information as a witness to the court unless you came voluntarily or were subpoenaed. It is a crime to give false information under some circumstances, but it is not a crime to give no information unless you were subpoenaed to testify.
If you believe you have committed a crime, never volunteer to testify anywhere--in court or at the Grand Jury--without consulting with a lawyer.


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