BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 5 - Special Trial Problems

    5.04 Handling The Recalcitrant Witness (FRCP 42)

        5.04.1 Handling The Recalcitrant Witness: Unprivileged Refusal To Testify Is Contempt
        5.04.2 Handling The Recalcitrant Witness: Recalcitrant Witness During Trial
        5.04.3 Handling The Recalcitrant Witness: Recalcitrant Witness Before Grand Jury
        5.04.4 Handling The Recalcitrant Witness: Related Sources, Issues And Instructions

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

5.04.1 Handling The Recalcitrant Witness: Unprivileged Refusal To Testify Is Contempt

NCJIC Materials Related To This Issue:

84.1.2.4 Contempt/Obstruction Of Justice For Refusal To Testify: Fear Of Reprisal As Defense Theory

254.1.7.5 Fear Of Reprisal As Defense Theory To Contempt/Refusal To Testify/Obstruction Of Justice

The case law on this subject varies from circuit to circuit. The suggested procedure may be varied to conform with the law of the circuit, the practice of the district, and the preferences of the individual judge.

Refusal by a witness during trial or before a grand jury to answer a proper question, after having been ordered to do so by the court, constitutes contempt of court, and the witness may be subject to both civil and criminal contempt sanctions. See 18 USC 401(3); 28 USC 1826(a).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

When a witness refuses to answer a proper question during trial, consider the following procedure:

1. Excuse the jury.

2. Determine the reason for the refusal. (If the witness claims the Fifth Amendment privilege, see supra section 5.03: Invoking the Fifth Amendment.)

3. If no valid Fifth Amendment claim or other good cause is shown, advise the witness

(a) that the jury will be recalled and that the witness will be ordered to answer the question.

(b) that if the witness persists in refusing to answer, he or she will be cited for civil contempt, and if found guilty, will be confined until he or she answers the question or until the trial ends. Advise the witness that he or she may be fined in addition to being confined.

(c) that if the witness has not answered the question before the trial ends, he or she may then be cited for criminal contempt and, if found guilty, fined or imprisoned; that if the witness is found guilty of criminal contempt at a bench trial, he or she may be imprisoned for as much as six months; and that if a jury finds the witness guilty of criminal contempt, he or she may be imprisoned for as long as the judge in his or her discretion determines. (If the witness is currently serving another sentence, advise the witness that if he or she is confined for civil or criminal contempt, the confinement will be in addition to the sentence already being served.)

4. The jury should then be recalled, the question re-asked, and the witness ordered to answer.

5. If the witness refuses to answer, counsel should be permitted to examine the witness concerning other subject matter about which the witness is willing to testify.

6. After the witness has been examined

(a) direct him or her to remain in court until the next recess; or

(b) excuse the jury so that a time can be set for a hearing to determine if the witness should be found in civil contempt.

[Note: The witness should be given a reasonable time to prepare for the hearing, but this time depends on the need for prompt action. If the trial is expected to be short, set an early hearing so that effective pressure to testify can be exerted on the witness before the trial ends. If the trial is expected to be lengthy, the hearing need not be held so promptly. (If, but only if, there is need for immediate action, the witness can be held in summary criminal contempt under FRCP 42(b) [formerly 42(a)] and committed at once for criminal contempt that occurred in the presence of the court. If committed for criminal contempt, the witness should be committed for a stated period of time but should be advised that the court would reconsider that sentence if the witness decided to testify during the trial. See, e.g., United States v. Wilson, 421 U.S. 309 (1975) (summary contempt under Rule 42(a) appropriate for already imprisoned witnesses who refused to testify despite grant of immunity). [Footnote 1]) Advise the witness that he or she may be represented by an attorney at the hearing on the civil contempt citation and that if the witness cannot afford an attorney, one will be appointed.]

7. If, at the hearing, the witness fails to show good cause why he or she should not be compelled to answer the question that the court ordered the witness to answer, he or she should be found in civil contempt and remanded into the marshal’s custody. Advise the witness that he or she may purge himself or herself of contempt and secure release by answering the question.

8. Direct the marshal to return the witness to the courtroom before court convenes the next day. At that time ask the witness if he or she is prepared to answer the question which was asked of him or her. If the witness is not prepared to answer, again remand the witness into the marshal’s custody. Advise the witness to notify the marshal at once if he or she decides to answer the question, so that the witness can be returned to court and permitted to purge himself or herself of contempt.

9. If the witness has not purged himself or herself of contempt by the time the trial ends, have him or her brought back into court.

10. Pursuant to the procedure outlined in FRCP 42(a) [formerly 42(b)], advise the witness that he or she is being cited for criminal contempt for refusing to obey the court’s order.

11. Set the matter down for hearing at a certain place and time to determine if the witness is guilty of criminal contempt. (Bear in mind that the maximum prison sentence that can be imposed after a bench trial is six months. For a prison sentence of more than six months, there must be a jury trial.)

12. Advise the witness that he or she has a right to be represented by counsel at that hearing and that if the witness cannot afford counsel, the court will appoint an attorney.

13. Release the witness from custody. Bail may be set to ensure the witness’s appearance at the hearing.

FOOTNOTES:

Footnote 1:    Note that Wilson applies only to witnesses during a criminal trial. Witnesses before a grand jury should be given notice and a hearing under Rule 42(b). See Harris v. United States, 382 U.S. 162 (1965).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

5.04.3 Handling The Recalcitrant Witness: Recalcitrant Witness Before Grand Jury

NCJIC Materials Related To This Issue:

11.1.4 Refusal To Testify Before Grand Jury As Contempt/Obstruction Of Justice

11.1.5 Willful Refusal To Give Testimony To Grand Jury Requires Corrupt Motive

When a witness refuses to answer a proper question before a grand jury, consider the following procedure:

1. Have the witness appear before the court out of the presence of the grand jury.

2. Determine the reason for the refusal. (If the witness claims the Fifth Amendment privilege, see supra section 5.03: Invoking the Fifth Amendment.)

3. If no valid Fifth Amendment claim or other good cause is shown, advise the witness

(a) that he or she will be returned to the presence of the grand jury and that the court is ordering the witness to answer the question that he or she had previously refused to answer.

(b) that if the witness persists in refusing, he or she will be cited for civil contempt and, if found guilty, may be confined for the term of the grand jury, including extensions, or for a period of eighteen months, or until the witness answers the question, whichever occurs first. Advise the witness that he or she may be fined in addition to being confined.

(c) that if the witness has not answered the question before the term of the grand jury and its extensions expire, or after eighteen months have passed, whichever occurs first, the witness will be released from custody but may then be cited for criminal contempt, and if found guilty, may be fined or imprisoned; that if the witness is found guilty of criminal contempt at a bench trial, he or she may be imprisoned for as much as six months; and that if a jury finds the witness guilty of criminal contempt, he or she may be imprisoned for as long as the judge in his or her discretion determines. (If the witness is currently serving another sentence, advise him or her that the confinement for criminal contempt would be in addition to the sentence currently being served.)

4. Return the witness to the grand jury room. [Footnote 2]

5. If the witness persists in refusing to answer the question before the grand jury, have him or her brought before the court and at that time advise the witness that he or she is being cited for civil contempt. Do not summarily adjudge the witness to be in contempt pursuant to FRCP 42(b) [formerly 42(a)]. Rather, advise the witness when and where a hearing will be held on the civil contempt citation. Advise the witness that he or she may be represented by counsel at that hearing and that if the witness cannot afford counsel, the court will appoint an attorney.

6. If the evidence warrants, adjudge the witness to be in civil contempt and order him or her committed for the term of the grand jury and its extensions, for eighteen months, or until he or she answers the question, whichever occurs first. 28 USC 1826(a).

7. Advise the witness that he or she will be released as soon as he or she has purged himself or herself of contempt by answering the question and that the witness should advise the marshal at once if he or she decides to answer the question.

8. If the witness has not purged himself or herself of civil contempt before the term of the grand jury and its extensions expire or eighteen months have passed, whichever occurs first, the witness may be cited for criminal contempt pursuant to FRCP 42(a) [formerly 42(b)].

9. If you decide to cite the witness for criminal contempt, advise the witness when and where the hearing will be held to determine if he or she should be punished for criminal contempt. (Bear in mind that the maximum prison sentence that can be imposed after a bench trial is six months. For a prison sentence of more than six months, there must be a jury trial.)

10. Advise the witness that he or she has a right to be represented by counsel at the hearing and that if the witness cannot afford counsel, the court will appoint an attorney.

11. Release the witness from custody. If necessary, set bail to ensure that the witness appears at the hearing on the criminal contempt citation.

FOOTNOTES:

Footnote 2:    This step may be unnecessary if the witness declares during the court proceeding that he or she will persist in refusing and that another opportunity to answer would be pointless.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

5.04.4 Handling The Recalcitrant Witness: Other Sources

NCJIC Materials Related To This Issue:

11.1.4 Refusal To Testify Before Grand Jury As Contempt/Obstruction Of Justice

11.1.5 Willful Refusal To Give Testimony To Grand Jury Requires Corrupt Motive

Other FJC sources

Donald S. Voorhees, Manual on Recurring Problems in Criminal Trials 67–72 (5th ed. 2001)

Manual for Complex Litigation, Fourth 20 (2004)