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Ninth Circuit: Witnesses Cannot Refuse to Testify at Civil Trial

On March 31, 2015, the Ninth Circuit Court of Appeals held that a magistrate judge abused her discretion by allowing prisoners to opt out of testifying at a civil rights trial alleging guards had used excessive force on another prisoner.

The ruling came in a lawsuit filed by California prisoner Troas V. Barnett, who claimed that two guards entered his cell and “attacked him with a flashlight and baton without provocation and followed up with pepper spray and more baton strikes after his submission.” The guards, on the other hand, contended that Barnett initiated an attack on one guard and the other came to his coworker’s aid. Barnett and both guards suffered injuries.

Prior to trial, Barnett filed – and the guards contested – motions for the production of prisoners Phillip Conti, Darrell King and Sven Johnson as witnesses. The magistrate judge, whom the parties agreed would preside over the trial, granted Barnett’s motions, finding each prisoner was a “necessary and material witness.”

In his opening statement, Barnett told the jury that they would hear from the three witnesses. When he called them, however, each either said they “had nothing to add to this matter” or chose “not to be a party” to the trial. When Barnett asked the magistrate to counsel the witnesses to testify, she responded, “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.”

The jury found in favor of the guards and Barnett appealed. The Ninth Circuit held that a trial judge faced with an uncooperative witness cannot endorse recalcitrance. “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,” the appellate court wrote.

The “demand for everyman’s evidence” has important exceptions – including the Fifth Amendment, spousal privilege and attorney-client privilege – that “are not lightly created nor expansively construed, for they are in derogation of the search for truth.” While trial judges have discretion with respect to the presentation of witnesses, “a judge cannot [ ] allow a witness to refuse to testify because he would prefer not to answer a question.”

To encourage a witness’ testimony, a judge can direct the witness to answer a question and inform him about the consequences for failing to do so, or the judge can inquire outside the jury’s presence to see whether something is impeding the witness’ testimony. When that fails, a judge has the “sledgehammer” of contempt to force compliance.

“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,” the Court of Appeals noted.

Of course, there may be cases where a judge decides not to sanction a witness for refusing to testify, “But before we can validate that discretionary determination, the trial court must actually exercise its discretion.”

In Barnett’s case, the error was not harmless because “everything in this case turned on which version of events was believed.” At least one of the witnesses may have been compelled to testify when faced with the federal judge’s nudging, cajoling or threat of sanctions. Because no such effort was made by the magistrate, Barnett was prejudiced and a new trial was ordered. See: Barnett v. Norman, 782 F.3d 417 (9th Cir. 2015).

Following remand, on December 18, 2015 the district court granted Barnett’s request for several incarcerated witnesses to testify at the retrial, but specified that they would provide testimony via video conference rather than in person. Another trial was scheduled for February 23, 2016, but the case settled in January. Barnett, who litigated most of the lawsuit pro se, had appointed counsel on appeal. 

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Related legal case

Barnett v. Norman