Legal Question in Criminal Law in California

Re: what can you do if you don't want to testify

Sorry, but you have to testify. Subpoenas are legal commands and compliance is mandatory. If you don't show up the court can -- and almost surely will -- issue a bench warrant for your arrest. The local sheriff or marshall will then *immediately* go find you and bring you to the courtroom. If you resist, they will subdue you and bring you to the court in chains. Subpoenas are not to be taken lightly.

If you come to court but refuse to testify, you will be held in contempt and jailed until you change your mind. A judge whose order you defy also should not be taken lightly.

If there is some reason why the subpoena is legally improper you can challenge it in advance on that basis, but I see no reason to think this is the case. It sounds like you and the father aren't married, which means you can't invoke the spousal privilege that ordinarily says one spouse can't be forced to testify against the other. But even if you were married you would still have to testify, since domestic violence cases are an exception to this privilege.

Witnesses who don't want to testify are forced to do so all the time. There is no secret technique you can use to avoid doing this. It looks like you will just have to answer the prosecutor's questions.

One more thing: don't even *think* about testifying falsely once you're on the stand. Perjury could get you into far more trouble than disobeying the subpoena and refusing a judge's order combined.

Re: what can you do if you don't want to testify

I appreciate Steven Mandell's comments. The reason my answer differed from his is not that I never heard of CCP section 1219(b) but rather that I read your question one way and he read it differently.

Section 1219(b) applies only to the victim of domestic violence, not to other witnesses in the case. My impression after I read your question was that your son was the victim and that you were a witness, but as a re-read it I see that it doesn't say who the victim is. My guess is that Mr. Mandell's reading is correct and that mine was mistaken, but there's no way I can be sure based on what you wrote.

The bottom line is this: If you were the victim, Mr. Mandell's answer is correct. If you were only a witness, then my prior answer is correct.

Re: what can you do if you don't want to testify

I've read Ed Hoffman's response, and I have to tell you that he's completely wrong about one thing. He is obviously unaware of Code of Civil Procedure section 1219 (b) which says that if you don't testify, the judge can hold you in contempt but under NO CIRCUMSTANCES can you be jailed. You can be fined money, but you can't go to jail. And the father of your son can pay the fine for you, if he wants to. There is much more to this, but I recommend that you consult with a criminal lawyer in your town and specifically ask about CCP section 1219 (b). Don't be surprised if the lawyer you consult with doesn't know about it, either. It's a little known secret somehow, even tho it's been a law for many years. If you would like to talk to me about it, even tho I'm in LA, please don't hesitate to email me and I'll give you my number to call me. Good luck.