Subpoenaed for a trial
Q: I have been civil-subpoenaed to appear as a witness in a trial. I do not wish to be involved in the matter. Can I decline to testify? If I can, how do I go about doing it? Can you point me to the forms, etc., that would be required to do so?
A: You have not indicated what the subject matter of the testimony that they are seeking. Do you know? Are you a journalist? Are they seeking information you acquired as a journalist?
A person cannot simply decline to testify once they have been subpoenaed. If you show up at trial, there are certain matters one can decline to testify about (e.g. see below re “journalist’s privilege”).
If one wishes to avoid showing up at trial at all, one must file a motion in court to “quash” the subpoena (and have the court rule in your favor). But if you have a legal basis to “quash” the subpoena, or a basis to decline to testify once you are called, one can often negotiate with counsel that subpoenaed you (and possibly opposing counsel) to have them drop the subpoena, or to accept something instead of your testimony, i.e. an affidavit.
As for a legal basis to “quash” a subpoena, or to avoid testifying if you show up at trial, it is not enough to simply “not wish to be involved.” The relevant First Amendment basis on which journalists usually move to “quash” a subpoena in California is Article 1, section 2(b) of the California Constitution and Evidence Code section 1070, which protects journalists from having to testify about “unpublished information” they gathered in connection with their journalistic work.
I reprint the text of the Constitutional section below (Evidence Code section 1070 is essentially the same). I cannot tell you to what extent it may apply to your situation, but if you think it may be applicable please feel free to give us more information about your situation, and we can discuss the provisions in more detail, eg. What kinds of journalists may be able to get protection, how unpublished information is defined. Also, if the case is a criminal case, the protections may be overridden in some circumstances.
On the other hand, if you are not a journalist, there may be other protections that apply (e.g. your Fifth Amendment right against self-incrimination), but such matters are outside the scope of CFAC’s hotline.
Here is the test of Article I, section 2(b) —
(b) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. Nor shall a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. As used in this subdivision, “unpublished information” includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.