Everyone understands that being charged with a crime is stressful. Being informed that one of the parties in a criminal case wants to call you as a witness can be stressful as well. Most people have not testified. And some people, even though they have committed no crime, may have questions about their rights or obligations.
Here are a few things to keep in mind.
• If you are being called to testify, you are entitled to have the party who wants to call you serve you with a subpoena. If you are not under subpoena, which is an order to appear in a specified court at a specific date in time, to testify in a specified case, you are under no obligation to appear. In addition, if you do not reside in New Hampshire, serving a New Hampshire subpoena on you while you are in your home state is not valid and enforceable service. A New Hampshire subpoena is only valid if it is served on you while you are physically in New Hampshire. Otherwise, the state has to go through a special process to compel you to testify here – or you have to agree to accept service.
• If you are validly served with a subpoena, you must show up. Otherwise, you are in contempt of court and are subject to being arrested, prosecuted for criminal contempt, or detained as a material witness. This does happen, so it is not worth the risk.
• If you are validly served with a subpoena, you may be able to invoke a privilege against testifying. Under this circumstance, you still have to go to court, but the judge may rule that you do not have to testify. The most common privilege is the privilege against self-incrimination. This means that if you testify truthfully, you may implicate yourself in a crime. You have the constitutional right not to do that. Only a lawyer can advise you as to whether you may be able to invoke this privilege. It is not always obvious that one’s testimony may be somehow incriminating. If you cannot afford a lawyer, the court will provide you with one if you make it clear that you feel you need one. If you can afford a lawyer, it should not cost a great deal of money to get advice, and that advice could save you from being charged with a crime.
• If you testify, there is one rule: tell the truth. If you do not, you can be charged with perjury, which is a felony and a terrible offense to have on a criminal record. You should review any prior statements you made, and think before you answer the question you are asked.