If I’m the alleged victim and only witness in a DV case, must I testify if I’ve been subpoenaed?

The police report is not the complete truth of what happened that day but now I’m being subpoenaed to testify. Can I plead the 5th if answering the question would incriminate me? Can I answer some questions and invoke my 5th amendment rights on others? Does answering any question regarding the altercation waive my 5th amendment right?

Asked on July 22, 2015 under Criminal Law, Ohio


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Yes you must. A subpoena is a direct order from the court for you to appear at the specified place and time. If you don't go, you can be held in contempt of court. At that point, a warrant for failure to appear can be issued for your arrest, at which point you will face fines and/or jail time.

As for "pleading the 5th" (i.e. invoking your right against self-incrimination), the protection afforded can't be enforced simply because you don't want to testify; it applies only if your testimony would cause you to incriminate yourself in the crime. Additionally, you cannot pick and choose which questions you want to invoke your right for; once you anser a question the privilege is waived.

Note: In DV cases, some spouse's think that they can invoke "spousal privilege" (i.e. the right of one spouse not to have to give testimony against the other). However, most states have amended this privilege to carve out an exception for DV victims. (Not sure if this applies to you since you didn't indicate whether or not you're married but I just wanted to point this out).

If you have further questions, you should directly consult directly with a criminal law attorney in your area.

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