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Let's say a witness is called to the stand. One who has been prepped by whichever attorney called them. When asked if they swear to tell the truth they ask for a lawyer. What happens next?

I know there are legal reasons that can excuse one from needing to testify1 and consequences for refusing without good reason. All seem to be legal reasons that a hesitant witness might realize need to be explained by someone qualified in law that has the interests of the witness at heart. If the witness believes no one else in the courtroom is primarily obligated to protect them can they insist on their own lawyer?

candied_orange
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    Did the witness know in advance that the witness would be called? Does the witness have the ability to pay for a lawyer - as the witness probably doesn't have a right to a lawyer at public expense? – ohwilleke Dec 06 '23 at 23:20
  • @ohwilleke it could simply be that the witness didn’t realize their need for counseling until that moment. As for public expense options I expect the judge can do as they like. Would be interesting if I’m wrong. – candied_orange Dec 07 '23 at 01:34
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    "it could simply be that the witness didn’t realize their need for counseling until that moment." A losing argument. "As for public expense options I expect the judge can do as they like." The judge has no budget or authority to provide a witness with a lawyer. – ohwilleke Dec 07 '23 at 01:44
  • A loosing argument why? Witnesses have rights. Seeking remedy is a bad thing? And how do you know what the judge can and can’t do? – candied_orange Dec 07 '23 at 03:19
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    @ohwilleke In what court systems can a witness be called by surprise? In the systems I know of the prosecution and defence are required to give a list of witnesses in advance of the court session. – Jack Aidley Dec 07 '23 at 09:30
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    @JackAidley people have no control over when they realize stuff. Disregarding a reluctant witnesses rights could hamper attempts to get at the truth. – candied_orange Dec 07 '23 at 14:08
  • @candied_orange: I was referring only to ohwileke's question about whether the witness knew before they were called. AFAIA, witnesses always know this - whether or not they understand what it actually means - although there are many differences in systems around the world. – Jack Aidley Dec 07 '23 at 14:39
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    @JackAidley do you understand my point about people realizing things at any time? – candied_orange Dec 07 '23 at 16:00
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    @candied_orange Witnesses have very few rights. Seeking a remedy that delays a trial is a bad thing. I know what judges can and can't do because I went to law school and have been a lawyer for 25 years. People who don't realize things about what will happen at a trial until that moment are routinely penalized procedurally for that as JackAidley notes. As far as realizing things as any time, "tough sh**" Judges usually don't care. – ohwilleke Dec 07 '23 at 16:32
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    @ohwilleke an attitude that can easily result in perjury. You’re only proving how much the witness needs to wait for someone on their side. – candied_orange Dec 07 '23 at 16:36
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    @candied_orange Nobody needs a lawyer to tell the truth. Third-party witnesses are almost never represented by counsel. – ohwilleke Dec 07 '23 at 16:37
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    @ohwilleke nobody needs a lawyer to disregard their own interests. Almost never isn’t never. – candied_orange Dec 07 '23 at 16:41
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    @candied_orange are you trying to understand the law as it is, or the law as you think it should be? If the latter it might be more appropriate for the politics exchange. – Charles E. Grant Dec 07 '23 at 23:46
  • @CharlesE.Grant I haven’t said a word about what should be. Just trying to get better advice for the witness than to hell with your concerns, do what you’re told. – candied_orange Dec 08 '23 at 03:23
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    @ohwilleke Witnesses may have few rights, but in the US (and probably other places) they do have a critically important one: the right against self incrimination. A witness could certainly decline to answer on those grounds, so it doesn't seem out of bounds to ask to consult with a lawyer about it. Though as other comments have mentioned, it seems unlikely a witness would not be aware of the issue by the time they got to the stand. – nasch Dec 08 '23 at 16:45
  • @nasch: If testimony of a witness made clear that someone who happened to be present would likely have relevant information, and neither party opposed the late summoning of that person as a witness, I would think the person should be allowed time to consult an attorney before taking the stand. If someone receives a subpoena well before trial, failure to see an attorney before trial could be construed as a waiver of the right to do so, but a spectator to a trial who would want an attorney before testifying shouldn't be expected to seek on out if they're not expecting to testify. – supercat Dec 08 '23 at 18:54
  • @supercat I'm quite familiar with the issues in the "call a bystander" case, but I'm not going to comment on it as it is something likely to come up in the near future in a case that I am currently litigating, and another that is currently being appealed. – ohwilleke Dec 08 '23 at 19:31
  • @supercat Sounds like a rare case but one that would match the question. – nasch Dec 09 '23 at 17:13

2 Answers2

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The court can order the witness to take the oath and to testify and can hold them in contempt if they continue to refuse. The court can also give the witness an opportunity to discuss with the witness's counsel or make orders that address the witness's reluctance to take an oath or to testify. See e.g. R. v. Wall, 2009 BCSC 1933:

Mr. A was reluctant to be brought into Court. When he arrived, he initially refused to take an oath, but did so when directed by the Court. Mr. A then refused to answer the questions of Crown counsel. He continued to refuse after being directed by the Court.

...

I advised Mr. A that I was going to have to cite him for contempt in the face of the Court, and directed that he retain and instruct counsel and return to court on October 2, 2009 to reconsider his decision after obtaining advice and to give him an opportunity to purge his contempt.

In that case, the witness's concerns were ultimately addressed by ordering a publication ban on his identity. The resolution in other cases would depend on the witness's reasons for reluctance.

Jen
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The witness can be compelled to be truthful in their responses, and demanding a lawyer to tell you that fact before taking the oath is pointless. However, it is not pointless to be concerned over your Fifth Amendment right against self-incrimination (if you have such a right, as you do in the US). The witness is not competent to legally judge whether a particular answer to a posed question is perjurous, nor can they competently determine whether the answer will tend to incriminate them, and a witness cannot rely on either of the counsels acting in the witness's best interest. The witness may have the mistaken belief that the judge will protect their interests: only their own attorney has that duty. However, any right must be officially asserted, for there to be any protection.

user6726
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  • Is “I assert my rights” enough? How can the witness assert these rights when still in need of counsel? – candied_orange Dec 07 '23 at 17:51
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    What does "I assert my rights" mean? Suppose you were arrested, and say "I assert my rights", is that enough? (No, you have to unambiguously demand a lawyer). You should assert your right to not self-incriminate. You should leave off the part in the movies where they say "On advice from counsel". – user6726 Dec 07 '23 at 18:28
  • suppose we stick to this question. What should the witness, in need of a lawyer, on the stand, say? – candied_orange Dec 07 '23 at 18:56
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    The only thing the witness needs to do is communicate that he has a concern over self incrimination, and would like the advice of legal counsel. – user6726 Dec 07 '23 at 20:01
  • @user6726 so no lawyer unless the witness admits the concern is about incrimination? Concerns about perjury accusations, not testifying against a close relation, or whatever other rights they may not understand or things they must avoid don’t count? – candied_orange Dec 07 '23 at 23:28
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    @candied_orange the entire point of the witness having their own lawyer is to help them determine what they can and can't say. But mostly, they have to say everything, excepting only that which would cause self-incrimination. – Stephan Samuel Dec 08 '23 at 13:15
  • @StephanSamuel I just showed that self-incrimination isn’t the only concern. The question is about how to get advice before declaring what the concern is. – candied_orange Dec 08 '23 at 14:27
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    @candied_orange To do that, retain counsel when you're first called to be a witness, prior to taking the stand. If you're on the stand when you realize you need a lawyer, you can ask the judge to allow you to do so, but just realize that they may not be accommodating of your lack of planning, and you may need to do so from inside a jail cell. Often punishment for contempt is not punitive (unless the judge thinks you're deliberately sabotaging the trial) but merely to induce compliance, so chances are you'll get out soon after you're able to go back on the stand. – R.M. Dec 08 '23 at 16:05
  • @R.M. That’s a good answer. To bad it’s a comment. Could be improved if you explained what the witness should (and shouldn’t) say. Especially if the witness doesn’t want to explain why until they talk to council. – candied_orange Dec 08 '23 at 17:03