Criminal Law: Witnesses FAQ

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  • Do I have a duty to cooperate with police?

  • Can a confidential informant be made to testify in court?

  • Is someone with a felony conviction allowed to testify?

  • What happens when a witness admits they lied to the court?

  • Can I go to jail for committing perjury?

  • Can a husband or wife be forced to testify against his or her spouse?

    Q: Do I have a duty to cooperate with police?

    A: No, you don't have to answer any questions or supply names to the authorities. Neither you nor anyone else has a legal obligation to assist the police in solving a crime. While you may feel morally obligated to do so, there is no legal obligation to do so.

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    Q: Can a confidential informant be made to testify in court?

    A: Possibly. A confidential informant or source is a person who assists the police by providing information used to charge or convict another person of a crime. The informant might be acting only out of a sense of duty to help apprehend violators without regard to personal gain. This kind of informant is called a "citizen informant." Other informants provide their information in exchange for money. And still other informants provide their information in exchange for leniency in matters involving their own wrongdoing.

    Prosecutors must disclose the informant's identity if the identify of the informant would be relevant or helpful to the defense, or essential to a fair determination of the case. Common examples of this are where the informant was an eyewitness to, or a participant in, any of the offenses that were charged.

    An informant can be made to testify at either a pretrial hearing or at a trial. For example, if the informant's identity is ordered disclosed because she was the source of information for a search warrant, and was present and witnessed the illegal acts that resulted in the warrant being issued, the informant might have to testify as a witness at a hearing before trial in which the defense argues the warrant was improperly issued.

    If the police or prosecutor don't want to reveal the identify of the informant, either for the informant's safety or so as not to "blow their cover" so the informant can be used in future cases, they'll go to great lengths to avoid having the informant testify. But in the end, it's up to the judge, who'll balance the request not to disclose the informant's identity against the constitutional rights of the accused to present a defense and to have a fair trial.

    Witnesses aren't the property of either party, and both parties ought to have equal access.

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    Q: Is someone with a felony conviction allowed to testify?

    A: A felony conviction doesn't prevent a person from testifying as a witness.

    Depending on how long ago the conviction occurred, the witness could be confronted with it in front of the jury. This is called "impeachment."

    In many states, the judge can instruct the jury that they may consider the witness's prior felony conviction in deciding how much credibility to give the witness's testimony.

    If a witness lies and denies the existence of a prior felony conviction, he could be charged with perjury.

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    Q: What happens when a witness admits they lied to the court?

    A: Not necessarily. In a jury trial, jurors decide the credibility of witnesses, with guidance from the judge in the form of "instructions" provided after all the evidence has been received. The judge instructs the jurors that they're the sole and exclusive judges of the credibility of each of the witnesses called to testify. If they believe that a witness has testified falsely as to any matter, they may decide to believe all of that witness's testimony, only a portion of it or none at all.

    The judge also gives guidance on how jurors should determine the witness's credibility. Jurors are told to carefully judge all of the testimony given, and the circumstances under which each witness has testified. They're advised to consider:

    • Each witness' intelligence, motive to testify, state of mind, and appearance and manner while on the witness stand
    • The witness's ability to observe what he or she was testifying about
    • Whether the witness appears to have an accurate memory or recollection of these matters
    • Any relation a witness may have to either side of a case
    • The manner in which a witness might be affected by a decision one way or another
    • The extent to which, if at all, each witness is either support or contradicted by other evidence in the case

    Each juror should make his or her own judgment or assessment concerning the believability of a witness, and then attach the importance or weight to that testimony that he or she believes it deserves.

    If the witness is an informant, someone who provides evidence against someone else for money, or to escape punishment for his or her own misdeeds or crimes, or for other personal reason or advantage, the jurors are instructed to examine and weigh their testimony with greater care than the testimony of a witness who doesn't have such motivations.

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    Q: Can I go to jail for committing perjury?

    A: Yes. The crime of perjury is the making of a materially false statement under oath with the belief that the statement is false. Under federal law, perjury is punishable by up to five years in jail. The length of any jail term, as with all federal crimes, will be determined according to the United States Sentencing Guidelines. Perjury is also punishable under state laws.

    The purpose of perjury statutes is to keep the process of justice free from contamination of false testimony. Perjury is considered a serious affront to courts and the administration of justice.

    The best-known form of perjury is falsely answering a question while testifying as a witness at a trial. Before you could be found guilty of perjury, the government must prove beyond a reasonable doubt that you knew what the question meant and that you gave knowingly untruthful and misleading answers in response to the questions. In other words, your knowledge and reasonable understanding as to what was meant by the person asking the question is critical to deciding whether you committed perjury. The government has to prove your statement was false at the time you made it. False testimony that is an honest mistake isn't perjury.

    In addition to perjury being a crime in itself, a defendant can receive increased punishment under the United States sentencing guidelines for providing a materially false state to a judge, law enforcement officer, or probation officer.

    If you're going to take an oath to tell the truth, it's important that you do so.

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    Q: Can a husband or wife be forced to testify against his or her spouse?

    A: Some states prohibit a spouse from testifying against the other spouse without consent. Other states have moved to allow the spouse to elect whether or not to testify. The laws prohibiting a spouse from testifying without consent were designed to protect the sanctity of marriage and ensure that spousal communication and actions would be protected as privileged. The law also varies in regards to former spouses as well.

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