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The Right to Refuse Testimony | Can a Witness Refuse to Testify?
In criminal proceedings, if the court or prosecutor fails to fulfill the obligation to inform the witness of their right to refuse testimony under Article 186, Paragraph 2 of the Code of Criminal Procedure, is the testimony obtained from the witness admissible as evidence against the defendant?
Obligations and Rights of a Witness to Testify
The core of criminal proceedings lies in discovering the truth, which often relies on various pieces of evidence. Besides documentary and physical evidence, it also relies on the testimony of eyewitnesses. Witnesses, in addition to having the legal obligation to testify, must swear to the truthfulness of their statements. However, to avoid the witness falling into the dilemma of self-incrimination and to prevent the defendant from being falsely accused by a distressed witness, the law grants the witness the right to refuse to testify. According to Article 186, Paragraph 2, Article 181, and Article 180, Paragraph 1 of the Code of Criminal Procedure, a witness may refuse to testify under certain conditions, such as when it may lead to criminal prosecution or punishment of themselves or their relatives.
Legal Provisions Table
| Article | Content |
| Article 186, Paragraph 2 | If a witness is in a situation described in Article 181, they should be informed of their right to refuse testimony. |
| Article 181 | A witness may refuse to testify if the testimony may lead to criminal prosecution or punishment of themselves or a related person as described in Article 180, Paragraph 1. |
| Article 180, Paragraph 1 | A witness may refuse to testify if: 1. They are or were the spouse, direct blood relative, collateral blood relative within the third degree, or in-law within the second degree of the defendant or private prosecutor. 2. They are engaged to the defendant or private prosecutor. 3. They are or were the legal representative of the defendant or private prosecutor, or vice versa. |
| Article 180, Paragraph 2 | A witness may not refuse to testify if the relationship described in Paragraph 1 pertains to one or more co-defendants or private prosecutors, and the testimony is solely about other co-defendants or private prosecutors. |
Practical Disputes and Precedents
In criminal proceedings aimed at discovering the truth, prosecuting crimes, and ensuring the presumption of innocence for the defendant, the focus often lies on the defendant, neglecting the protection of witnesses. If the court or prosecutor fails to fulfill the obligation to inform the witness of their right to refuse testimony under Article 186, Paragraph 2, the admissibility of the obtained testimony as evidence against the defendant has been a contentious issue. Fortunately, the Fourth Division of the Supreme Court has reached a consensus on this matter after consulting with other criminal divisions of the Supreme Court.
The Role of the Court and Evidence Exclusion
The court should maintain judicial fairness during the trial process, and using illegally obtained evidence is tantamount to endorsing illegal actions. Therefore, even if the defendant is not the direct victim of the government's illegal actions, they should be allowed to request the exclusion of evidence to prevent future illegal evidence collection.
Legal Procedures
If the court or prosecutor violates the obligation to inform the witness, requiring them to swear and punishing them for perjury without informing them of their right to refuse testimony, this procedure is flawed. The court should apply the principle of discretionary judgment under Article 158-4 of the Code of Criminal Procedure to evaluate the admissibility of the testimony, rather than treating it purely as a matter of evidentiary weight.
The right to refuse testimony is a crucial mechanism for protecting witness rights in criminal proceedings. Courts and prosecutors should handle the right of witnesses to refuse testimony with caution to ensure procedural fairness and the validity of evidence. This not only helps protect witnesses but also upholds judicial fairness, thereby increasing public trust in the judicial system.
If you have more questions about witness protection or the right to refuse testimony, please contact our team of legal experts for professional legal advice and support. Take action now to ensure your rights are protected.
Reference: Criminal Procedure Law
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