5.12Failure of Witness to Appear or Testify

Several statutes and the Michigan Court Rules address finding witnesses who either fail to appear or fail to testify in contempt of court.

A.Failure to Appear or Testify When Subpoenaed

1.Statutory Authority

“The supreme court, circuit court, and all other courts of record, have power to punish by fine or imprisonment,^[1] or both, persons guilty of any neglect or violation of duty or misconduct in all of the following cases:

* * *

(i) All persons who, having been subpoenaed to appear before or attend, refuse or neglect to obey the subpoena, to attend, to be sworn, or when sworn, to answer any legal and proper interrogatory in any of the following circumstances:

(i) As a witness in any court in this state.

(ii) Any officer of a court of record who is empowered to receive evidence.^[2]

(iii) Any commissioner appointed by any court of record to take testimony.

(iv) Any referees or auditors appointed according to the law to hear any cause or matter.

(v) Any notary public or other person before whom any affidavit or deposition is to be taken.” MCL 600.1701(i).

2.Statutory Penalty

The penalty for a witness’s refusal to testify under the Revised Judicature Act is set forth by MCL 600.1725:

“If any witness attending pursuant to a subpoena, or brought before any court, judge, officer, commissioner, or before any person before whom depositions may be taken, refuses without reasonable cause

(1) to be examined, or

(2) to answer any legal and pertinent question, or

(3) to subscribe his deposition after it has been reduced to writing, the officer issuing the subpoena shall commit him, by warrant, to the common jail of the county in which he resides. He shall remain there until he submits to be examined, or to answer, or to subscribe his deposition, as the case may be, or until he is discharged according to law.”

Note that MCL 600.1715(1) provides that the general penalty provisions for contempt of court contained in MCL 600.1715 apply “except as otherwise provided by law.” MCL 600.1725 mandates coercive civil incarceration for a witness’s refusal to testify when required to do so, whereas, the general provision in MCL 600.1715(1) makes incarceration discretionary for a witness’s failure to testify.

Further, the defendant may be ordered to pay certain expenses upon “[a] finding of guilt for criminal contempt for failing to appear in court as ordered by the court.” MCL 769.1f(1)(l). Specifically, “in addition to any other penalty authorized by law, the court may order the person convicted to reimburse the state or a local unit of government for expenses incurred in relation to that incident including, but not limited to, expenses for an emergency response and expenses for prosecuting the person[.]” MCL 769.1f(1).³

3.Michigan Court Rule Authority

Certain misconduct by witnesses constitutes contempt:

“(1) If a person fails to comply with a subpoena served in accordance with this rule . . . , the failure may be considered a contempt of court by the court in which the action is pending.

(2) If a person refuses to be sworn or to testify regarding a matter not privileged after being ordered to do so by the court, the refusal may be considered a contempt of court.” MCR 2.506(E).

4.Excusing the Jury

To avoid the appearance of partiality, the court should excuse the jury before a witness is cited for contempt of court. People v Williams, 162 Mich App 542, 547 (1987).

B.Failure to Appear or Testify When Summoned by a Judge

1.Statutory Authority

“Any witness neglecting or refusing to appear in response to such summons or to answer any questions which such judge may require as material to such inquiry, shall be deemed guilty of a contempt[.]” MCL 767.5.

2.Statutory Penalty

If, after a public hearing in open court, a person is convicted of contempt under MCL 767.5, the person shall:

•be fined not exceeding $1,000;

•be imprisoned not exceeding 1 year; or

•both. MCL 767.5.

Purging. After sentencing, the witness can offer to appear before the judge to purge herself or himself. MCL 767.5. If the witness offers to appear, “the judge shall cause such witness to be brought before him [or her] and, after examination of such witness, the judge may in his [or her] discretion commute or suspend the further execution of such sentence.” Id. But see People v Joseph, 384 Mich 24, 33 (1970), stating that “[t]he proviso in [MCL 767.5] in regard to [the] contemnor appearing before the judge to purge himself [or herself], and the discretion of the judge to commute or suspend further execution of such sentence, is, so far as criminal contempt is concerned, an unconstitutional delegation by the legislature to the judicial branch of government of a power which exists only in the executive.” The Joseph Court found that the unconstitutional proviso “is severable from the remainder of the statute, and the remainder is in itself a complete and enforceable act.” Id.

3.Caselaw

“Any witness who neglects or refuses to appear in response to a summons or to answer any questions posed by the one-person grand juror may be found in contempt of court.” People v Farquharson, 274 Mich App 268, 274-275 (2007), citing MCL 767.5.

C.Failure to Appear or Testify Before a Grand Jury

1.Statutory Authority

“Any witness who neglects or refuses to appear or testify or both in response to a summons of the grand jury or to answer any questions before the grand jury concerning any matter or thing of which the witness has knowledge concerning matters before the grand jury after service of a true copy of an order granting the witness immunity as to such matters shall be guilty of a contempt[.]” MCL 767.19c.

2.Statutory Penalty

If, after a public hearing in open court, a person is convicted of contempt under MCL 767.19c, the person shall:

•be fined not exceeding $10,000;

•be imprisoned not exceeding 1 year; or

•both. MCL 767.19c.

Purging. The sentence for contempt shall be commuted “upon a finding that the witness has purged [herself or] himself.” MCL 767.19c.

If the witness appears to purge herself or himself, “the court shall order the recalling of the grand jury to afford such opportunity, and after appearance of the witness before the grand jury upon a transcript of the testimony there and then given, the witness shall be brought before the court and after examination, the court shall determine whether the witness has purged [herself or] himself of the contempt[.]” MCL 767.19c.

But see People v Joseph, 384 Mich 24, 33 (1970), stating that “[t]he proviso in [MCL 767.5, the “one-man grand jury” contempt statute that contains a substantially similar “purging” provision as MCL 767.19c,] in regard to [the] contemnor appearing before the judge to purge himself [or herself], and the discretion of the judge to commute or suspend further execution of such sentence, is, so far as criminal contempt is concerned, an unconstitutional delegation by the legislature to the judicial branch of government of a power which exists only in the executive.” The Joseph Court found that the unconstitutional proviso “is severable from the remainder of the statute, and the remainder is in itself a complete and enforceable act.” Id. Note that the Joseph Court did not address MCL 767.19c, but rather a substantially similar provision of a separate statute, and later Michigan Supreme Court cases addressed MCL 767.19c but did not address the constitutionality of the purging proviso. See, e.g., People v Johnson, 407 Mich 134 (1979); People v Walker (Walker I), 393 Mich 333 (1975). Accordingly, it is unclear whether the Joseph holding applies to MCL 767.19c.

3.Contempt Citations Under MCL 767.19c are Civil

All contempts under MCL 767.19c are civil. Spalter v Wayne Circuit Judge, 35 Mich App 156, 165 (1971).

Construing MCL 767.7a⁴ and MCL 767.19c together, the Court explained:

“after the expiration of the term of service of the grand jurors the judge who summoned the citizens’ grand jury may, in his discretion, recall the grand jurors at any time to conclude business commenced during their term of service; however, a witness who has been convicted of contempt for neglecting or refusing to appear or testify before a grand jury who thereafter appears before the court expressing a desire to purge himself of the contempt has the absolute right at any time to have the court order the recalling of the grand jury so as to afford him an opportunity to purge himself. If, after the grand jury is recalled, the witness appears before the grand jury and testifies, he has an absolute right to have his sentence commuted upon a finding by the court that he has in fact purged himself.” Spalter, 35 Mich App at 163-164. But see People v Joseph, 384 Mich 24, 33 (1970), discussed in Section 5.12(C)(2).

Thus, all contempt citations under MCL 767.19c are civil because the witness “carries in his pocket the keys to his cell.” Spalter, 35 Mich App at 165 (quotation marks omitted).⁵ 

4.Sanctions for Repeated Refusal to Testify

A contemnor may not be imprisoned for two terms totaling a sentence of more than one year for failure to answer the same or similar questions involving the same subject matter before the same grand jury under MCL 767.19c. People v Walker (Walker I), 393 Mich 333, 335, 338 (1975) (noting that the refusal to answer questions occurred once before the “regular” session of the grand jury and once in a session where the same grand jury was recalled). MCL 767.19c does not reference “the chronology of the questioning or whether the questions were asked on one, two, or three different occasions; the reference in the statute is entirely to the focus of the questioning, i.e. was it about a given ‘matter or thing.’ If so, it is covered by the statutory penalties.” Walker I, 393 Mich at 339. Accordingly, the Court held that the penalties provided for in MCL 767.19c are maximum penalties for “contempt arising out of neglect or refusal to answer questions involving the same or similar subject matter before a grand jury lawfully sitting either in ‘regular’ or recalled session with such subject matter properly before it.” Walker I, 393 Mich at 340.

However, if a person refuses to testify about the same subject matter before two different grand juries, the person commits separate instances of contempt and may be punished for each instance. People v Walker (Walker II), 78 Mich App 402, 406-407 (1977) (involving the same defendant as in Walker I, 393 Mich 333, but after a new grand jury was convened to investigate the same subject matter and the defendant was called before the new grand jury and again refused to testify). The Court of Appeals upheld the respondent’s second sentence for contempt even though when it was added to the first sentence it exceeded the statutory maximum of one year. Walker II, 78 Mich App at 404, 406-407. See also Walker I, 393 Mich at 340 n 3 (contrasting its decision with In re Colacasides, 379 Mich 69 (1967), “where two entirely different one-man grand juries were exploring similar subject matter[;] we express no opinion today on the applicability of today’s holding of the Court to such a situation[]”).

D.Direct and Indirect Contempt⁶

1.Refusal to Testify — Direct Contempt

Because a witness’s refusal to testify is a contempt committed in the immediate view and presence of the court, the court may punish it summarily. See MCL 600.1711(1).

2.Failure to Appear — Indirect Contempt

Because the court must rely on the testimony of others to determine the reason for the witness’s failure to appear, and because immediate action is not necessary to preserve the court’s authority, the court may not summarily punish a witness’s failure to appear. In re Contempt of Robertson, 209 Mich App 433, 440-441 (1995).

E.Fifth Amendment Privilege Against Self-Incrimination

“No person shall be compelled in any criminal case to be a witness against himself [or herself.]” Const 1963, art 1, § 17. See also US Const, Am V. “This prohibition not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” People v Steanhouse, 313 Mich App 1, 17 (2015) (quotation marks and citations omitted). The privilege against self-incrimination extends to witnesses in addition to the accused. Id. The Fifth Amendment “grants a privilege to remain silent without risking contempt[.]” United States v Wong, 431 US 174, 178 (1977) (noting that it does not permit a person to commit perjury).

When a trial court is confronted with a potential witness who plans to assert the testimonial privilege, the prosecutor should inform the court out of the presence of the witness and jury of the possible need for the witness to be informed of his or her Fifth Amendment rights. Steanhouse, 313 Mich App at 18. “The ‘trial court must determine whether the witness understands the privilege and must provide an adequate explanation if the witness does not.’” Id., quoting People v Paasche, 207 Mich App 698, 709-710 (1994). The trial court “must hold an evidentiary hearing to determine the validity of the claim of privilege, and if the assertion is valid “‘the inquiry ends and the witness is excused.’” Steanhouse, 313 Mich App at 18, quoting Paasche, 207 Mich App at 709. “‘[I]f the assertion of the [Fifth Amendment] privilege [against self-incrimination] is not legitimate in the opinion of the trial judge, the court must then consider methods to induce the witness to testify, such as contempt and other proceedings.” Steanhouse, 313 Mich App at 18, quoting Paasche, 207 Mich App at 709. See also In re Selik, 311 Mich 713, 716 (1945) (noting that if the witness invoked his right against self-incrimination, “it would then have been incumbent on the judge conducting the grand jury to decide whether the answer might tend to incriminate the witness, and, if so, either to grant the witness immunity from prosecution or uphold his refusal to answer[]”); In re Bommarito, 270 Mich 455, 458-459 (1935) (holding that where it is apparent the answer could not injure a witness, the court should compel the witness to answer and may summarily punish the witness for a refusal to answer).

“The due administration of the law does not permit [the witness] to arbitrarily hide behind a fancied or intangible danger . . . [.]” In re Moser, 138 Mich 302, 306 (1904). “The tendency to incriminate must be a reasonable one; an answer may not be withheld because it might possibly under some conceivable circumstances form part of a crime.” In re Schnitzer, 295 Mich 736, 740 (1940).

For a general discussion of properly invoking the privilege against self-incrimination, see People v Joseph, 384 Mich 24, 29-32 (1970) (in the context of giving testimony before a grand jury).

F.Evasive Answers

A person called to testify may be found in contempt for answering questions evasively. In re Slattery, 310 Mich 458, 476, 478 (1945). Where the petitioner, who was called to testify before the court investigating a possible crime, refused to answer “yes” or “no,” and repeatedly indicated that he did not remember whether a certain conversation occurred, the trial court properly held him in contempt because the answers given by the petitioner established “beyond question the intention upon his part to refrain from testifying to facts obviously within his knowledge.” Id. at 469-472. The Court explained that “[t]he contempt consists in the giving of false or evasive answers and evading replies to questions propounded by the subterfuge of the answers, ‘I don't remember,’ or ‘recall,’ or ‘it did not happen in my memory.’ Such answers might be truthful in regard to trivial events and particularly so if they happened some time in the past, but it does not seem reasonable that a man of petitioner’s position, who devoted several months of his time to lobbying in regard to a certain bill and thus trying to win over legislators to his point of view, could not possibly remember whether or not ‘A’ had approached him and stated he would change his vote for a consideration. Id. at 472-473. Further, the fact that the petitioner raised concerns about self-incrimination in response to the trial court’s urging him to answer “yes” or “no” after previously claiming not to remember indicated “that he did remember but he feared that the answer might incriminate him.” Id. at 473 (noting that the type of question the petitioner was asked was not the type that would “ordinarily involve self-incrimination[]” and that “[t]he witness himself is not the sole arbiter of the incriminating nature of the testimony he is asked to give”).