If you’re the victim of a crime, you don’t automatically have to go to trial. Whether a victim has to go to trial depends on one thing: whether the prosecutor decides your testimony is needed and has a subpoena served on you. If that happens, you’re legally required to appear. If it doesn’t, you have no obligation to show up. The choice belongs to the prosecutor, not to you and not to the defendant.
Why the Decision Isn’t Yours
A criminal case is brought by the government, not by the person who was harmed. The crime is treated as an offense against the public, so a government prosecutor files and manages the charges on behalf of society. Only government prosecutors have the authority to bring criminal charges.1United States District Court. How Do I Bring Criminal Charges Against Someone Your role in the case is that of a witness for the prosecution.
That has two consequences people often find surprising. You cannot drop the charges. And you cannot force the case to go to trial either. The prosecutor weighs the evidence, the public interest, and the strength of the case, and decides how to proceed. You have a legal right to be heard on major decisions like plea deals, but the final call isn’t yours.
What a Subpoena Actually Does
A subpoena is a court order commanding a specific person to appear at a specific place and time to testify. It is not a request. In federal criminal cases, a subpoena must include the court’s name, the title of the case, and the exact time and place the witness is expected to appear.2Legal Information Institute. Federal Rules of Criminal Procedure Rule 17 – Subpoena A judge or court clerk issues it at the prosecutor’s request. The defense can also subpoena witnesses.
The subpoena has to be handed to you in person. Along with it, the server is required to give you a one-day witness attendance fee and a mileage allowance.2Legal Information Institute. Federal Rules of Criminal Procedure Rule 17 – Subpoena Once you’ve been personally served, you are legally bound to comply. How you feel about the case, the defendant, or the process doesn’t change that.
What Happens If You Ignore It
Skipping court after being served is a direct violation of a court order. Federal courts have broad power to punish contempt through fines, imprisonment, or both.3Office of the Law Revision Counsel. United States Code Title 18 – 401 Power of Court The most common immediate consequence is a bench warrant: the judge signs an order, and law enforcement picks you up and brings you to court.
Contempt comes in two forms. Civil contempt is coercive. A judge jails you until you agree to take the stand, and the jailing ends the moment you comply. Criminal contempt punishes you for the disobedience itself. A criminal contempt sanction can be a set fine or a fixed jail sentence, and it doesn’t disappear if you change your mind and agree to testify. A judge picks one route for the same act of defiance, but both carry real consequences.
Can You Challenge the Subpoena?
You do have options short of ignoring it. If you believe a subpoena is improper, you can ask the court to cancel or narrow it by filing a motion to quash. Courts grant these when the subpoena demands privileged information, imposes an unreasonable burden, or was served improperly.
The Fifth Amendment is another protection, though a limited one. You can refuse to answer a specific question on the stand if an honest answer could incriminate you in a crime. What the Fifth Amendment does not let you do is skip the proceeding altogether. You still have to appear, take the oath, and invoke the privilege question by question. The judge then decides whether it applies to each answer you’re trying to avoid. If you had any involvement in illegal activity connected to the case, this is where hiring your own attorney becomes important, even though the prosecutor is nominally on your side.
If You’re Afraid to Testify
Fear of the defendant is one of the most common reasons victims don’t want to participate, and the law takes it seriously.
Federal law makes it a crime to intimidate, threaten, or pressure any person to prevent them from testifying. Using threats or misleading conduct to influence, delay, or prevent someone’s testimony in an official proceeding carries up to 20 years in prison.4Office of the Law Revision Counsel. United States Code Title 18 – 1512 Tampering With a Witness, Victim, or an Informant A separate law prohibits retaliating against anyone who provides truthful information to law enforcement about a federal crime, including through interference with employment, with a penalty of up to 10 years.5Office of the Law Revision Counsel. United States Code Title 18 – 1513 Retaliating Against a Witness, Victim, or an Informant
Courts can also issue no-contact orders that prohibit the defendant from communicating with you directly or through anyone else during the case. Violating a no-contact order is a separate offense. If you feel threatened at any point, tell the prosecutor or the victim-witness coordinator right away. They can ask the court for additional protective measures, and in serious cases the defendant’s bail conditions can be tightened or revoked.
Can the Case Go Forward Without Your Testimony?
Sometimes, yes. Prosecutors can pursue what’s called an evidence-based prosecution, building the case on other proof. Whether they choose to depends on how strong the rest of the evidence is. The kinds of evidence that can carry a case include:
- 911 recordings capturing statements made during an ongoing emergency
- Body camera footage from responding officers showing the scene and visible injuries
- Medical records and photographs documenting injuries and treatment
- Physical evidence such as damaged property, weapons, or DNA
- Testimony from neighbors, bystanders, or responding officers
- The defendant’s own admissions or confessions
The Sixth Amendment limits what prosecutors can use here. It gives defendants the right to confront the witnesses against them. The Supreme Court held in Crawford v. Washington that statements made in a formal or investigative setting, like a police interview conducted after events have calmed down, generally cannot be admitted unless the person who made them testifies and faces cross-examination.6Legal Information Institute. Crawford v Washington Two years later, in Davis v. Washington, the Court clarified that statements made during an ongoing emergency, such as a frantic 911 call while an assault is happening, are not formal testimony and can be admitted even if the caller doesn’t take the stand.7Justia Law. Davis v Washington, 547 US 813 (2006) That’s a large part of why prosecutors place such high value on 911 recordings.
There is also a doctrine called forfeiture by wrongdoing. If the defendant is the reason a victim won’t or can’t testify, through threats, intimidation, or violence, the defendant loses the right to complain about not being able to cross-examine that witness. The prosecution can then introduce the victim’s earlier statements. To use this doctrine, the prosecutor must prove by a preponderance of the evidence that the defendant intentionally caused the victim’s unavailability.
Where to Get Help If You’ve Been Subpoenaed
You don’t have to figure any of this out alone. Every federal district has a Victim-Witness Coordinator through the United States Attorney’s Office, and most state and local prosecutors’ offices run similar programs.8Bureau of Alcohol, Tobacco, Firearms and Explosives. Victim/Witness Assistance Program These services are free.
Advocates can walk you through what to expect in the courtroom, orient you to the courthouse before trial day, keep you updated on the case, and sit with you at hearings. They help arrange transportation and connect you with childcare resources when needed. They also assist with applying for state victim compensation, which can cover medical expenses, mental health counseling, lost wages, and funeral costs related to the crime.9Drug Enforcement Administration. Victim Witness Assistance Program
On the compensation side, a subpoenaed witness in federal court receives an attendance fee of $40 per day plus a mileage allowance at the federal government travel rate.10Office of the Law Revision Counsel. United States Code Title 28 – 1821 Per Diem and Mileage Generally State witness fees are often lower, in the range of $15 to $40 per day. State victim compensation programs are the more meaningful resource for actual costs and lost wages, with caps that generally fall between $15,000 and $50,000.
If you’ve been served with a subpoena and you’re not sure what to do, calling the prosecutor’s office and asking for the victim-witness coordinator is the most useful first step you can take.