Barnett v. Norman, 2015 U.S. App. LEXIS 5145 (9th Cir. Mar. 31, 2015):

Prisoner Troas Barnett appeals a jury verdict that rejected his pro se § 1983 claims of excessive force by prison guards. On appeal and now with assistance of counsel, Barnett contends that the trial court abused its discretion by permitting three prisoner-witnesses to refuse to answer his questions because, according to the prisoner-witnesses, they had "nothing to add to this matter," chose "not to be a party [*3]  to" the trial, or were simply unwilling to testify.

While there are exceptions to the maxim "the public has a right to every man's evidence," witness abstention is not one of them. The district court abused its discretion by disclaiming any authority to compel the prisoner-witnesses to answer Barnett's questions. We reverse the judgment and remand for a new trial.

***

III. DISCUSSION

Both sides in a trial have the right to call witnesses, and the power to compel witness testimony is essential to our system of justice. See Blair v. United States, 250 U.S. 273, 281-82 (1919) ("[T]he giving of testimony and the attendance upon court or grand jury in order to testify are public duties . . . necessary [*8]  to the administration of justice . . . ."). No one, not even the President of the United States, can automatically avoid testifying in a deposition, before a grand jury, or in a courtroom. See Clinton v. Jones, 520 U.S. 681, 704-05 (1997); United States v. Fromme, 405 F. Supp. 578, 582-83 (E.D. Cal. 1975). And while there are important exceptions to this fundamental rule — including the Fifth Amendment, spousal privilege, and attorney-client [*9]  privilege — "these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." United States v. Nixon, 418 U.S. 683, 710 (1974); see also Trammel v. United States, 445 U.S. 40, 50-51 (1980).

This is not to say that there is an absolute right to call any witness-within constitutional and statutory limits, trial judges have discretion on the presentation of witness testimony, including decisions regarding the competency of a person to testify, the number of witnesses a party may call, and the allowable purposes of the testimony. See Geders v. United States, 425 U.S. 80, 86-87 (1976) (trial judges have broad power to determine "the order in which parties will adduce proof; . . . [they] may control the scope of rebuttal testimony, may refuse to allow cumulative, repetitive, or irrelevant testimony, and may control the scope of examination of witnesses" (citations omitted)); see also Fed. R. Evid. 403 (power to exclude testimony for prejudice, confusion, or waste of time); Fed. R. Evid. 602 (power to exclude testimony for witness's lack of personal knowledge); Fed. R. Evid. 611 (power to exercise reasonable control over mode and order of examining witnesses and to protect witnesses from harassment or undue embarrassment); Fed. R. Evid. 614 (power to call and examine witnesses).

But what a judge cannot do is to [*10]  allow a witness to refuse to testify because he would prefer not to answer a question. The public's interest in full disclosure and the fair administration of justice overrides concerns that testimony might be inconvenient, burdensome, or harmful to a witness's social or economic status. United States v. Calandra, 414 U.S. 338, 345 (1974). Moreover, a "subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase." United States v. Bryan, 339 U.S. 323, 331 (1950). Witnesses cannot refuse to answer questions merely because they choose not to — there is no opt-out box on a subpoena. To hold otherwise would make "the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures," a nullity. Id. Thus, a trial judge faced with uncooperative witnesses cannot endorse recalcitrance by saying, "there's not much I can do," "I can't compel him to answer if he's not going to answer," and "I don't know what to say."

There is plenty that a judge can do to encourage a witness's testimony. She can direct the witness to answer the question and tell him about the consequences of not doing so. See, e.g.,United States v. Doe, 125 F.3d 1249, 1252 (9th Cir. 1997); United States v. Powers, 629 F.2d 619, 621-22 (9th Cir. 1980). She can ask the questions herself. Fed. R. Evid. 614(b); see [*11]  also, e.g., United States v. Flores, 628 F.2d 521, 524 & n.3 (9th Cir. 1980). She can take a recess and inquire outside the presence of the jury whether something is impeding truthful testimony. See, e.g., Kronick v. United States, 343 F.2d 436, 439 (9th Cir. 1965); Flores, 628 F.2d at 524-25; see also Harris v. United States, 382 U.S. 162, 166 (1965) ("What appears to be a brazen refusal to cooperate with the grand jury may indeed be a case of frightened silence. Refusal to answer may be due to fear-fear of reprisals on the witness or his family. Other extenuating circumstances may be present.").

These are not rarely used tools-they come into play daily in depositions, grand juries, and courts around the country. If a judge is unable to scale a witness's wall of silence with these tried-and-true methods, she has a sledgehammer at her disposal — the contempt statutes-to break through to answers. See 18 U.S.C. §§ 401, 402; 28 U.S.C. §§ 636(e), 1826; Fed. R. Crim. P. 42; United States v. Wilson, 421 U.S. 309, 316, 319 (1975) ("In an ongoing trial, with the judge, jurors, counsel, and witnesses all waiting," a witness's "contumacious silence, after . . . an explicit, unambiguous order to testify, impede[s] the due course of . . . trial" and can warrant summary contempt sanctions); Powers, 629 F.2d at 624 ("The inherent power of the courts to punish contempt of their authority and to coerce compliance with orders is not disputed."); In re Grand Jury Proceedings, Ortloff, 708 F.2d 1455, 1457 (9th Cir. 1983) (affirming criminal contempt conviction, where prisoner-witness [*12]  "claimed to have no knowledge of the matters in question" and the judge described the consequences of failing to testify, informed him he had no choice but testify, told him if he could not answer a question because of lack of knowledge he should say so in his testimony, and, ultimately, held him in contempt when he still refused to testify); Dupuy v. United States, 518 F.2d 1295, 1295 (9th Cir. 1975) (per curiam) (affirming civil contempt sanction imposed on a prisoner who refused to answer questions during grand jury proceedings because of fear for his life, holding that "fear of physical harm does not excuse a witness from testifying").

Understandably, defendants do not challenge the court's clear power to encourage truthful answers to fair questions. Rather, they insist that such judicial efforts would have been futile, as harsh questioning from the judge or threats of contempt would never have compelled these hardened criminals to answer Barnett's questions. We agree that efforts to compel testimony will sometimes prove fruitless. See In re Garmon, 572 F.2d 1373, 1374 (9th Cir. 1978) (where incarcerated witnesses continued to refuse to testify, court suspended their sentences and held them in civil contempt); United States v. Weinberg, 439 F.2d 743, 745 (9th Cir. 1971) (witnesses still refused to testify after court granted [*13]  them immunity and ordered them to answer questions). But perhaps such efforts could have worked with at least one of the witnesses.

Whether to employ a particular incentive or sanction to encourage testimony rests within the district court's sound discretion. See SEC v. Elmas Trading Corp., 824 F.2d 732, 733 (9th Cir. 1987). We do not presume to prescribe specific procedures a district court must follow when faced with a recalcitrant witness. "There are no inflexible rules to guide the court's discretion." United States v. Panza, 612 F.2d 432, 439 (9th Cir. 1979). "The propriety of a given sanction will vary with the circumstances," and we leave it to the trial judge to exercise that discretion in light of the specific facts of a case. Id. Under certain circumstances-perhaps the witness's testimony is cumulative or on an ancillary issue, and sanctions are unlikely to overcome his or her reluctance to speak-the appropriate course of action may well be to do nothing.

But before we can validate that discretionary determination, the trial court must actually exercise its discretion. See Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002). Where a "necessary and material" witness refuses to testify and no constitutional, statutory, or common-law rule bars the testimony, a judge must try to encourage the testimony or at least explain on the record why, in [*14]  her discretion, she did nothing because, for instance, such efforts would have been futile. Here, the magistrate judge abused her discretion as a matter of law when she permitted the prisoners to opt out of testifying.

This error was not harmless. As Barnett contends, "[e]verything in this case turned on which version of events was believed." Barnett's anticipated case-in-chief comprised only three eyewitness accounts and his own testimony. Allowing the witnesses to opt out denied Barnett the chance to corroborate his story. This was especially damaging, as Barnett had promised the jurors that the prisoners' testimony would support his version of events-the jury would need not rely solely on his word. See United States v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997) (erroneous exclusion of evidence more probably than not affected the verdict when it "deprived Morales of the only corroborating evidence she had"). The fact-intensive nature of Barnett's claim made eyewitness testimony all the more critical. See United States v. Hobbs, 31 F.3d 918, 923 (9th Cir. 1994) (the right to have a witness is even more substantial where parties present "conflicting, mutually-exclusive stories"). And while it is possible that the prisoners would have steadfastly refused to say anything even [*15]  after the judge nudged, cajoled, and/or threatened them, it is more likely that at least one of the three, facing a federal judge and additional sanctions, would have agreed to answer at least some of the questions.

Finally, we recognize that the witnesses might indeed have seen or heard nothing relevant, although were that the case it seems they would have simply said so. It is also possible that whatever testimony they might have offered would have corroborated the defendants' version of events. We cannot know, because the magistrate judge did not try to encourage their testimony.

Given these facts, we cannot say it was "more probable than not" that the jury was unaffected by the error. See Obrey v. Johnson, 400 F.3d 691, 701-02 (9th Cir. 2005) (prejudice occurs when erroneously excluded evidence was "not merely tangential or cumulative" but "directly probative of the central issues in dispute").