The rights and duties of witnesses in criminal proceedings
Have you been called as a witness in a criminal case? If so, you may be brimming with questions. In these contributions, we will discuss some common ones.
I have been called as a witness. Do I have to appear as well?
It depends. If you are called to the police as a witness, the police cannot force you to appear. It is different if you are called by the judge to testify. When the judge calls you as a witness, he/she can compel you to appear. If you have not appeared at the first call by the judge, the judge may decide to have the police pick you up by means of an "order to abscond. In such a case, the police may show up at your doorstep to take you to the court or tribunal.
The police may still sometimes suggest that you are required to appear at the police station. This is not true. You are not required to appear if the police ask you to appear as a witness.
I have been called as a witness. Do I also have to testify?
It depends. In the police you are not required to testify, in court you usually are, unless you have a right to privilege. For example, the law states that no one is required to testify against (close) family members. Also, certain professionals (such as lawyers and doctors) may excuse themselves if they are asked about information they learned through their work.
Those who may exercise the right to privilege include:
the (former) spouse or registered partner of a litigant;
the relatives by blood or marriage (up to the second degree) of a litigant or of his or her spouse or registered partner;
journalists about asking for their source;
persons bound to secrecy by virtue of their office, profession or employment (lawyer, notary public, doctor, clergyman).
The law also provides that a witness does not have to answer questions if, as a result:
themselves, or
one of his relatives by blood or marriage in the direct line, or
one of his relatives by blood or marriage in the lateral line (in the second or third degree), or
His (former) spouse or registered partner,
to the risk of a criminal conviction for a crime.