Can a witness involved in deposition procedure choose to remain silent?

Answer 1

A deposition is when the lawyers for one side or the other in the case subpoena a witness and depose him or her, asking him or her the exact same questions, under oath, and with a court reporter present, that they would ask him or her in trial.

Depositions usually happen in the law offices of one side or the other in the trial; and lawyers from both sides are present. Since depositions are done for the purpose of finding out what the opposing party's witnesses are going to say at trial, the deposing attorney is allowed to use cross-examining techniques and is not limited to the restrictions placed on direct examination. After all, the person being deposed is not the deposing attorney's witness unless the deposition has been called for the purpose of preserving the testimony of a witness whose health is in grave danger or who might be unavailable at trial for some reason. After the deposing attorney is finished, the other attorney is allowed to ask follow up questions to clarify answers of the witness. Those questions are not cross-examining questions; they are more in the nature of redirect examination questions.

Since there's no judge present, if either side objects to something, it's either noted for possible later ruling by the judge, or the deposition stops and the parties go before the judge to get a ruling, and then they resume.

In a criminal trial, the defendant cannot be subpoeanaed as a witness... either in a deposition, or at trial. However, if it's a civil case, then the defendant may not refuse to testify. S/he may not "remain silent."

However, if something the defendant might say, even in a civil trial, could somehow incriminate him/her, then s/he may assert his/her right against self-incrimination under the Fifth Amendment to the Constitution of the United States, and remain silent. Such doesn't usually go over very well, though, with the judge in a civil trial... especially if the witness is the civil defendant. A hearing would likely ensue, and the defendant may very well be ordered to testify... especially if the prosecutor gives the defendant what's called "use immunity," thereby eliminating any possibility of prosecuting the civil defendant for anything to which s/he testifies in either civil deposition or civil trial.

A defendant who "takes the fifth," as it's called, in a criminal trial, is another matter altogether. Usually, such is not even necessary since all parties know that the defendant need not testify in his own criminal trial, no matter what. Of course, if he wants to, he can; and if he does, and he hits a point in his testimony wherein his answer could further incriminate him, then, yes, he could "take the fifth." But, again, there'd be a hearing, then likely an offer of some kind of conditional use immunity, and the defendant may very well be ordered to testify. While judges are loathe to order criminal defendants to testify, once they deign to get on the witness stand, and start to so do, all bets can, in the judge's mind, be kinda' off.

Any witness, though, may, if s/he has a reasonable good faith belief that his/her answer will incriminate her -- whether in a civil or criminal deposition, or at civil or criminal trial -- invoke his/her rights under the Fifth Amendment, and so, then, remain silent. However, s/he had better not be lying about that reasonable good faith belief. It has to be real, and it has to be serious.

It can also, in most states, not be selective. A witness may typically not testify as to one thing, and then selectively "take the fifth" regarding other things. Usually, once the witness "takes the fifth," then his/her testimony is overwith. The exception can be grand jury testimony, which can, in some states, be selective.