I was involved in a motor vehicle accident several years ago. My lawyer is telling me that I have to testify at a trial. I already told my story. Why do I have to appear in court and testify? Don’t I have a right to not testify?
By the way you phrased your question, I am assuming that you are the person at fault in the accident and you are being sued. The answer to your question is you do have to testify. You have to testify for two reasons.
Duty To Cooperate With Your Insurance Carrier
The first reason is for your own self interest. In order for your case to be defended and ultimately indemnified by your insurance company, you have an obligation to cooperate with your insurance carrier. If you do not cooperate with your insurance carrier and testify a trial, your insurance carrier can disclaim your coverage. This means that the carrier would not indemnify you against any judgment. And second, if you fail to cooperate in your defense, the insurance company lawyer could petition the court to withdraw as your council.
Since I am inferring from your question that your trial is going to begin soon, it is unlikely that a judge would allow your attorney to withdraw from representing you so close to trial. However, if you fail to cooperate with the insurance company, you would be obligated to pay any judgment against you. Nothing can compel the insurance company to indemnify your loss if you have failed to cooperate defending your case.
Fifth Amendment Right Against Self-incrimination
You may have seen TV shows depicting trials. In those TV shows, you have probably noticed that defendants in criminal actions have the right to not testify at their own trial. Furthermore, a jury cannot infer that a person is guilty just because they do not testify at their own trial.
Civil cases are different. The Fifth Amendment accords an individual the privilege not to answer questions in a civil trial if the answers might incriminate the person in future criminal proceedings, Andrew Carothers, M.D., P.C. v Progressive Insurance Company, 33 NY3d 389, 104 NYS3d 26 (2019). But if a person exercises that privilege to not testify in a civil matter, an unfavorable inference may be drawn against a party from the exercise of the privilege against self-incrimination. So unlike a criminal cases, a jury can infer your liability from your failure to testify in your defense.
There are really two separate issues. One issue is putting yourself in jeopardy for a criminal prosecution. If you confess to committing a criminal act in a civil case, you potentially are jeopardizing your freedom in a separate criminal case. So that would be a reason not to testify in a civil case.
But there is no fifth amendment right against self-incrimination in civil cases. A civil case regarding a car accident is not a criminal matter. You are in no jeopardy of going to jail. The only adverse consequence is the plaintiff might obtain a judgment against you for damages.
Thus, your best course of action is to do as your attorney instructs. You should testify to the best of your ability when the lawyer tells you to appear in court.
By James Santner, Esq.
If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.