782 F.3d 417
9th Cir.2015Background
- Barnett, a prisoner, sued two guards for excessive force and a third for failure to protect under § 1983.
- The magistrate judge ordered production of three prisoner-witnesses who volunteered to testify under compulsion.
- Johnson, King, and Conti initially refused to answer questions; the court could not compel them to testify.
- Barnett opened by promising to have those witnesses testify; each witness refused to answer.
- The jury ultimately returned a verdict for the guards; Barnett appeals the ruling allowing witness abstention.
- The Ninth Circuit held the magistrate judge abused discretion by allowing the witnesses to opt out and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether witnesses may refuse to testify when compelled | Barnett argues court failed to compel. | Norman contends discretion permissible limits. | Yes, abuse to permit opt-out |
| Effect of witness abstention on the central claim | Testimony was central for Barnett. | Witness non-testimony would be non-prejudicial. | Prejudice not harmless; reversal warranted |
| Judicial tools to compel testimony | Judge should use coercive measures if needed. | Court may attempt other incentives; may be futile. | Court abused discretion by not attempting compelled testimony |
| Standards for preservation of error on appeal | Pro se litigant preserved error; review is for abuse of discretion. | Error not preserved via motion; plain error standard. | Preserved; reviewed for abuse of discretion |
Key Cases Cited
- Blair v. United States, 250 U.S. 273 (Supreme Court 1919) (testimony is a public duty to be compelled)
- Clinton v. Jones, 520 U.S. 681 (Supreme Court 1997) (no absolute immunity from testifying)
- Calandra, 414 U.S. 338 (Supreme Court 1974) (public interest in full disclosure overrides objections)
- Bryan, 339 U.S. 323 (Supreme Court 1950) (subpoena not invitation to opt out of testifying)
- Doe, 125 F.3d 1249 (9th Cir. 1997) (court may question witness or compel outside jury presence)
- Powers, 629 F.2d 619 (9th Cir. 1980) (courts can sanction to obtain truthful testimony)
- Ortloff, 708 F.2d 1455 (9th Cir. 1983) (contumacious witness and contempt consequences)
- Garmon, 572 F.2d 1373 (9th Cir. 1978) (recognition that coercive efforts may fail)