In Barnett v. Norman, published March 31, 2015, the 9th Circuit Court of Appeals reversed a judgment against a pro se prisoner who sued his guards under 42 U.S.C. section 1983 for use of excessive force. The prisoner subpoenaed three fellow inmates to testify at trial. All three, when called, refused to answer questions. The magistrate judge presiding over the trial stated she could not do anything to compel the witnesses to cooperate. The jury found against the plaintiff.
The appellate panel concluded that the magistrate judge had erred by failing to exercise her discretion and use her power to encourage truthful answers to fair questions. A judge has several powers available to compel testimony, from asking additional questions herself, through questioning the witness outside the jury's presence on whether the witness is being threatened, to the "sledgehammer" of using her contempt power. While a court has discretion in using these techniques, the court has no discretion to simply conclude it has no power to compel recalcitrant witnesses to testify. The plaintiff was entitled to a new trial.
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