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What do family members that don't want to testify against their family members usually do ? do they face the penalty ?

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Perjury only applies to someone who actually does testify and is untruthful. A person who refuses to testify at all, when ordered to do so by a subpoena, is committing contempt of court.

It is possible, in principle, for the court to order them jailed indefinitely until they do testify (civil contempt). It is also possible for them to be prosecuted criminally afterward (criminal contempt).

Nate Eldredge
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  • Purposefully forgetting is a thing, if you don’t want to lie and you don’t want to refuse… – jmoreno May 02 '23 at 03:43
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    @jmoreno: That's addressed in this question. Saying under oath that you don't remember, when in fact you do remember, is perjury. It may be difficult for prosecutors to prove beyond a reasonable doubt that you did remember, but it's not impossible given sufficient evidence. – Nate Eldredge May 02 '23 at 03:45
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    No, it’s not. Purposefully forgetting isn’t lying, it’s deliberately messing up your memory. It’s a close cousin to how you get kids to testify in bloody detail about satanic sacrifices of non-existent schoolmates. – jmoreno May 02 '23 at 03:50
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    @jmoreno Purposefully forgetting isn't a thing. Trauma can suppress memories and people can just plain old forget, or get confused about the facts, but you can't purposefully forget something. – ohwilleke May 03 '23 at 19:36
  • @ohwilleke: science and google says otherwise, try the search terms “purposeful forgetting”. Memory is both unreliable and malleable, changeable by both circumstances and intent. Now, I’m not saying purposefully forgetting happens a lot (or ever) in court, but it is a real thing. – jmoreno May 03 '23 at 23:06
  • @ohwilleke it is called Dissociative amnesia or as I like to somewhat snidely refer to it. Post traumatic Alzheimers. People of otherwise healthy mind forgetting things that are painful or shameful to them is certainly possible. It would be interesting to see how a case would be handled were somebody claims this and it is contended. If one pshycologist says it is real and another says it is not, what then? – Neil Meyer May 04 '23 at 12:12
  • @ohwilleke You may not be able to erase all memories of an event, but you can certainly confuse yourself enough that you can no longer trust your own memories. – forest May 22 '23 at 05:40
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There is a list of relatives who can refuse to testify, including spouses, children, and parents. §52 StPO:

The following are allowed to refuse testimony:
1 the fiancee of the accused;
2 the spouse of the accused, even if the marriage no longer exists;
2a the registered partner of the accused, even if the partnership no longer exists;
3 whoever is related or in-law in direct line, related in indirect line to the third degree, or in-law in indirect line to the second degree. (my translation)

Degrees of relationship are counted by 'counting hops.' My uncle is three degrees apart from me, me to my parents to my grandparents to the uncle.

o.m.
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They testify or they go to jail

The only privilege against incrimination that the common law recognises are self-incrimination and spousal privilege. Spousal privilege does not apply in certain cases (e.g. family law), and, in some jurisdictions, the spouse can choose to testify against their spouse and in others the privilege can only be waived by the defendant.

If you are summonsed to appear to testify then you must testify or be jailed until you do.

Dale M
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