                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


TROAS V. BARNETT,                       No. 13-15234
               Plaintiff-Appellant,
                                           D.C. No.
                v.                      1:05-cv-01022-
                                             BAM
DAVID NORMAN; A. CASTRO; TRACY
JACKSON; A. FOUCH; J.
PRUDHOMME; D. FULKS; JASON                OPINION
BARBA; K. CURTISS; MICHAEL
PALLARES; K. LENNON; MARTIN
GAMBOA; ANGEL DURAN; DIMAS
MANUEL TORRES BARRAZA;
MANUEL TORRES,
             Defendants-Appellees.


     Appeal from the United States District Court
         for the Eastern District of California
    Barbara McAuliffe, Magistrate Judge, Presiding

                Argued and Submitted
       March 9, 2015—San Francisco, California

                 Filed March 31, 2015

        Before: Marsha S. Berzon, Jay S. Bybee,
          and John B. Owens, Circuit Judges.

               Opinion by Judge Owens
2                     BARNETT V. NORMAN

                           SUMMARY*


                            Civil Rights

    The panel reversed the district court’s judgment and
remanded for a new trial in an action brought by state
prisoner Troas Barnett pursuant to 42 U.S.C. § 1983, alleging
excessive force by prison guards.

    Barnett asserted that the district court abused its
discretion by permitting three prisoner-witnesses to refuse to
answer his questions because, according to the prisoner-
witnesses, they had “nothing to add to this matter,” chose
“not to be a party to” the trial, or were simply unwilling to
testify. The panel held that the district court abused its
discretion by disclaiming any authority to compel the
prisoner-witnesses to answer Barnett’s questions. The panel
held that where a “necessary and material” witness refuses to
testify and no constitutional, statutory, or common-law rule
bars the testimony, a judge must try to encourage the
testimony or at least explain on the record why, in her
discretion, she did nothing because, for instance, such efforts
would have been futile. In this case, the magistrate judge
abused her discretion as a matter of law when she permitted
the prisoners to opt out of testifying. The panel further held
that given these facts, it could not say that it was “more
probable than not” that the jury was unaffected by the error,
and therefore the error was not harmless.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   BARNETT V. NORMAN                         3

                         COUNSEL

Ian Samuel (argued) Jones Day, New York, New York, for
Plaintiff-Appellant.

Janine K. Jeffery (argued) Reily & Jeffery, Inc. Northridge,
California, for Defendants-Appellees.




                         OPINION

OWENS, Circuit Judge:

    Prisoner Troas Barnett appeals a jury verdict that rejected
his pro se § 1983 claims of excessive force by prison guards.
On appeal and now with assistance of counsel, Barnett
contends that the trial court abused its discretion by
permitting three prisoner-witnesses to refuse to answer his
questions because, according to the prisoner-witnesses, they
had “nothing to add to this matter,” chose “not to be a party
to” the trial, or were simply unwilling to testify.

    While there are exceptions to the maxim “the public has
a right to every man’s evidence,” witness abstention is not
one of them. The district court abused its discretion by
disclaiming any authority to compel the prisoner-witnesses to
answer Barnett’s questions. We reverse the judgment and
remand for a new trial.
4                     BARNETT V. NORMAN

                             I. FACTS

        A. The Fight and Pretrial Litigation

    On November 4, 2003, Barnett and two prison guards
fought violently in his cell. Barnett says that the guards
attacked him with a flashlight and a baton without
provocation and followed up with pepper spray and more
baton strikes after his submission. The guards say that
Barnett initiated the attack on one guard and the other came
to his colleague’s aid, and that both guards were injured. The
parties agree that Barnett suffered physical injuries.

    Barnett sued the two guards under 42 U.S.C. § 1983 for
malicious and sadistic use of force in violation of the Eighth
Amendment, and a third guard for failing to protect Barnett
by timely intervening. The parties consented to trying the
case before a magistrate judge.

    A key issue was whether Barnett could secure the
attendance of witnesses for trial. Barnett filed motions for the
production of prisoners Phillip Conti, Darrell King, and Sven
Johnson to testify on his behalf. He stated that while the
three would not testify voluntarily, they would provide
evidence supporting his version of events if compelled. The
guards opposed these efforts and suggested the witnesses
testify by video or telephone, as transporting the dangerous
prisoners, all serving lengthy sentences for violent crimes,
required significant law enforcement supervision and
resources. The magistrate judge granted Barnett’s motions.1


    1
   The magistrate judge initially denied Barnett’s motion as to Johnson,
concluding that his testimony would be cumulative. Barnett objected to
the denial, arguing that Johnson could offer non-cumulative testimony,
                    BARNETT V. NORMAN                          5

In writs of habeas corpus ad testificandum, the judge
identified each inmate as a “necessary and material witness”
and ordered their production for trial. Shortly after the
judge’s order, King filed a request to quash the writ and a
supporting declaration stating that he did not see the officers
“apply any force to Barnett,” he could not “provide any
relevant information,” and he did not “wish to attend trial.”

    B. The Trial

    In his opening statement, Barnett promised the jury that
it would hear from the three prisoners who witnessed the
incident. Barnett first called his former cellmate Johnson to
the stand. As his opening question and in front of the jury,
Barnett asked Johnson if he recalled being Barnett’s cellmate.
The following exchange ensued:

        Johnson: Your Honor, I asked not to be
                 brought here. I have nothing to
                 add to this matter.

        Court:      All right. If you don’t recall, then
                    you can just say that.

        Barnett:    On November 4, 2003, were you
                    incarcerated at the California
                    Substance Abuse Treatment
                    Facility?

        Johnson: I have nothing to add to this
                 matter.


and the magistrate judge, upon reconsideration, ordered Johnson’s
presence.
6                  BARNETT V. NORMAN

       Barnett:   Your honor, I can scarcely see
                  how I’m going to ask him with
                  regard to relevant testimony, Your
                  Honor, to what transpired, Your
                  Honor, if he refuses to answer any
                  questions.

       Court:     I can’t compel him to answer if
                  he’s not going to answer.

       Barnett:   Are you not going to answer any
                  questions that I ask you? Was that
                  –

       Johnson: None.

       Barnett:   – your statement for the record?

       Johnson: None.

       Court:     All right.

       Barnett:   I’d like to thank and excuse the
                  witness then, Your Honor,
                  because, I mean, I can’t force him
                  to answer questions here.

Openly speculating that someone had threatened Johnson,
Barnett asked his former cellmate if that were the case.
Rather than answer that question, Johnson continued to state
that he had “nothing to add to this matter.” The trial judge
then asked the witness directly, “Do you want to answer that
question?” When the witness said “No,” the court stated, “I
don’t know what to say,” and Johnson was excused.
                    BARNETT V. NORMAN                         7

    Barnett next called King. Outside the presence of the jury
(and not under oath), King refused to answer any of Barnett’s
questions. King explained that although he had not been
threatened, he chose “not to be a party to this proceeding.”
After Barnett said that he did not “know what to do,” the
court responded that it could not “compel [King] to state
anything.” Barnett then asked the court, “if all these
witnesses are going to come in here and say the same thing,
Your Honor, what was the purpose of bringing them here to
the Court in the first place?” The trial judge stated that King:

       didn’t feel like he was being threatened, he
       just didn’t want to have anything to do with
       this. So there’s not much I can do. I can’t
       compel him to testify as to facts that he won’t
       testify to.

After King confirmed that he would not “answer a single
question with regard to the incident,” he was excused.

    Barnett’s final witness was Conti. When Barnett asked if
Conti was “willing to offer testimony” about the altercation,
Conti replied “No.” Barnett then told the trial court, “Well,
I can’t do nothing but thank and excuse the witness, Your
Honor, because they’re all coming in here and saying the
same thing.” The court did not disagree, and excused Conti.
Without hearing any testimony about the fight from the three
promised witnesses, the jury returned a verdict in favor of the
guards.

              II. STANDARD OF REVIEW

   A district court abuses its discretion when it does not
apply the correct law, Jeff D. v. Otter, 643 F.3d 278, 283 (9th
8                       BARNETT V. NORMAN

Cir. 2011), or erroneously interprets the law, United States v.
Beltran-Gutierrez, 19 F.3d 1287, 1289 (9th Cir. 1994).2
Evidentiary error will not result in reversal absent prejudice.
See Freeman v. Allstate Life Ins. Co., 253 F.3d 533, 536 (9th
Cir. 2001).

                          III. DISCUSSION

      Both sides in a trial have the right to call witnesses, and
the power to compel witness testimony is essential to our
system of justice. See Blair v. United States, 250 U.S. 273,
281–82 (1919) (“[T]he giving of testimony and the
attendance upon court or grand jury in order to testify are
public duties . . . necessary to the administration of justice
. . . .”). No one, not even the President of the United States,
can automatically avoid testifying in a deposition, before a
grand jury, or in a courtroom. See Clinton v. Jones, 520 U.S.
681, 704–05 (1997); United States v. Fromme, 405 F. Supp.
578, 582–83 (E.D. Cal. 1975). And while there are important
exceptions to this fundamental rule—including the Fifth


    2
    Defendants contend that we should review for plain error; they argue
that Barnett failed to preserve the issue for appeal because he did not file
a motion or expressly request that the district court compel each witness’s
testimony. In light of the leniency due to pro se litigants, Christensen v.
Comm’r, 786 F.2d 1382, 1384–85 (9th Cir. 1986), Barnett’s multiple
attempts to get the court’s help during his examinations, and the
magistrate judge’s responses to his complaints—showing she heard his
protests and had an opportunity to rule on the issue—we conclude Barnett
put the judge and defendants on notice. See Walsh v. Nev. Dep’t of
Human Res., 471 F.3d 1033, 1037 (9th Cir. 2006) (“No ‘bright line’ exists
to determine whether an issue has been properly raised below, but ‘a
workable standard is that the issue must be raised sufficiently for the trial
court to rule on it.’” (quoting Whittaker Corp. v. Execuair Corp., 953 F.2d
510, 515 (9th Cir. 1992))). Because Barnett sufficiently preserved his
claim, we review for abuse of discretion.
                    BARNETT V. NORMAN                           9

Amendment, spousal privilege, and attorney-client
privilege—“these exceptions to the demand for every man’s
evidence are not lightly created nor expansively construed,
for they are in derogation of the search for truth.” United
States v. Nixon, 418 U.S. 683, 710 (1974); see also Trammel
v. United States, 445 U.S. 40, 50–51 (1980).

    This is not to say that there is an absolute right to call any
witness—within constitutional and statutory limits, trial
judges have discretion on the presentation of witness
testimony, including decisions regarding the competency of
a person to testify, the number of witnesses a party may call,
and the allowable purposes of the testimony. See Geders v.
United States, 425 U.S. 80, 86–87 (1976) (trial judges have
broad power to determine “the order in which parties will
adduce proof; . . . [they] may control the scope of rebuttal
testimony, may refuse to allow cumulative, repetitive, or
irrelevant testimony, and may control the scope of
examination of witnesses” (citations omitted)); see also Fed.
R. Evid. 403 (power to exclude testimony for prejudice,
confusion, or waste of time); Fed. R. Evid. 602 (power to
exclude testimony for witness’s lack of personal knowledge);
Fed. R. Evid. 611 (power to exercise reasonable control over
mode and order of examining witnesses and to protect
witnesses from harassment or undue embarrassment); Fed. R.
Evid. 614 (power to call and examine witnesses).

    But what a judge cannot do is to allow a witness to refuse
to testify because he would prefer not to answer a question.
The public’s interest in full disclosure and the fair
administration of justice overrides concerns that testimony
might be inconvenient, burdensome, or harmful to a witness’s
social or economic status. United States v. Calandra,
414 U.S. 338, 345 (1974). Moreover, a “subpoena has never
10                 BARNETT V. NORMAN

been treated as an invitation to a game of hare and hounds, in
which the witness must testify only if cornered at the end of
the chase.” United States v. Bryan, 339 U.S. 323, 331 (1950).
Witnesses cannot refuse to answer questions merely because
they choose not to—there is no opt-out box on a subpoena.
To hold otherwise would make “the great power of
testimonial compulsion, so necessary to the effective
functioning of courts and legislatures,” a nullity. Id. Thus,
a trial judge faced with uncooperative witnesses cannot
endorse recalcitrance by saying, “there’s not much I can do,”
“I can’t compel him to answer if he’s not going to answer,”
and “I don’t know what to say.”

    There is plenty that a judge can do to encourage a
witness’s testimony. She can direct the witness to answer the
question and tell him about the consequences of not doing so.
See, e.g., United States v. Doe, 125 F.3d 1249, 1252 (9th Cir.
1997); United States v. Powers, 629 F.2d 619, 621–22 (9th
Cir. 1980). She can ask the questions herself. Fed. R. Evid.
614(b); see also, e.g., United States v. Flores, 628 F.2d 521,
524 & n.3 (9th Cir. 1980). She can take a recess and inquire
outside the presence of the jury whether something is
impeding truthful testimony. See, e.g., Kronick v. United
States, 343 F.2d 436, 439 (9th Cir. 1965); Flores, 628 F.2d at
524–25; see also Harris v. United States, 382 U.S. 162, 166
(1965) (“What appears to be a brazen refusal to cooperate
with the grand jury may indeed be a case of frightened
silence. Refusal to answer may be due to fear—fear of
reprisals on the witness or his family. Other extenuating
circumstances may be present.”).

    These are not rarely used tools—they come into play
daily in depositions, grand juries, and courts around the
country. If a judge is unable to scale a witness’s wall of
                   BARNETT V. NORMAN                        11

silence with these tried-and-true methods, she has a
sledgehammer at her disposal—the contempt statutes—to
break through to answers. See 18 U.S.C. §§ 401, 402;
28 U.S.C. §§ 636(e), 1826; Fed. R. Crim. P. 42; United States
v. Wilson, 421 U.S. 309, 316, 319 (1975) (“In an ongoing
trial, with the judge, jurors, counsel, and witnesses all
waiting,” a witness’s “contumacious silence, after . . . an
explicit, unambiguous order to testify, impede[s] the due
course of . . . trial” and can warrant summary contempt
sanctions); Powers, 629 F.2d at 624 (“The inherent power of
the courts to punish contempt of their authority and to coerce
compliance with orders is not disputed.”); In re Grand Jury
Proceedings, Ortloff, 708 F.2d 1455, 1457 (9th Cir. 1983)
(affirming criminal contempt conviction, where prisoner-
witness “claimed to have no knowledge of the matters in
question” and the judge described the consequences of failing
to testify, informed him he had no choice but testify, told him
if he could not answer a question because of lack of
knowledge he should say so in his testimony, and, ultimately,
held him in contempt when he still refused to testify); Dupuy
v. United States, 518 F.2d 1295, 1295 (9th Cir. 1975) (per
curiam) (affirming civil contempt sanction imposed on a
prisoner who refused to answer questions during grand jury
proceedings because of fear for his life, holding that “fear of
physical harm does not excuse a witness from testifying”).

    Understandably, defendants do not challenge the court’s
clear power to encourage truthful answers to fair questions.
Rather, they insist that such judicial efforts would have been
futile, as harsh questioning from the judge or threats of
contempt would never have compelled these hardened
criminals to answer Barnett’s questions. We agree that
efforts to compel testimony will sometimes prove fruitless.
See In re Garmon, 572 F.2d 1373, 1374 (9th Cir. 1978)
12                  BARNETT V. NORMAN

(where incarcerated witnesses continued to refuse to testify,
court suspended their sentences and held them in civil
contempt); United States v. Weinberg, 439 F.2d 743, 745 (9th
Cir. 1971) (witnesses still refused to testify after court
granted them immunity and ordered them to answer
questions). But perhaps such efforts could have worked with
at least one of the witnesses.

    Whether to employ a particular incentive or sanction to
encourage testimony rests within the district court’s sound
discretion. See SEC v. Elmas Trading Corp., 824 F.2d 732,
733 (9th Cir. 1987). We do not presume to prescribe specific
procedures a district court must follow when faced with a
recalcitrant witness. “There are no inflexible rules to guide
the court’s discretion.” United States v. Panza, 612 F.2d 432,
439 (9th Cir. 1979). “The propriety of a given sanction will
vary with the circumstances,” and we leave it to the trial
judge to exercise that discretion in light of the specific facts
of a case. Id. Under certain circumstances—perhaps the
witness’s testimony is cumulative or on an ancillary issue,
and sanctions are unlikely to overcome his or her reluctance
to speak—the appropriate course of action may well be to do
nothing.

    But before we can validate that discretionary
determination, the trial court must actually exercise its
discretion. See Brown v. Roe, 279 F.3d 742, 744 (9th Cir.
2002). Where a “necessary and material” witness refuses to
testify and no constitutional, statutory, or common-law rule
bars the testimony, a judge must try to encourage the
testimony or at least explain on the record why, in her
discretion, she did nothing because, for instance, such efforts
would have been futile. Here, the magistrate judge abused
                    BARNETT V. NORMAN                          13

her discretion as a matter of law when she permitted the
prisoners to opt out of testifying.

    This error was not harmless. As Barnett contends,
“[e]verything in this case turned on which version of events
was believed.” Barnett’s anticipated case-in-chief comprised
only three eyewitness accounts and his own testimony.
Allowing the witnesses to opt out denied Barnett the chance
to corroborate his story. This was especially damaging, as
Barnett had promised the jurors that the prisoners’ testimony
would support his version of events—the jury would need not
rely solely on his word. See United States v. Morales,
108 F.3d 1031, 1040 (9th Cir. 1997) (erroneous exclusion of
evidence more probably than not affected the verdict when it
“deprived Morales of the only corroborating evidence she
had”). The fact-intensive nature of Barnett’s claim made
eyewitness testimony all the more critical. See United States
v. Hobbs, 31 F.3d 918, 923 (9th Cir. 1994) (the right to have
a witness is even more substantial where parties present
“conflicting, mutually-exclusive stories”). And while it is
possible that the prisoners would have steadfastly refused to
say anything even after the judge nudged, cajoled, and/or
threatened them, it is more likely that at least one of the three,
facing a federal judge and additional sanctions, would have
agreed to answer at least some of the questions.

   Finally, we recognize that the witnesses might indeed
have seen or heard nothing relevant, although were that the
case it seems they would have simply said so. It is also
possible that whatever testimony they might have offered
would have corroborated the defendants’ version of events.
We cannot know, because the magistrate judge did not try to
encourage their testimony.
14                      BARNETT V. NORMAN

    Given these facts, we cannot say it was “more probable
than not” that the jury was unaffected by the error. See Obrey
v. Johnson, 400 F.3d 691, 701–02 (9th Cir. 2005) (prejudice
occurs when erroneously excluded evidence was “not merely
tangential or cumulative” but “directly probative of the
central issues in dispute”).

                        IV. CONCLUSION

    Few witnesses want to testify, and if given the choice,
almost none would. Answering embarrassing questions or
reliving a traumatic event is a miserable experience, and
people surely have better things to do with their time. But
much like jury service, witness testimony is not optional in
our justice system—it is essential.

    When confronted with witnesses who refuse to testify
simply because they choose not to, a judge has a wide array
of tools—from the pillow of additional questions to the
sledgehammer of contempt—to ensure that witnesses provide
truthful testimony. Although use of these tools is within the
judge’s discretion, the magistrate judge here failed to exercise
her discretion in any way, and instead stated that she was
powerless. Because this error was not harmless, we reverse
the judgment of the district court and remand this case for a
new trial.3

     REVERSED and REMANDED.




  3
    In light of the issues in this case, the district court should carefully
consider appointing counsel for Barnett in future proceedings.
