Intimidating a Witness

Even seemingly benign conversations between criminal defendants and potential witnesses can result in an accusation of witness tampering.

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Interfering with a witness’s testimony or cooperation in a criminal case is a criminal act that can be misdemeanor or a felony. Intimidating or tampering with a witness involves trying to get a witness to lie, say certain things under oath, alter or destroy evidence, or not testify or cooperate with authorities at all. Examples include:

  • asking a witness to testify in a certain way, to lie, to not testify, to not report a crime or to not cooperate with police
  • offering a witness a bribe (money, material goods, or some other benefit)
  • threatening a witness with physical violence or property damage
  • threatening the witness’s family members or loved ones, and
  • preventing a witness from attending a legal proceeding, such as a court hearing or deposition.

Some states’ statutes criminalize intentionally influencing a witness by any means. Others require a use of force, threat of force, or use of intimidation or coercion. Under the first type of statute, simply asking a witness to testify in your favor constitutes witness tampering. The other statutes require that the person accused actually threatened or intimidated the witness.

Coercion and intimidation can involve threats other than physical violence or property damage. An employer could threaten an employee’s job or promise a promotion if the employee will testify in a certain way or refuse to testify. A witness also could be threatened with harm to his business or reputation.

Who Can Be Accused of Witness Tampering or Intimidation

The idea of witness tampering or intimidation probably brings to mind a defendant in a criminal case threatening a witness, but the defendant is not the only person who can be accused of or commit this crime. If a person threatens or tries to influence a witness’s testimony on behalf of the defendant or the prosecution, he has committed a crime. If a relative or friend of the defendant threatens a witness or someone involved in or supporting the prosecution tries to bribe a witness, for example, both have committed witness tampering.

If the defendant is involved in witness tampering committed by another person, he also can be charged with a crime. For instance, if the defendant pays someone to contact a witness or is involved in planning a threat or attack on a witness, he could be charged with witness intimidation or conspiracy to commit the crime.

Contact Between Defendants and Witnesses

In criminal cases, defendants often are ordered not to have contact with any witnesses while the case is pending.Even if the court does not forbid contact, this is a best practice because contact can lead to accusations of witness tampering, whether or not tampering actually occurred.

But what if a witness in a case is a party’s spouse, close relative, friend or co-worker? Criminal cases usually take several months to complete, if not years, and it simply is not realistic for people in close personal relationships not to have contact for such a long period. Lawyers often tell their clients not to talk about a case with anyone, but this also is not realistic if two people live together or were present at the same event and are involved in trial preparation together. Even if a witness denies being influenced by the defendant, another person or the prosecutor can accuse the defendant of improper influence.

One option is for the defendant and the witnesses to be very careful about discussing case strategy and testimony. For example, spouses or close relatives and friends might agree only to discuss the case when they are with the attorney providing representation in the case. If a relationship with a witness is more distant, such as a co-worker relationship, the defendant can make it a practice to talk with the other person only about matters pertaining to work. The defendant can even explain this to the other person that there will be no discussion about the case and certainly no attempt to influence the other person’s testimony.

Defendants can sometimes get themselves in trouble with the belief that talking things out with a witness may help resolve the matter or convince the witness to see things differently. A defendant should never do this alone (or without an attorney present) as it can easily result in the witness perceiving the conversation as an attempt to influence testimony.

Accusations of Witness Tampering

What if a witness in a criminal case tells the prosecutor that the defendant has tried to influence or interfere with the witness’s testimony? If a charge of witness tampering or intimidation is filed, the prosecutor will have to prove beyond a reasonable doubt that the accused intended to influence the witness’s testimony and engaged in acts listed in the state’s witness tampering or intimidation statute. A prosecutor can file charges based on the witness’s statements alone, but some kind of corroborating evidence is necessary to get a conviction.

Of course, if the witness made a recording of a conversation in which witness tampering took place or something in writing supports the allegation, it is likely the accused will be convicted. If the conversation was private, the witness’s testimony coupled with some small piece of evidence may be enough to secure a conviction, such as evidence that the defendant purchased a gun or began driving by a witness’s home shortly after threatening the witness. This is why it is so important that defendants not talk with witnesses alone, especially adverse witnesses.

Consult an Attorney

If you are accused of or charged with intimidating or tampering with a witness, you should consult an attorney immediately for assistance and advice in addressing the charges. If you are a defendant in a criminal case, talk with your attorney about this issue and any contact you may need or want to have with witnesses involved in the case. Be prepared to follow your attorney’s advice as this can protect you against additional criminal charges.

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