Intimidating a Witness

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

By , Attorney (Seattle University School of Law)
Updated February 08, 2023

Interfering with a witness's testimony or cooperation in a criminal case is a criminal act that can be a 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, deposition, or trial.

Some states' laws criminalize intentionally influencing a witness by any means. For example, if someone asked a friend not to testify or asked them to leave out damaging facts during their testimony, this can be witness tampering in some states.

But in other states, interference with a witness must involve the use of force, threat of force, intimidation, or coercion to be witness tampering. Coercion and intimidation can involve threats other than physical violence or property damage. For example, 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 their 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 isn't the only person who can be accused of committing this crime. If someone threatens or tries to influence a witness's testimony on behalf of the defendant or the prosecution, they've committed a crime. For example, if the defendant's relative threatens a witness, or if someone on the prosecution side tries to bribe a witness, both have committed witness tampering.

And if the defendant is involved in witness tampering committed by someone else, they can both be charged with a crime. For instance, if the defendant pays someone to contact a witness or is involved in planning a threat or assault on a witness, they could both be charged with witness intimidation or conspiracy to commit that crime.

Contact Between Defendants and Witnesses

In criminal cases, defendants are sometimes ordered not to have contact with any witnesses while the case is pending. Even if the court doesn't forbid contact, it's a good idea to avoid it anyway because it can lead to accusations of witness tampering, even if no tampering actually occurred.

But sometimes it's not practical for people to avoid contact with witnesses who also happen to be people in their lives. Below are some common situations that can arise when the defendant (or another party) knows one or more of the witnesses.

Can a Defendant Talk to a Witness They're Related to or Friends With?

Sometimes, a witness is a defendant's (or other party's) spouse, close relative, friend, or co-worker. Criminal cases usually take several months, if not years to complete, and it's just not realistic for people in close relationships to have no contact for such a long period.

Unless the defendant has been ordered to have no contact with witnesses, there's no rule that says they can't continue to live with or socialize with witnesses in their case. But because the prosecution often suspects at least the possibility of witness tampering when the defendant is close to the witness, it's important to set some ground rules for talking (or better yet, not talking) about the case (more on that later).

Can a Defendant Talk to a Victim?

Victims are often the key witnesses against a defendant. In some kinds of cases, courts often order defendants not to have any contact with the victim. If the defendant doesn't obey the order, they can be put in jail.

If there's no court order to stay away from the victim, it's still a good idea to have no contact with them. Charges of witness tampering can easily happen when the defendant (or someone on their behalf) talks to a victim about the case.

For example, imagine a domestic violence case where before trial, the defendant tries to get his wife to understand that when he pushed her down, it was an accident because he tripped. Even if the defendant believes that it was an accident, that's only his side of the story. The prosecution charged him because they believe it was on purpose. So, the defendant's discussion with his wife could look like an attempt to get her to testify a certain way, which could be viewed as witness tampering.

How to Avoid Witness Tampering

Lawyers often tell their clients not to talk about a case with anyone, and for good reason. Keeping quiet about the case not only guards against accusations of witness tampering, but also ensures that the defendant's statements to others won't be repeated on the stand at trial. (Anything a defendant says to someone else is usually admissible at trial unless it's a statement made to the police that violates Miranda or is involuntary.)

That said, it's often difficult to avoid any discussion about the case when people live together. And sometimes witnesses can be codefendants who are engaged in trial preparation with the defendant.

To avoid any problems, the defendant and the witnesses should be very careful about discussing case strategy and testimony. First and foremost, they should follow whatever the defendant's attorney says about even having such discussions. An attorney might ask spouses or close relatives and friends to agree to discuss the case only when they're with the attorney.

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 work-related matters. The defendant can even explain to people that they can't talk about the case. Keeping the topic off-limits can help avoid an accusation that the defendant tried to influence a witness's testimony.

Accusations and Charges of Witness Tampering

If a witness (or someone else) tells the prosecutor that the defendant has tried to influence or interfere with their testimony, the defendant could be charged with witness tampering or intimidation.

To prove the charge, the prosecutor will have to show beyond a reasonable doubt that the accused intended to influence the witness's testimony. They'll also have to prove any other elements that are listed in their state's witness tampering statute. For example, in a state that requires the defendant to use force or threat of force to be guilty, the prosecutor will have to prove the defendant engaged in that conduct, as well.

Often, the witness who was the victim of the alleged tampering will testify about what the defendant did to try to influence their testimony. If the jury believes the witness's account of tampering, they can be convicted on the witness's testimony alone. But a single witness's testimony might not be enough if there's any reason not to believe the witness. In cases where there's other evidence of intimidation (such as recordings, texts, or social media posts), the case can be tough to beat.

Suborning Perjury

Another potential charge that can arise from talking to witnesses is suborning perjury, which is getting someone to lie at trial. Consider the domestic violence example above. Let's say the husband persuades his wife to testify that the shove was accidental. But the prosecutor introduces a video that shows him deliberately shoving her to the ground. In that circumstance, it would be pretty clear that the wife lied on the stand. Assuming the prosecutor has enough evidence that the defendant got her to lie, he can be convicted of suborning perjury.

Consult an Attorney

If you are accused of or charged with witness intimidation or any other crime, you should talk with a lawyer immediately. An experienced, local criminal defense attorney should know whether any defenses apply and can help you navigate the criminal legal system.

No matter what you're charged with, be sure to get your lawyer's advice about speaking (or more likely not speaking) to potential witnesses. Your lawyer should be able to explain the issues that could arise with the witnesses in your case and advise you how to avoid inadvertently doing anything that could lead to witness tampering charges.

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