Witness Tampering

When you're involved in a criminal or civil action, the court may bar you from directly communicating with any witness, informant, or victim. These rules are in place to protect those who are testifying from harassment or threats. They also encourage the free flow of information in court.

Witness tampering happens when someone tries to influence a witness. The goal is to get the witness to make a false statement. The crime can also involve pressure to withhold testimony or evidence or to miss a court proceeding. Law enforcement officers may bring witness tampering charges against a party, another witness, or anyone who attempts to intimidate or improperly influence a witness.

This article describes the criminal offense of witness tampering. It will discuss the elements of the crime and offer examples of illegal conduct. The article will present relevant federal and state laws and discuss legal defenses.

Elements of the Offense of Witness Tampering

State statutes and federal law break down witness tampering in slightly different ways. It can vary from altering a witness's testimony (no matter the means) to outright intimidation or coercion. The use of force or threats may elevate the degree of the offense. What's the same in all cases is that the government must prove all elements of witness tampering beyond a reasonable doubt for a conviction.

Although the elements of the crime can differ by jurisdiction, the common elements include:

1. The defendant tries to make a person testify falsely or withhold testimony or evidence
2. The defendant had reason to believe that the person was a witness or may have relevant information
3. The information was relevant to a crime or civil action

The crime does not have to end in obstruction of justice or perjury. It's enough that the defendant attempts tampering with a witness.

Common Misconduct In Witness Tampering

Witness tampering can take many forms. The definitions vary based on whether the proceeding is under state or federal law. It's best not to think of prohibited actions as a narrow list but any action that falls into the following categories:

• Physical Force: Using any physical force to keep a witness from testifying is prohibited and commonly results in felony charges. Confinement is considered a use of force.
• Threatened Physical Force: Words, tones, and gestures can combine so that threats of physical force are unlawful conduct. Shaking your fist at someone while saying you will knock them senseless if they testify against you would likely qualify as witness tampering.
• Corrupt Persuasion: Prohibited behavior includes persuading a witness to change their testimony. It also includes blackmailing or bribing a witness and other attempts to keep a witness from testifying.

Federal and State Crime and Penalties

The degree of punishment for witness tampering is proportional to the seriousness of the criminal behavior. Based on the circumstances, a witness tampering charge can become a misdemeanor or a felony.

The federal crime of witness tampering (18 U.S.C. Section 1512) includes several variations. Section 1512 focuses on tampering with a witness, victim, or informant. There are separate federal crimes for retaliating against a witness and trying to influence a juror. If the crime ends in the witness's death, then the government may pursue charges of murder. 

Federal crimes proceed in federal court. Prosecutors work for the U.S. Department of Justice. Federal government investigations can take months, and prosecutors don't tend to rush their cases.

As most crimes in the U.S. proceed through state and local criminal justice agencies, initial investigations and arrests often happen at this level. Felony offenses can go to a grand jury within days or weeks of an arrest. Judicial proceedings such as the pretrial and trial will follow. As a result, most cases of witness tampering will happen before state and local court proceedings. Tampering may happen immediately before, during, or after a court proceeding.

Ohio law gives an example of state law in this area. Ohio has two offenses related to witness tampering. The first is the crime of intimidation. The second is the crime of intimidation of an attorney, victim, or witness in a criminal case or delinquency proceeding. The intimidation statute in Ohio Revised Code Section 2921.03 focuses on civil court proceedings. It provides that no person:

• knowingly and by force; by unlawful threat of harm; by filing, recording, or using a false writing
• shall attempt to influence, intimidate, or hinder
• a public servant, a party official, or an attorney or witness in a civil action or proceeding
• from the discharge of that person's duties

This offense is a third-degree felony. Upon conviction, an offender can face from nine to 36 months in state prison, a fine of up to $10,000, or both.

In its criminal witness intimidation statute, found in Ohio Revised Code Section 2921.04, the state has a misdemeanor and a felony offense. The first-degree misdemeanor intimidation charge bars anyone from knowing attempts to intimidate or hinder a victim of a crime or delinquent act (juvenile offense) in filing or prosecuting the case. It also bans any knowing effort to intimidate a witness. Upon conviction, an offender may face up to six months in jail, a fine of up to $1,000, or both.

The third-degree felony offense in this statute says that no person knowingly and by force, by unlawful threat of harm, or by unlawful threat to commit any offense against any person shall attempt to influence, intimidate, or hinder any of the following persons:

1. The victim of a crime or delinquent act
2. A witness to a criminal or delinquent act
3. An attorney involved in any criminal or delinquency proceeding

If convicted, an offender can face from nine to 36 months in state prison, a fine of up to $10,000, or both. Judges have discretion in sentencing and can weigh any mitigating or aggravating factors for probation or prison. They will often review an offender's criminal record before sentencing. A significant history of illegal activity may lead to a harsher outcome, including a prison sentence.

Defenses Against a Criminal Charge

When charged with a crime, you're presumed innocent until you plead guilty, or a judge or jury finds you guilty. The legal process requires the state to prove each element of the crime beyond a reasonable doubt to get a conviction. Anyone facing a jailable offense, such as witness tampering, also has a right to a criminal defense lawyer. If they cannot afford a lawyer, the court can appoint one for their defense.

Below is a brief list of available defenses for fighting a witness tampering charge:

• Truth Seeking: If the defendant's conduct intended to encourage or cause the witness to testify truthfully, and the behavior toward the witness was lawful, then the accused can claim they did not commit a crime.
• Lack of Intent: This is a specific intent crime that requires a person to intend to hinder, delay, or prevent the communication of information about a crime to law enforcement officers. The defense may claim there is no such intent.
• False Accusation: If the alleged act or conversation didn't happen, the defendant can claim the state's case is based on a false accusation.
• Insufficient Evidence: All the elements of the crime must be proven beyond a reasonable doubt. A defense of insufficient evidence will claim a lack of evidence on one or more key elements of the crime.

Witness Tampering in Domestic Violence Cases

When most people think of witness tampering, they think of organized crime or those involved in major drug crimes or human trafficking. Unfortunately, crime victims and witnesses in such cases often face pressure. Victims may try to dismiss criminal charges. Witnesses or informants may get cold feet due to intimidation or threats to family members.

Domestic violence crimes also involve an unusual amount of victim and witness tampering, often by the offender who faces charges. Most cases of domestic violence involve intimate partners such as spouses, couples who live together, or couples who have a child in common. As a result, their relationship does not end simply by the fact the police arrive on the scene of a domestic dispute or arrest someone for battery.

Domestic abusers may start harassing a victim before the police arrive, stating they should not answer the door or give a statement. If an arrest happens, an abuser in jail will call the victim, often before the victim meets with a prosecutor. Some will apologize and offer to improve if the victim "drops" charges, recants, or fails to cooperate. Others will make subtle or direct threats about the victim's safety. When parties have children, abusers may threaten to contact child protective services and have the children taken from the victim. Intimidation of a domestic violence victim may also come through other family members or friends. This is more likely when the victim has a protection order.

Many acts of witness tampering in a domestic violence case never proceed to criminal charges. In some states, prosecutors decide whether to take the case to trial with or without the victim's cooperation. They may not learn of witness tampering until the eve of trial. In such situations, they may not have the resources to bring witness tampering charges forward.

Concerned About Witness Tampering? Get Legal Help

Witness tampering is a serious crime. Victims or witnesses who experience tampering should contact the police or notify the prosecutor. There may be steps the authorities can take to address these actions and make sure your safety is a priority.

If you face accusations of witness tampering, seek legal help. There may be legal defenses available depending on the facts of your case. In an initial meeting with a criminal defense attorney, you can discuss your rights and decide the best action.