Witness Tampering

When you're a party to a criminal or civil trial, you're generally prohibited from directly communicating with any witness, informant, or victim. These rules are in place to protect those who are testifying from harassment or threats, as well as to encourage the free flow of information in court.

Witness tampering occurs when someone attempts to cause a person to testify falsely, withhold testimony or information, or be absent from any proceeding to which the witness has been summoned. You don't have to be a party to the criminal or civil action to be charged with witnesses tampering. Here's what you need to know about the law on witness tampering.

Elements of the Offense

State statutes and federal law breakdown witness tampering in slightly different ways. It can vary from altering a witness' testimony no matter the means, to only criminalizing outright intimidation, coercion, or use of force. 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 for the crime can differ by jurisdiction, the common elements are as follows:

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

An actual obstruction isn't necessary as an element of proof. It's enough that the defendant performed the action to tamper with a witness.

Unlawful Conduct Toward a Witness

Witness tampering can take many forms, and will 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 type of 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, tone and gestures can combine such that threats of physical force constitute 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, and blackmailing or bribing a witness and attempts to keep a witness from testifying.

Penalties for Witness Tampering

The degree of punishment for witness tampering is proportional to the seriousness of the criminal behavior. A person convicted of having a witness killed can be sentenced to life imprisonment, while a person convicted of harassing a witness into testifying untruthfully won't be punished by more than one year of imprisonment.

Depending on the circumstances of the case, witness tampering can be charged as a misdemeanor or a felony. The following are sample punishments for this crime:

• Federal witness intimidation is punishable by up to 20 years in federal prison and a fine of up to $250,000.
• Using physical force to intimidate a federal witness results in a federal prison sentence of up to 30 years.
• State witness tampering without physical force is punishable by up to 10 years in state prison and a $4,000 fine.

Defenses Against a Criminal Charge

When charged with a crime, you're innocent until guilt is established beyond a reasonable doubt. Below is a brief list of available defenses for fighting a witness tampering charge:

• Truth Seeking: If the intent of the accused's conduct was to encourage or cause the witness to testify truthfully, and the conduct toward the witness was lawful, then the accused did not engage in an unlawful act.
• Lack of Intent: This a specific intent crime that requires a person to specifically intend to hinder, delay, or prevent the communication of information regarding a crime to law enforcement officer.
• False Accusation: If the alleged act or conversation didn't occur, you can claim a defense of false accusation.
• Insufficient Evidence: All the elements of the crime must be proven beyond a reasonable doubt. A defense of insufficient evidence means a prosecutor can't prove the criminal case beyond a reasonable doubt due to a lack of evidence.

Accused of Witness Tampering? An Attorney Can Help

It's incredibly stressful to be faced with criminal charges. Fortunately, there are defense strategies that may be available to you depending on the nature of your case and the individual facts. Protect your interests by speaking with an experienced criminal defense attorney today.