When can asking a friend to help be charged as “witness tampering”?
The most common response for most people when facing a problem is to call a friend. Sometimes this call is just for someone to talk to and someone to sympathize with your situation. Other times this call is intended to seek some sort of practical help with the problem at hand.
Tragically, in too many domestic violence cases, a simple call to a friend seeking help can result in charges of witness tampering. Make no mistake: These are serious charges. A conviction for witness tampering can result in up to a year in state prison and other penalties.
How is this possible? What can you do to defend yourself against these charges and avoid a conviction? It is critical to understand how the California Penal Code defines witness tampering and how the statute applies in real-life cases, so you can avoid these charges and fight to avoid a conviction.
Witness tampering is outlined in California Penal Code (CPC) 136.1.
Although the statute is complicated and nuanced, the basic idea is that a prosecutor needs to establish that the defendant knowingly and maliciously attempted to prevent or dissuade someone (whether a witness or a victim) from reporting a crime, assisting in the prosecution of a crime, assisting in the process of arrest for the crime or appearing to testify regarding the crime.
These are the basic elements of witness tampering in California. The crime can bring a year in prison with a conviction, and the penalties increase with a showing of violence, threats and other aggravating factors.
Witness tampering in the context of domestic violence charges
In the context of a domestic violence case, witness tampering can include:
- Trying to convince the alleged victim to not call the police or tell them what happened
- Trying to convince the alleged victim to not testify in court
- Trying to convince or persuade a witness to not call the police or tell them what happened
- Trying to convince a witness to lie about the facts of the case
These are just a few examples of tampering. It is important to note that many commonplace scenarios could be construed as witness tampering.
For example, after a fight with your spouse or significant other, you reconcile, and things are cooled down. Then you ask that person to “go easy on you” by downplaying the incident with the police or the judge, or by lying to the authorities to help you avoid being convicted of domestic violence.
It might be hard to believe, but a simple conversation like that, if it somehow came to light, could be construed as witness tampering under the CPC.
What this means for you
This is purely human nature: You are facing serious criminal charges, so you call a friend to commiserate and to ask that person to “put in a good word for you” or to “not mention” a certain instance that could be seen as incriminating. The next thing you know you are facing a possible year in prison in addition to the domestic violence charges you are already facing.
This is a serious situation, indeed. If you are reading this before you have talked to anyone, don’t call that friend for help with your domestic violence charges, as it could have serious consequences.
If you already made the call and are facing tampering charges, the most important thing you can do is fight back aggressively. An experienced legal team that handles these cases can help defend your rights and interests against these charges and help you avoid prison.
Aggressive defense against tampering charges
There are numerous ways to fight tampering charges in court. The statute itself provides some possibilities for getting out from under a charge like this:
- Knowledge and malice: For a conviction, the prosecutor has to show that you “Knowingly and maliciously prevented or dissuaded.” In many cases, the words used by the defendant suggest lack of knowledge and certainly lack of malice. “I sure wish you wouldn’t tell the police about that” could easily be argued to be free from malice or knowledge. A person saying that might not expect the words would have any persuasive or dissuasive impact.
- Protection of the witness or victim: According to the statute, a family member who tries to dissuade a witness from giving testimony, assisting at trial, etc., “shall create a presumption that the act was without malice” This means that if you were trying to protect either a witness or victim in your efforts to convince them not to testify, you are presumed to be without malice in doing so. Without malice, the prosecutor lacks all the essential elements needed for a tampering conviction.
There are numerous other potential defenses against tampering charges. The most important thing for you to do is fight back aggressively with a legal team committed to defending your rights. Attorney Mark Deniz is a former prosecutor who knows how to dismantle charges like this. The legal team at the Premier Domestic Violence Law Group can help you.