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Bribing, Intimidating, Interfering and Retaliating Against Witnesses In Michigan: Legal Grounds and Penalties

The outcome of legal, governmental and administrative proceedings often turns on the appearance and testimony of crucial witnesses. Some people with incredible stakes in the outcome of these proceedings might be tempted to use tactics to threaten, frighten or otherwise convince witnesses to stay away from the hearing or provide false testimony. Not only does this behavior tend to subvert the function of the justice system but it is an illegal criminal act punishable by severe penalties under the law.  Michigan's witness tampering statute outlines several distinct crimes under the law:

WITNESS BRIBERY

An individual is guilty of witness bribery in Michigan, contrary to MCL 257.122(1), if the prosecutor can prove all of the following beyond a reasonable doubt (See Model Criminal Jury Instruction 37.3):

  • First, that the witness was testifying, or going to testify, or going to provide information at an ongoing or future official proceeding. An official proceeding is a proceeding heard by a legislative, judicial, administrative, or other governmental agency or official authorized to hear evidence under oath.
  • Second, that the defendant gave, offered to give, or promised to give anything of value to the witness.
  • Third, that, when the individual gave, offered to give or promised to give something of value to the witness, he or she intended to discourage the witness from attending the proceeding, testifying at the proceeding, or giving information at the proceeding, influence the witness's testimony at the proceeding, encourage the witness to avoid legal process, withhold testimony, or testify falsely. It does not matter whether the official proceeding took place, as long as the defendant knew or had reason to know that the witness could be or was going to provide information at the ongoing or future proceeding.

However, witness bribery DOES NOT include the following activities:

  • Reimbursement or payment of reasonable costs for any witness to provide a statement to testify truthfully or provide truthful information in an official proceeding as provided by statute or court rule (e.g. witness fee and mileage). MCL 750.122(2).
  • The lawful conduct of an attorney in the performance of his or her duties, such as advising a client. MCL 750.122(5)(a).
  • The lawful conduct or communications of a person as permitted by statute or other lawful privilege. MCL 750.122(5)(b).
  • It is an affirmative defense, which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant's sole intention was to encourage, induce, or cause the other person to testify or provide evidence truthfully. MCL 750.122(4).

The penalties for witness bribery are as follows:

  • Unless otherwise provided, the penalty is a felony conviction punishable by up to 4 years in prison or a fine up to $5,000.00, or both. MCL 750.122(7)(a).
  • If the violation is committed in a criminal case for which the maximum term of imprisonment for the violation is more than 10 years, or the violation is punishable by imprisonment for life or any term of years, the penalty is a felony conviction punishable by up to 10 years in prison or a fine up to $20,000.00, or both. MCL 750.122(7)(b).
  • If the violation involves committing or attempting to commit a crime or a threat to kill or injure any person or to cause property damage, the penalty is a felony conviction punishable by up to 15 years in prison or a fine up to $25,000.00, or both. MCL 750.122(7)(c).
  • The court may order imprisonment to be served CONSECUTIVELY to a term of imprisonment for any other violation of law arising out of the same transaction. MCL 750.122(11).

WITNESS INTIMIDATION

An individual is guilty of witness intimidation in Michigan, contrary to MCL 257.122(3), if the prosecutor can prove all of the following beyond a reasonable doubt (See Model Criminal Jury Instruction 37.4):

  • First, that the witness who was testifying, or going to testify, or going to provide information at an ongoing or future official proceeding. An official proceeding is a proceeding heard by a legislative, judicial, administrative, or other governmental agency or official authorized to hear evidence under oath.
  • Second, that the defendant threatened or tried to intimidate the witness. A threat is a written or spoken statement that shows an intent to injure another person, or that person's property or family. No particular words are necessary, and it can be said or written in vague terms that do not state exactly what injury will occur. But it must be definite enough so that a person of ordinary intelligence would understand it as a threat.
  • Third, that, when the defendant threatened or tried to intimidate the witness, he or she intended to discourage the witness from attending the proceeding, testifying at the proceeding, or giving information at the proceeding, influence the witness's testimony at the proceeding, encourage the witness to avoid legal process, withhold testimony, or testify falsely. It does not matter whether the official proceeding took place, as long as the defendant knew or had reason to know that witness could be or was going to provide information at the ongoing or future proceeding.

However, witness intimidation DOES NOT include the following activities:

  • The lawful conduct of an attorney in the performance of his or her duties, such as advising a client. MCL 750.122(5)(a).
  • The lawful conduct or communications of a person as permitted by statute or other lawful privilege. MCL 750.122(5)(b).
  • It is an affirmative defense, which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant's sole intention was to encourage, induce, or cause the other person to testify or provide evidence truthfully. MCL 750.122(4).

The penalties for witness intimidation are as follows:

  • If the violation is committed in a criminal case for which the maximum term of imprisonment for the violation is more than 10 years, or the violation is punishable by imprisonment for life or any term of years, the penalty is a felony conviction punishable by up to 10 years in prison or a fine up to $20,000.00, or both. MCL 750.122(7)(b).
  • If the violation involves committing or attempting to commit a crime or a threat to kill or injure any person or to cause property damage, the penalty is a felony conviction punishable by up to 15 years in prison or a fine up to $25,000.00, or both. MCL 750.122(7)(c).
  • A conviction for witness intimidation does not prohibit a person from being charged with, convicted of, or punished for any other violation of law arising out of the same transaction. MCL 750.122(10)
  • The court may order imprisonment to be served CONSECUTIVELY to a term of imprisonment for any other violation of law arising out of the same transaction. MCL 750.122(11).

WITNESS INTERFERENCE

An individual is guilty of witness interference in Michigan, contrary to MCL 257.122(6), if the prosecutor can prove all of the following beyond a reasonable doubt (See Model Criminal Jury Instruction 37.5):

  • First, that the witness was testifying, or going to testify, or going to provide information at an ongoing or future official proceeding. An official proceeding is a proceeding heard by a legislative, judicial, administrative, or other governmental agency or official authorized to hear evidence under oath.
  • Second, that the defendant impeded, interfered with, prevented, or obstructed the witness from attending, testifying, or providing information, or tried to impede, interfere with, prevent, or obstruct the witness. It does not matter whether the official proceeding took place, as long as the defendant knew or had reason to know that the witness could be at the proceeding.
  • Third, that the defendant intended to impede, interfere with, prevent or obstruct the witness from attending, testifying at, or providing information at the official proceeding.

The penalties for witness interference are as follows:

  • Unless otherwise provided, the penalty is a felony conviction punishable by up to 4 years in prison or a fine up to $5,000.00, or both. MCL 750.122(7)(a).
  • If the violation is committed in a criminal case for which the maximum term of imprisonment for the violation is more than 10 years, or the violation is punishable by imprisonment for life or any term of years, the penalty is a felony conviction punishable by up to 10 years in prison or a fine up to $20,000.00, or both. MCL 750.122(7)(b).
  • If the violation involves committing or attempting to commit a crime or a threat to kill or injure any person or to cause property damage, the penalty is a felony conviction punishable by up to 15 years in prison or a fine up to $25,000.00, or both. MCL 750.122(7)(c).
  • A conviction for witness interference does not prohibit a person from being charged with, convicted of, or punished for any other violation of law arising out of the same transaction. MCL 750.122(10).
  • The court may order imprisonment to be served CONSECUTIVELY to a term of imprisonment for any other violation of law arising out of the same transaction. MCL 750.122(11).

WITNESS RETALIATION

An individual is guilty of witness retaliation in Michigan, contrary to MCL 257.122(8), if the prosecutor can prove all of the following beyond a reasonable doubt (See Model Criminal Jury Instruction 37.6):

  • First, that the witness was at an official proceeding. An official proceeding is a proceeding heard by a legislative, judicial, administrative, or other governmental agency or official that is authorized to hear evidence under oath. It does not matter whether the official proceeding took place, as long as the defendant knew or had reason to know that witness could be or was going to provide information at the ongoing or future proceeding.
  • Second, that the defendant retaliated, attempted to retaliate, or threatened to retaliate against the witness. Retaliate means to commit or attempt to commit a crime against the witness, or to threaten to kill or injure any person, or to threaten to cause property damage to the witness.

The penalties for witness retaliation are as follows:

  • A felony conviction punishable by up to 10 years in prison or a fine up to $20,000.00, or both.
  • A conviction for witness retaliation does not prohibit a person from being charged with, convicted of, or punished for any other violation of law arising out of the same transaction. MCL 750.122(10).
  • The court may order imprisonment to be served CONSECUTIVELY to a term of imprisonment for any other violation of law arising out of the same transaction. MCL 750.122(11).

As the Michigan Court of Appeals noted in People v Greene, 255 Mich App 426; 661 NW2d 616 (2003), this witness tampering statute has four parts with distinct elements, penalties and defenses intended to address a broad range of conduct. Note that the exceptions for an attorney's legal advice, confidential privileges and compelling a witness to appear for truthful testimony DO NOT apply to witness interference and witness retaliation (mainly because this conduct goes beyond words and involves actual obstruction or revenge). Therefore, it is very important to consider all four crimes separately before jumping to conclusions that you are protected by an affirmative defense that does not apply. Consulting with an experienced criminal defense lawyer is advisable before misapplying the law.

If you have questions about the witness tampering statute or any other aspect of criminal law, do not hesitate to contact the attorneys at Kershaw, Vititoe & Jedinak PLC.

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