Witness tampering is the act of attempting to improperly influence, alter or prevent the testimony of witnesses withincriminal or civil proceedings.
Witness tampering and reprisals against witnesses inorganized crime cases have been a difficulty faced by prosecutors;witness protection programs were one response to this problem.[1]
In the United States, thefederal crime of witness tampering is defined by statute at18 U.S.C. § 1512, which is entitled "tampering with a witness, victim, or an informant."[2][3] The statute is broad; theJustice Manual notes that it "proscribes conduct intended to illegitimately affect the presentation of evidence in Federal proceedings or the communication of information to Federal law enforcement officers" and applies to tampering with witnesses in "proceedings beforeCongress, executive departments, and administrative agencies, and to civil and criminal judicial proceedings, includinggrand jury proceedings."[3] Witness tampering is a crime even if a proceeding is not actually pending,[3][2] and even if the testimony sought to be influenced, delayed, or prevented would not be admissible in evidence.[2] Section 1512 also provides that the federal government hasextraterritorial jurisdiction to prosecute the offenses described by the section.[2][3]
Witness tampering is a criminal offense even if the attempt to tamper is unsuccessful.[3] The offense also covers the intimidation of not only a witness themselves, but also intimidation of "another person" (i.e., a third party, such as a witness's spouse) in order to intimidate the witness.[3]
Section 1512 was created as part of the Victim and Witness Protection Act of 1982 (VWPA). Before that time, federal prosecutions "for attempting to or succeeding in corruptly influencing or intimidating witnesses" were prosecuted under the generalobstruction of justice statute,18 U.S.C. § 1503.[4] VWPA established section 1512 to address the specific witness tampering issue, and simultaneously removed references to witnesses from section 1503.[4][5] This led to uncertainly about whether witness tampering can now be exclusively prosecuted as a federal crime under section 1512, or whether it may also be prosecuted under section 1503 as an alternative or additional charge; thecourts of appeals aresplit on this question.[4][5]
Notable people in the United States convicted of witness tampering include formerSouth Dakota State RepresentativeTed Klaudt,[6] political operativeRoger Stone,[7] real estate developerCharles Kushner,[8] andNine Trey Gangsters figure Laron Spicer.[9]
Witness tampering viabribery is not covered by 18 U.S.C. § 1512, but is rather prohibited by a different statute, 18 U.S.C. § 1510.[3] Witness tampering is also a crime under state laws, although the statutory details vary.[10]
InEngland and Wales, witness intimidation is one form of the crime ofperverting the course of justice.[11] Section 51 of theCriminal Justice and Public Order Act 1994 includes the offences of intimidating a witness and taking revenge on a witness.[12] TheSerious Organised Crime and Police Act 2005 provides for protections for witnesses at risk of intimidation.[11]
In 2016,Jean-Pierre Bemba, a politician fromDemocratic Republic of the Congo, was convicted of witness tampering in theInternational Criminal Court. Bemba had separately been convicted ofcrimes against humanity andwar crimes arising from atrocities committed in the Central African Republic in 2002 and 2003, for which he was sentenced to 18 years in prison.[13]
Economics have analyzed witness intimidation, which is one form of witness tampering, in terms of "strategic complexity and two-sided uncertainty: criminals cannot know whether threats will deter witnesses, and witnesses cannot know whether threats will be carried out."[14] Economists Brendan O'Flaherty and Rajiv Sethi created amodel of this problem and suggest that in places where witness intimidation is a serious problem, "communities can be trapped in equilibrium with collective silence: no witness testifies because none expects others to testify."[14]
