Colorado Criminal Lawyer Series Witness Tampering Laws 18-8-707- Crossing The Line
Colorado Criminal Lawyer Series Witness Tampering Laws 18-8-707- Crossing The Line – A responsible Colorado criminal defense lawyer knows when “preparation” of a witness crosses over into tampering with a witness or victim under C.R.S. 18-8-707. That same criminal defense lawyer needs to also hold the Deputy District Attorney, US Attorney or local City Prosecutor’s office to the highest standards when THEY cross the line in an effort to win at “all costs.”
This article discusses that line – when it is crossed – and what it can mean to the success or failure of a challenge to the case that is brought against the accused here in Colorado.
Understanding What IS and IS NOT Witness Tampering Is NOT Clear
In a recent case in the Colorado Court of Appeals – the Court held that advising a witness NOT to talk to the police was NOT Witness Tampering. The Colorado Court of Appeals, in the 2014 opinion of People v. Nozolino – explained witness tampering under Colorado Law.
Coercion Is Not an Element of Witness Tampering Under 18-8-707(1)(a)
Citing the watershed case of People v Cunefare, – the Court lays out in Nozolino the “identifying elements of witness tampering’ ..Essentially the crime of witness tampering requires an “intentional attempt to interfere with a witness’s testimony.”
When Is There Proof Of Witness Tampering Under Section 18-8-707 CRS?
It has been said that in enacting Section 18-8-707 – the state of Colorado criminalized “a wide range of activities related to interference with a witness or victim of a crime.” 18-8-707 – has the objective of providing several ways a person could interfere with the testimony of a witness. First – who is a witness?
A “witness” means any natural person:
(a) Having knowledge of the existence or non-existence of facts relating to any crime;
(b) Whose declaration under oath is received or has been received as evidence for any purpose;
(c) Who has reported any crime to any peace officer, correctional officer, or judicial officer;
(d) Who has been served with a subpoena issued under the authority of any court in this state, of any other state, or of the United States; or
(e) Who would be believed by any reasonable person to be an individual described in paragraph (a), (b), (c), or (d) of this subsection (2).
The Law – 18-8-702(2) does NOT require proof that the witness or victim be under legal process. (subpoened)
Three Forms Witness Tampering Under Section 18-8-707
The law creates three specific forms of witness tampering – each is different from the other and each requires proof of all of the elements beyond a reasonable doubt for a conviction.
Section 18-8-707(1)(a) prohibits the defendant from inducing or attempting to induce a witness or victim to “testify falsely or unlawfully withhold any testimony.
Section 18-8-707(1)(b) prohibits the defendant from inducing or attempting to induce a witness or victim to absent himself from any proceeding to which he has been legally summoned;
Section 18-8-707(1)(c) prohibits the defendant from inducing or attempting to induce a witness or victim to “avoid legal process summoning him to testify.
Under Section 1 (a) – There Must Be Proof Of Interference With `Actual Testimony’
To prove section 1 (a) there must be evidence of “an attempt to interfere with actual testimony,” which is defined as testimony that is “anticipated to be offered at a hearing, trial, or other proceeding where witnesses would be sworn.”
Unlike this subsection there is no requirement that the witness or victim has been legally summoned to appear at the proceeding – the DA needs to prove, however, that defendant attempted to influence a witness or victim “to testify falsely or unlawfully withhold testimony.”
Testimony is defiend as including oral or written statements, documents, or any other evidence that may be offered by or through a witness in an official proceeding. § 18-8-601, C.R.S. There is no requirement that a statement be a sworn statement to qualify as testimony and the witness need only be “in a position such that he or she may offer testimony in an official proceeding.”
Is defined as it is in the Colorado Intimidating a Witness statute:
A person commits intimidating a witness or victim if, by use of a threat … he intentionally attempts to [ ][i]nfluence the witness or victim to testify falsely or unlawfully withhold any testimony. § 18-8-704, C.R.S.
Not Only Need the Witness Not Be Under Subpoena or Process But..
Under (1)(a), the most commonly brought section of the law, a defendant need not succeed in interfering with actual testimony of the victim or witness.
The Actual Elements Of Section 18-8-707(1)(a)
The jury was instructed that the elements of the crime at trial are:
1. the defendant,
2. in the State of Colorado, at or about the date and place charged,
4. attempts, without bribery or threats,
5. to induce a witness or a victim, or a person he believes is to be called to testify as a witness or victim in any official proceeding to,
6. testify falsely or to unlawfully withhold any testimony.
A Serious Crime – A Class Four (4) Felony (two to six years in the Department Of Corrections)
Responsible Colorado Criminal Defense Attorneys are very aware of the Tampering with a Witness or Victim Law. (C.R.S. 18-8-707). This crime is charged in cases where the prosecutor may be trying to salvage a weak case. This charge is often brought for vindictive reasons. But haveing said that defendants, prosecutors, defense attorneys, and others involved in the Colorado criminal justice system must be intelligent in the methods used to handle witnesses.
Conclusion – Colorado Witness Tampering Laws 18-8-707
Influencing a witness to do anything but tell the truth in a trial is very dangerous. While investigators, lawyers, prosecutors and criminal defense attorneys across Colorado interact with witnesses – for the purpose of preparing them to testify – they must all be keenly aware not to run afoul of Colorado’s witness tampering laws.
Witness preparation is essential to win at trial. What is sometimes called “horse shedding” or “wood shedding,” (which referred to the use of carriage houses behind the courthouse for last minute witness preparation) – the effective use of witness preparation – (which I write about in a separate article).. is critical. First there is the investigation and “discovery” stage – where the lawyer gathers facts and determines the strategy of the case. Next there is the pre-trial witness preparation stage, which builds upon an thorough understanding of the ALL of the facts and evidence of the case. Finally there is the culmination of these into an acquittal at trial.
Colorado Criminal Lawyer Series Witness Tampering Laws 18-8-707- Crossing The Line
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..and all the other cities and counties of Colorado along the I-25 Corridor… on cases involving the subject of this article -Colorado Criminal Lawyer Series Witness Tampering Laws 18-8-707- Crossing The Line.