# Is telling a witness not to testify witness tampering? **URL:** \ **Category:** Factual Questions\ **Created:** [August 14, 2023, 5:14pm UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568 "2023-08-14T17:14:05Z")\ **Posts on this page:** 19\ **Page:** 2
**Author:** ![JHuff](https://avatars.discourse-cdn.com/v4/letter/j/b3f665/32.png) [@JHuff](https://boards.straightdope.com/u/JHuff)\ **Post date:** [August 16, 2023, 6:25pm UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/21 "2023-08-16T18:25:19Z")
I agree, but also there’s a lot of different definitions of “corruptly” and I dont know if the Oxford dictionary one I quoted is the accepted legal definition if the word. Here’s an example of what I mean. [4.12 Corruptly | Model Jury Instructions](https://www.ce9.uscourts.gov/jury-instructions/node/862#:~:text=%C2%A7%207212(a)%20)(making,benefit%20for%20oneself%20or%20another. In that document, there are multiple examples of real cases where the judge defined the word “corruptly” in different ways. One example was “performed with the intent to secure an unlawful benefit for oneself or another”, which almost certainly covers the hypothetical scenario we’re discussing. But in that same link there’s an example case that goes the opposite way. And here I’ll post the entire snippet because its super relevant to our topic. "In United States v. Sanders, 421 F.3d 1044 (9th Cir. 2005), the Ninth Circuit noted it had not yet ruled as to whether a defendant violates 18 U.S.C. § 1512(b) when he “corruptly persuades” others to invoke their Fifth Amendment right to remain silent. Id. at 1050-51. The Ninth Circuit has held, however, that a defendant does not act “corruptly” within the meaning of § 1512 when she non-coercively persuades a witness to exercise a legal privilege not to testify. United States v. Doss, 630 F.3d 1181, 1189-90 (9th Cir. 2011). “[T]here is a difference in approach among the circuits about whether merely attempting to persuade a witness to withhold cooperation or not to disclose information to law enforcement officials—as opposed to actively lying—falls within the ambit of § 1512(b).” United States v. Khatami, 280 F.3d 907, 913 (9th Cir. 2002). " So there you have it… “there is a difference in approach among the circuits”. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [August 16, 2023, 6:45pm UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/22 "2023-08-16T18:45:22Z")
> [@TriPolar](#): > > > [@Moriarty](#): > > > > You could encourage, cajole, beg, plead, sweet talk, implore, or otherwise explain why it would be best if you didn’t participate, and it would be a crime. > > None of those are in the OP. I don’t know why everyone is beating around the bush. There is nothing wrong with asking a FQ question about a political person as long as the answer and question aren’t political and stick to the facts. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [August 16, 2023, 6:55pm UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/23 "2023-08-16T18:55:13Z")
> [@JHuff](#): > > I agree, but also there’s a lot of different definitions of “corruptly” and I dont know if the Oxford dictionary one I quoted is the accepted legal definition if the word. > > Here’s an example of what I mean. > > [4.12 Corruptly | Model Jury Instructions](https://www.ce9.uscourts.gov/jury-instructions/node/862#:~:text=%C2%A7%207212(a)%20)(making,benefit%20for%20oneself%20or%20another. > > In that document, there are multiple examples of real cases where the judge defined the word “corruptly” in different ways. > > One example was “performed with the intent to secure an unlawful benefit for oneself or another”, which almost certainly covers the hypothetical scenario we’re discussing. > > But in that same link there’s an example case that goes the opposite way. And here I’ll post the entire snippet because its super relevant to our topic. > > "In United States v. Sanders, 421 F.3d 1044 (9th Cir. 2005), the Ninth Circuit noted it had not yet ruled as to whether a defendant violates 18 U.S.C. § 1512(b) when he “corruptly persuades” others to invoke their Fifth Amendment right to remain silent. Id. at 1050-51. The Ninth Circuit has held, however, that a defendant does not act “corruptly” within the meaning of § 1512 when she non-coercively persuades a witness to exercise a legal privilege not to testify. United States v. Doss, 630 F.3d 1181, 1189-90 (9th Cir. 2011). “[T]here is a difference in approach among the circuits about whether merely attempting to persuade a witness to withhold cooperation or not to disclose information to law enforcement officials—as opposed to actively lying—falls within the ambit of § 1512(b).” United States v. Khatami, 280 F.3d 907, 913 (9th Cir. 2002). " > > So there you have it… “there is a difference in approach among the circuits”. The case that is currently in the news involves a county grand jury and potential state charges. The case you cited deals with federal code. That may change things. I’m not sure about Georgia law and caselaw. There is another investigation in DC which is a federal court that might come into play. ---
**Author:** ![Horatius](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/horatius/32/3572_2.png) [@Horatius](https://boards.straightdope.com/u/Horatius)\ **Post date:** [August 16, 2023, 7:09pm UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/24 "2023-08-16T19:09:13Z")
> [@JHuff](#): > > I agree, but also there’s a lot of different definitions of “corruptly” “Corruptly” is only one aspect of that law. You’re ignoring this part: “or engages in misleading conduct toward another person”. The whole, “I never knew him, he’s part of the witch hunt” part is misleading conduct. Plus, there’s this part: “Whoever knowingly uses intimidation, threatens,” A well-known person with a history of followers committing violence directly refers to a witness by name. That’s certainly intimidation, and is arguably a veiled threat. And using intimidation and/or threats is almost certainly “corrupt” by any reasonable definition. And, as Trump keeps reminding us, he’s the leading candidate in the GOP primary race, which pretty much by definition puts him in a more powerful position than any regular citizen. He’s abusing that power to corruptly influence a witness. ---
**Author:** ![JHuff](https://avatars.discourse-cdn.com/v4/letter/j/b3f665/32.png) [@JHuff](https://boards.straightdope.com/u/JHuff)\ **Post date:** [August 16, 2023, 7:25pm UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/25 "2023-08-16T19:25:22Z")
You’re certainly not wrong on any of those points. It seems to all hinge though on how Georgia defines some of that terminology and whether a law talking guy can convince a jury to make the same conclusions you have. ---
**Author:** ![JHuff](https://avatars.discourse-cdn.com/v4/letter/j/b3f665/32.png) [@JHuff](https://boards.straightdope.com/u/JHuff)\ **Post date:** [August 16, 2023, 7:28pm UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/26 "2023-08-16T19:28:55Z")
A very good point. Im probably not gonna be the one to dig up examples of Georgia case history that covers a similar scenario. The ratio of how much effort that takes to my give a shit level is too high. ---
**Author:** ![md-2000](https://avatars.discourse-cdn.com/v4/letter/m/9d8465/32.png) [@md-2000](https://boards.straightdope.com/u/md-2000)\ **Post date:** [August 16, 2023, 8:41pm UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/27 "2023-08-16T20:41:46Z")
> [@JHuff](#): > > But in that same link there’s an example case that goes the opposite way. And here I’ll post the entire snippet because its super relevant to our topic. Of course, I would assume telling someone of their legal rights (“you don’t have to testify, you are entitled invoke the fifth”) is a lot different than telling them “you shouldn’t testify” when there is no fifth involved for the witness. Although telling someone to invoke the fifth might be interpreted as an admission of collective guilt, depending on the circumstances. The judge and jury cannot consider it when a person pleads the fifth instead of answeing questions, but evidence of people telling each other “plead the fifth” I would assume(?) is direct evidence that they feel there is some guilt involved. (Not unlike “put me on the list for a pardon…”) Also, saying “I barely knew the guy…” could sound like coaching a witness on what they should say, particularly if it’s pushing an untrue story. I guess the other question is whether the statement was made publicly enough that the witness is likely to encounter it or be told about it… One TV commentator after another has said “the best thing a client can do is SHUT UP!” and this discussion is a good example of why. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [August 17, 2023, 1:21am UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/28 "2023-08-17T01:21:44Z")
> [@JHuff](#): > > It seems to all hinge though on how Georgia defines some of that terminology and whether a law talking guy can convince a jury to make the same conclusions you have. For what it’s worth, here’s Georgia’s statute > [@](#): > > 1. A person who, with intent to deter a witness from testifying freely, fully, and truthfully to any matter pending in any court, in any administrative proceeding, or before a grand jury, communicates, directly or indirectly, to such witness any threat of injury or damage to the person, property, or employment of the witness or to the person, property, or employment of any relative or associate of the witness or who offers or delivers any benefit, reward, or consideration to such witness or to a relative or associate of the witness shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years. > 2. > 1. It shall be unlawful for any person knowingly to use intimidation, physical force, or threats; to persuade another person by means of corruption or to attempt to do so; or to engage in misleading conduct toward another person with intent to: > 2. Influence, delay, or prevent the testimony of any person in an official proceeding; > 3. Cause or induce any person to: > 4. Withhold testimony or a record, document, or other object from an official proceeding; > 5. Alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding; > 6. Evade legal process summoning that person to appear as a witness or to produce a record, document, or other object in an official proceeding; or > 7. Be absent from an official proceeding to which such person has been summoned by legal process; or > 8. Hinder, delay, or prevent the communication to a law enforcement officer, prosecuting attorney, or judge of this state of information relating to the commission or possible commission of a criminal offense or a violation of conditions of probation, parole, or release pending judicial proceedings. > > 3. Any person convicted of a violation of this subsection shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than two nor more than ten years or by a fine of not less than $10,000.00 nor more than $20,000.00, or both. (My bold) It’s pretty similar, but not exactly the same, as the federal law. > **[2022 Georgia Code :: Title 16 - Crimes and Offenses :: Chapter 10 - Offenses...](https://law.justia.com/codes/georgia/2020/title-16/chapter-10/article-5/section-16-10-93/)** > > Justia Free Databases of US Laws, Codes & Statutes ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [August 17, 2023, 5:58pm UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/29 "2023-08-17T17:58:45Z")
I’d cut to the chase: 1. Is your intent to alter the witness’s testimony? If so that’s tampering. 2. Would a reasonable person in the witness’s position feel even the slightest pressure, regardless of the mechanism of pressure delivery? If so that’s tampering. 3. Is the result to alter the witness’s testimony? If so that’s tampering. All the rest is noise and sophistry. ---
**Author:** ![md-2000](https://avatars.discourse-cdn.com/v4/letter/m/9d8465/32.png) [@md-2000](https://boards.straightdope.com/u/md-2000)\ **Post date:** [August 18, 2023, 2:45am UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/30 "2023-08-18T02:45:07Z")
> [@LSLGuy](#): > > All the rest is noise and sophistry. Ultimately, it boils down to whether the prosecutor and then the jury believe that it violated those rules, was an effort to change witness testimony. In law, there are no magic words like - “I said ‘in my opinion’ so it’s OK…” or “I just said ‘should’” etc. It’s up to the jury to infer and ascribe motive and intent. ---
**Author:** ![Digger11](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@Digger11](https://boards.straightdope.com/u/Digger11)\ **Post date:** [August 18, 2023, 5:17am UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/31 "2023-08-18T05:17:16Z")
> [@Si\_Amigo](#): > > Yes it is, it has an implied threat when they say he shouldn’t. It could also be called an attempt to discredit the witness with the jury. Where’s the threat? If I tell you, “You shouldn’t set out on a long drive without checking your oil level,” is that also a threat? ---
**Author:** ![md-2000](https://avatars.discourse-cdn.com/v4/letter/m/9d8465/32.png) [@md-2000](https://boards.straightdope.com/u/md-2000)\ **Post date:** [August 18, 2023, 12:46pm UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/32 "2023-08-18T12:46:28Z")
> [@Digger11](#): > > Where’s the threat? That’s where reputation also comes into play. If my sweet late aunt says “nice place you got here, shame if anything happens to it…” - no threat. Again, given the totality of the circumstances, it boils down to what the jury thinks. And finally - **It does not have to be a threat.** Simply trying to persuade is a crime too: > [@LSLGuy](#): > > I’d cut to the chase: > > 1. Is your intent to alter the witness’s testimony? If so that’s tampering. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 30, 2023, 1:45pm UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/33 "2023-08-30T13:45:58Z")
Criminal statutes must be read narrowly. Looking at our hypothetical defendant’s statement in its entirety, there is an innocent interpretation. The defendant is not calling on the witness not to testify. He (or she) is calling on the prosecutor not to call the witness before the grand jury. “I barely know Mr. Bloggins” and “he has always been part of the witch hunt” imply that Bloggins has no relevant information or that he is not credible. Those are not reasons why Bloggins should decline to testify. There is no reason for the defendant to communicate those facts to Bloggins; he knows them (or knows they are untrue). There is a very good reason for the defendant to communicate those facts to the prosecutor or the grand jury. In short, read in its entirety, the defendant’s words have a perfectly innocent interpretation. Inartfully stated, perhaps, but this hypothetical defendant has always had trouble with his words. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [August 30, 2023, 4:39pm UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/34 "2023-08-30T16:39:58Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Inartfully stated, perhaps, but this hypothetical defendant has always had trouble with his words. You explained this situation well, and I know Dopers don’t usually nitpick minor unimportant details, but in this matter we aren’t discussing a hypothetical defendant. This is about real person @BeepKillBeep’s alleged criminal activity being considered by a grand jury. He is not a defendant yet that we know of. Questions of jury tampering based on his posting about this Bloggins fellow would not even be under consideration by this grand jury. ---
**Author:** ![md-2000](https://avatars.discourse-cdn.com/v4/letter/m/9d8465/32.png) [@md-2000](https://boards.straightdope.com/u/md-2000)\ **Post date:** [August 30, 2023, 5:02pm UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/35 "2023-08-30T17:02:58Z")
> [@BeepKillBeep](#): > > Mr. Bloggins is about to testify before the grand jury. He shouldn’t. It’s rather difficult to interpret that as in no possible way directed at Mr. B. If someone makes a federal case about it, then again - _it’s up to a jury_ to divine the intent of the speaker, whether that was directed at the witness or the prosecutor. (There’s the classic case about the death penalty in Britain - where the one fellow had a gun pointed at the policeman, who said “give me the gun”. The accomplice said “let him have it.” The jury interpreted this as “shoot him” not “give him the gun” and the accomplice hanged. Two ways of seeing the same statement, up to the jury to decide.) ---
**Author:** ![Buck\_Godot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/buck_godot/32/6573_2.png) [@Buck\_Godot](https://boards.straightdope.com/u/Buck_Godot)\ **Post date:** [August 30, 2023, 9:33pm UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/36 "2023-08-30T21:33:38Z")
> [@LSLGuy](#): > > I’d cut to the chase: > > 1. Is your intent to alter the witness’s testimony? If so that’s tampering. > 2. Would a reasonable person in the witness’s position feel even the slightest pressure, regardless of the mechanism of pressure delivery? If so that’s tampering. > 3. Is the result to alter the witness’s testimony? If so that’s tampering. > > All the rest is noise and sophistry. But there still needs to be some level of corruption. If I call my friend and have the following conversation. **Me:** Hi the police might stop by and ask if you saw me around 3:00 the Thursday before last. **Friend:** Did I see you the Thursday before last? **Me:** Yeah remember I came by to pick up the DVDs I loaned you and we talked about the Nicks game from the night before, but you told me you needed to run off to your dentist appointment. **Friend:** Oh yeah now I remember, you said Joseph Thibodeau should be keel hauled. **Me:** For some reason they think I was 300 miles away robbing a bank. Now I was clearly trying to influence my friend’s testimony to my own benefit but assuming that I’m not lying about that interaction I don’t think that I could be said to have acted corruptly. ---
**Author:** ![md-2000](https://avatars.discourse-cdn.com/v4/letter/m/9d8465/32.png) [@md-2000](https://boards.straightdope.com/u/md-2000)\ **Post date:** [August 31, 2023, 12:52am UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/37 "2023-08-31T00:52:03Z")
> [@Buck\_Godot](#): > > Now I was clearly trying to influence my friend’s testimony to my own benefit but assuming that I’m not lying about that interaction I don’t think that I could be said to have acted corruptly. > [@LSLGuy](#): > > Is your intent to alter the witness’s testimony? If so that’s tampering. So not trying to _alter_ his testimony? If what you said was true, it’s not an attempt to alter. If what you say was false, or trying to confuse or plant a false narrative in his brain - alter. Even if you were the one misremembering - it actually happened the day before - it could be construed as deliberate tampering by someone unable to read your mind. This is why discussing the case with a witness is a really bad idea. ---
**Author:** ![Buck\_Godot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/buck_godot/32/6573_2.png) [@Buck\_Godot](https://boards.straightdope.com/u/Buck_Godot)\ **Post date:** [August 31, 2023, 12:58am UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/38 "2023-08-31T00:58:46Z")
What I was thinking was that I was trying to alter it from, “I don’t recall one way or another whether I saw Buck that day” to accurately remembering that we did meet the day after the Nicks game and right before my Dental appointment which he has on is calendar as Thursday the 13th. I agree that its probably not the best thing to do, but I don’t think I could be thrown in the slammer for doing it. ---
**Author:** ![md-2000](https://avatars.discourse-cdn.com/v4/letter/m/9d8465/32.png) [@md-2000](https://boards.straightdope.com/u/md-2000)\ **Post date:** [September 5, 2023, 7:50pm UTC](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568/39 "2023-09-05T19:50:40Z")
Watching an old recording of _The Last Word_ on MSNBC (since it followed Rachel Maddow) and one of their legal experts called the advice “he should not testify” as “counselling to disobey a legal subpoena” which he said was a crime. [Previous page](https://boards.straightdope.com/t/is-telling-a-witness-not-to-testify-witness-tampering/988568.md?page=1)