Understanding What not to do Investigating a Criminal Case in Colorado

It is very very important that an individual permit his/her lawyer to investigate a case and speak to the victim and witnesses’s in the case. Often, after being charged – or in anticipation of charges, the Client enraged or just upset willmake things much worse by contacting these individuals on their own. Often, this gives rise to new felony charges as outlined below in this article.

If an individual tries to prevent a witness from initiating a criminal complaint, answering questions posed by a law enforcement agency, or testifying in court, he or she can be charged with witness Intimidation, Tampering, or, if it is after the fact, Retaliation.

All crimes have elements that must be proven by the prosecution in order for a defendant to be convicted. The burden of proof is whether the judge or jury believes beyond a reasonable doubt that the prosecution has proven, the element. Each element must be independently proven or the defendant must be acquitted.

1. A person commits intimidating a witness or victim if, by use of a threat, act of harassment as defined in section 18-9-111, or act of harm or injury to any person or property directed to or committed upon a witness or a victim to any crime, a person he or she believes has been or is to be called or who would have been called to testify as a witness or a victim, a member of the witness’ family, a member of the victim’s family, a person in close relationship to the witness or victim, a person residing in the same household with the witness or victim, or any person who has reported a crime or who may be called to testify as a witness to or victim of any crime, he or she intentionally attempts to or does:
   1. Influence the witness or victim to testify falsely or unlawfully withhold any testimony; or
   2. Induce the witness or victim to avoid legal process summoning him to testify; or
   3. Induce the witness or victim to absent himself or herself from an official proceeding; or
   4. Inflict such harm or injury prior to such testimony or expected testimony.
2. Intimidating a witness or victim is a class 4 felony. ( punishable from 2 to 6 years in prison)

There are three elements which must be proven to secure a witness intimidation conviction.

The first element is that a witness (someone with firsthand knowledge of the facts of a crime or who was scheduled to testify in a criminal proceeding) or the victim of a crime. The most common scenario in a domestic abuse witness intimidation case is when a defendant attempts to convince his or her intimate partner (the alleged victim) not to proceed with a complaint against the defendant.

The second element is that the accused intended to either prevent or dissuade an the victim – witness from filing a criminal complaint, answering questions posed by any law enforcement agency, or from testifying in any court proceeding. In regard to this element, the question is whether the attempt was made, not whether it was successful.

The final element is that the defendant acted knowingly.

When force or a threat of force (either expressed or implied) accompanies an attempt to intimidate a witness, or if the intimidation was part of a conspiracy, the prosecution must prove such. In addition to the above elements, the prosecution would also have to show that implied or express force was used and that the act was part of a conspiracy.

An enhanced version of this law is found in the Aggravated Witness Intimidation Law:

Aggravated Intimidation of a Witness or Victim 18-8-705. Aggravated intimidation of a witness or victim.

1. A person who commits intimidating a witness or victim commits aggravated intimidation of a witness or victim if, during the act of intimidating, he:
   1. Is armed with a deadly weapon with the intent, if resisted, to kill, maim, or wound the person being intimidated or any other person; or
   2. Knowingly wounds the person being intimidated or any other person with a deadly weapon, or by the use of force, threats, or intimidation with a deadly weapon knowingly puts the person being intimidated or any other person in reasonable fear of death or bodily injury.
2. For purposes of subsection (1) of this section, possession of any article used or fashioned in a manner to lead any person reasonably to believe it to be a deadly weapon, or any verbal or other representation by the person that he is so armed, is prima facie evidence that the person is armed with a deadly weapon.
3. Aggravated intimidation of a witness or victim is a class 3 felony. (4 to 16 years in prison)

1. A person commits tampering with a witness or victim if he intentionally attempts without bribery or threats to induce a witness or victim or a person he believes is to be called to testify as a witness or victim in any official proceeding or who may be called to testify as a witness to or victim of any crime to:
   1. Testify falsely or unlawfully withhold any testimony; or
   2. Absent himself from any official proceeding to which he has been legally summoned; or
   3. Avoid legal process summoning him to testify.
2. Tampering with a witness or victim is a class 4 felony.

The plain language of subsection (1)(a) does not require the DA to prove an attempt to interfere with actual testimony anticipated to be offered at a trial, hearing, or other sworn proceeding but only that the defendant attempted to influence a witness or victim to testify falsely or to unlawfully withhold testimony that may be offered in the future, and the witness or victim need not be under subpoena or legal summons at the time of the contact. People v. Cunefare, 102 P.3d 302 (Colo. 2004).

However, the witness or victim must be legally summoned to be a witness under subsection (1)(b). To find a defendant guilty under subsection (1)(b), the jury must have received evidence that the defendant attempted to have the victim absent herself or himself from a proceeding to which she or he had been legally summoned. The mere presence of the victim at trial does not permit the jury to conclude that she or he was legally summoned to appear at trial. People v. Yascavage, 80 P.3d 899 (Colo. App. 2003), aff’d, 101 P.3d 1090 (Colo. 2004).

Also, the Defendant could not have abandoned the crime of tampering with a witness once he attempted to influence the victim, because the crime was completed when the attempt was made. People v. Scialabba, 55 P.3d 207 (Colo. App. 2002).

Even a threat of a civil lawsuit is sufficient to establish probable cause. Where the evidence and the reasonable inferences which could be drawn from it established that the defendant told the witness that if she or 10 people testified before the grant jury, the defendant would sue the witness or any of the 10 persons for perjury and that the defendant was aware that the witness had talked with the district attorney at the time his statements were made, this evidence established probable cause to believe that the defendant committed the crime of tampering with a witness. People v. Moyer, 670 P.2d 785 (Colo. 1983).

1. An individual commits retaliation against a witness or victim if such person uses a threat, act of harassment as defined in section 18-9-111, or act of harm or injury upon any person or property, which action is directed to or committed upon a witness or a victim to any crime, an individual whom the person believes has been or would have been called to testify as a witness or victim, a member of the witness’ family, a member of the victim’s family, an individual in close relationship to the witness or victim, an individual residing in the same household with the witness or victim, as retaliation or retribution against such witness or victim.
2. Retaliation against a witness or victim is a class 3 felony.

Some thoughts on this law:

It is important to note that even threats to third parties are Although the statute does not expressly prohibit threats delivered to third-party recipients, a person of ordinary intelligence would understand that such conduct is proscribed under the statute. Therefore, the statute is not unconstitutionally vague as applied to defendant. People v. McIntier, 134 P.3d 467 (Colo. App. 2005).

Also – the law draws an important distinction between the two methods of harming a witness. While the language of the statutes regarding retaliation against a witness and intimidation of a witness are similar they are factually distinguishable and reasonable grounds exist to support differences in punishment provided for each. One is intimidation of a witness prior to testimony, the other is retaliation in response to testimony given. Therefore they do not conflict with each other. People v. Gardner, 919 P.2d 850 (Colo. App. 1995). The courts prescribe more severe penalties for conduct it perceives to have more severe consequences, even if the differences are only a matter of degree, so long as the classifications of criminal behavior are based on differences reasonably related to the general purpose of these laws. People v. Gardner, 919 P.2d 850 (Colo. App. 1995).

Also – it should be noted that verbal threats to kill or injure a witness in retaliation for the witness’s testimony are not protected speech under the first amendment. Threats to injure a potential witness’s family, made with the intent of discouraging testimony, are also not protected speech. People v. Hickman, 988 P.2d 628 (Colo. 1999); People v. McIntier, 134 P.3d 467 (Colo. App. 2005). And whether a statement is a “true threat” or is considered “political speech” is a question for the finder of fact – either the jury or a judge. A threat is a statement of purpose or intent to cause injury or harm to the person, property, or rights of another by the commission of an unlawful act.

The critical inquiry is whether the statements, viewed in the context in which they were spoken or written, constitute a true threat. A “true threat” is not merely talk or jest and is evaluated by whether those who hear or read the threat reasonably consider that an actual threat has been made. The threat need not be direct. A threat may be contingent or conditional if the contingency itself remains in the control of the person making the threat. People v. McIntier, 134 P.3d 467 (Colo. App. 2005).

The phrase “directed to” means that a threat must be directed toward or made against a person protected by the statute, but nothing in the language of the statute requires that the threat must be directly communicated to or received by the protected person. This statute is a specific intent offense, that means – there must be intent to accomplish the crime – also known as premeditation. The law does not require proof that defendant intentionally communicated the threat to the witness but only that he made the threat with the specific intent to retaliate or to seek retribution for the witness’s involvement in the prior criminal proceedings People v. Hickman, 988 P.2d 628 (Colo. 1999); People v. McIntier, 134 P.3d 467 (Colo. App. 2005).

The best way to avoid the severe consequences that result from a witness intimidation conviction is for the accused to hire an experienced criminal defense lawyer who knows how to refute the elements of this crime. H. Michael Steinberg of the Steinberg Colorado Criminal Defense Law Firm receives extensive ongoing training in domestic violence law and the various issues that arise in such cases. If you have been charged with domestic violence or are afraid of witness intimidation, tampering or retaliation charges intimate partner abuse or any other crime, contact the firm today and speak to H. Michael. He can help you with all aspects of the case.