Colorado Criminal Law – Taking A Bribe To Refuse To Testify As A Witness 18-8-603 – A Pitfall For The Unwary In Domestic Violence Cases
By H. Michael Steinberg Colorado Domestic Violence Criminal Defense Lawyer
Colorado Criminal Law – Taking A Bribe To Refuse To Testify As A Witness 18-8-603 – A Pitfall For The Unwary In Domestic Violence Cases –While not limited to Colorado Domestic Violence cases, witnesses agreeing to not testify or testify falsely at trial is a significant and dangerous problem as the witness exposes him or herself to possible prosecution for Bribery under CRS 18-8-603.
This bribery law 18-8-603 CRS covers the witness that accepts a bribe – not the person who offers the bribe.
While I have written on this issue before – the possible pitfalls in this area justify several good reasons to revisit these issues in another article.
Always Start With The Law – 18-8-603 CRS – Bribe – Receiving By A Witness
Here is the Colorado law (2016) that applies when a witness accepts a bribe not to testify or to testify falsely. The law is very broadly written – especially the use of the term “benefit.”
18-8-603 Bribe – Receiving By A Witness
(1) A witness or a person believing he is to be called as a witness in any official proceeding commits a class 4 felony if he intentionally solicits, accepts, or agrees to accept any benefit upon an agreement or understanding that:
(a) He will testify falsely or unlawfully withhold testimony; or
(b) He will attempt to avoid legal process summoning him to testify; or
(c) He will attempt to absent himself from an official proceeding to which he has been legally summoned.
The Colorado Jury Instruction On This Law – Breaks Out The Crime Into It’s Component Parts
8-6:01 Bribe-receiving by a Witness (False or Withheld Testimony)
The elements of the crime of witness bribery (false or withheld testimony) are:
1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. was a witness or believed that he [she] was to be called as a witness in any official proceeding, and
4. intentionally,
5. solicited, accepted, agreed to accept,
6. any benefit,
7. upon an agreement or understanding that he [she] would testify falsely or unlawfully withhold testimony.
[8. and that the defendant’s conduct was not legally authorized by the affirmative defense[s] in Instruction[s] ___.]
Key Definitions Of Critical Words Used In The Law Are:
“Benefit” means any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.
A person acts “intentionally” or “with intent” when his [her] conscious objective is to cause the specific result proscribed by the statute defining the offense. It is immaterial to the issue of specific intent whether or not the result actually occurred.
“Official proceeding” means a proceeding heard before any legislative, judicial, administrative, or other governmental agency, or official authorized to hear evidence under oath, including any magistrate, hearing examiner, commissioner, notary, or other person taking testimony or depositions in any such proceedings.
“Testimony” includes oral or written statements, documents, or any other evidence that may be offered by or through a witness in an official proceeding.
Are There Any Defenses Under Colorado Law To A Witness Charged With Accepting A Bribe?
There are defenses to bribery charges in this context.
This is not an exhaustive list – but some possible examples of some possible defenses:
- There was no specific intent to commit the crime.
- Entrapment was used to coerce the witness Defendant into accepting the bribe. – (1) A law enforcement person induced the accused to accept a bribe and (2) the accused was not predisposed to accepting a bribe.
- Other methods of coercion such as duress or threats were used.
- The accused was too intoxicated to understand the nature of the crime he or she had committed.
- The bribe never happened.
- If some benefit was accepted there was no value to the benefit so it could not be construed as a bribe or the accused did not accept the benefit (if there was one) in exchange for testimony.
The Colorado Penalties For A Conviction Of The Crime Of Bribery Of A Witness 18-8-603 CRS
The crime of Bribery Of A Witness 18-8-603 is a Class 4 felony, and is punishable by a prison sentence to the Department of Corrections – see chart below.
Understanding How Easily You Could Be Caught Up In A Colorado Bribery Of A Witness Case
While the most common example of the corruption of a trial for this crime is the payment of cash or some other benefit to “miss the trial”
The more ambiguous situation may be where a friend or family member of a Defendant starts a conversation with a witness to the criminal case in an effort to “help” the Defendant by offering some benefit for changing the witnesses’s testimony or avoiding a subpoena or refusing to cooperate with the prosecution.
A bribe, in this context can be anything of present or future value or advantage – it can be a promise to give a thing, or a promise to omit from doing a thing.
There are no “magic” or specific words or behavior that are required to be used where the intent is clear enough that the witness had agreed for example not to attend a trial and/or judicial proceeding or otherwise alter their testimony on behalf of a party to the case.. The crime is complete when the bribe is solicited, accepted or there is an agreement to accept the bribe.
….
(1) A witness or a person believing he is to be called as a witness in any official proceeding commits a class 4 felony if he intentionally solicits, accepts, or agrees to accept any benefit upon an agreement or understanding that:
(a) He will testify falsely or unlawfully withhold testimony; or
(b) He will attempt to avoid legal process summoning him to testify; or
(c) He will attempt to absent himself from an official proceeding to which he has been legally summoned.
The benefit offered need not actually be given, it may not even exist at the time it is offered.
“Benefit” means any gain or advantage to the beneficiary, including any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.
The witness need only be encouraged to avoid the service of a summons or subpoena – this is VERY VERY COMMON in Colorado domestic violence cases!
Several Laws Are Designed To Protect The Integrity Of The Colorado Criminal Trial Process
While Bribery – Receiving by a Witness – is one of the crimes in the category of crimes designed to protect the Colorado criminal justice system, there are others.
Bribing a Witness, under C.R.S pm5mbbo. 18-8-703, is nearly identical the 18-8-603 and the law includes efforts to bribe a family member, close friend, or household member of the prospective witness. It is also a class 4 felony.
18-8-703. Bribing a witness or victim
(1) A person commits bribing a witness or victim if he or she offers, confers, or agrees to confer any benefit upon a witness, or a victim, or a person he or she believes is to be called to testify as a witness or victim in any official proceeding, or upon a member of the witness’ family, a member of the victim’s family, a person in close relationship to the witness or victim, or a person residing in the same household as the witness or victim with intent to:
(a) Influence the witness or victim to testify falsely or unlawfully withhold any testimony; or
(b) Induce the witness or victim to avoid legal process summoning him to testify; or
(c) Induce the witness or victim to absent himself or herself from an official proceeding.
(2) Bribing a witness or victim is a class 4 felony.
Tampering With A Witness – or – Victim 18-8-707 –
Tampering is a Class 4 Felony that does not require a bribe or threat but rather includes ANY act that impacts a witnesses’ testimony:
§ 18-8-707. Tampering with a witness or victim
(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:
(a) Testify falsely or unlawfully withhold any testimony; or
(b) Absent himself from any official proceeding to which he has been legally summoned; or
(c) Avoid legal process summoning him to testify.
(2) Tampering with a witness or victim is a class 4 felony.
Tampering with physical evidence, C.R.S. § 18-8-610, – a class 6 felony. This crime involves the destruction or alteration of physical evidence with the intent to impair its verity or availability in some official proceeding.
Intimidating a witness or victim, C.R.S. § 18-8-704, a Class 4 felony.
This version of criminal procedural protections involves the use of a threat or harassment or any act of harm to person or property, against a witness or victim or member of the family of the witness or victim, with the intent to alter testimony or induce the witness or victim not to testify. It becomes “Aggravated intimidation of a witness or victim, C.R.S. § 18-8-705, when the crime of intimidating a witness, involves the use of a deadly weapon or results in any injury or fear as the result of the use of a deadly weapon.
The crime is then enhanced to a Class 3 Felony.
18-8-704. Intimidating a witness or victim
(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:
(a) Influence the witness or victim to testify falsely or unlawfully withhold any testimony; or
(b) Induce the witness or victim to avoid legal process summoning him to testify; or
(c) Induce the witness or victim to absent himself or herself from an official proceeding; or
(d) Inflict such harm or injury prior to such testimony or expected testimony.
(2) Intimidating a witness or victim is a class 4 felony.
Finally The Colorado Retaliation Against A Witness Or Victim – 18-8-706.
Here the threat or act of harassment follows the criminal trial or hearing.
§ 18-8-706. Retaliation against a witness or victim
(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.
Summary – Colorado Criminal Law – Taking A Bribe To Refuse To Testify As A Witness 18-8-603 – A Pitfall For The Unwary In Domestic Violence Cases
The primary focus in this article is to educate the potential witness who believes they may be doing “the right thing” for their friend or family member by helping another – such as a friend or family member who is also a witness – to avoid testifying or even going so far as to testify falsely. This is a trap for the unwary.. for by agreeing to this kind of conduct – the Defendant in the original proceeding may go free, but the witness who has accepted the bribe then replaces that person in the Defendant’s chair -now charged with a very serious felony.
Colorado Criminal Law – Taking A Bribe To Refuse To Testify As A Witness 18-8-603 – A Pitfall For The Unwary In Domestic Violence Cases
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