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Dissuading a Witness in California

In a criminal case, a witness may give their account of what happened that can implicate the accused. For example, in a bank robbery trial, a customer may come into court to act as a witness for the prosecution. The witness would tell the jury what he or she witnessed, which could be used as evidence against the accused bank robber.

In a case without a lot of other physical evidence, witness testimony may be the only strong evidence the prosecutor has. Without that witness testimony, the prosecutor may have to drop the case. However, doing anything to prevent or dissuade the witness from attending a trial or reporting a crime is a criminal offense in California.

Dissuading a witness does not always require making threats against the witness. For example, in a domestic violence case, a relative of the accused may contact the accuser to try and get them to change their story because they think the accused made a mistake and should be forgiven. However, that may still be considered dissuading a witness. If you are accused of attempting to dissuade a witness in California, talk to your experienced East Bay criminal defense attorney to understand your rights.

Dissuading a Witness Under PC 136.1

Under California Penal Code 136.1, it is a crime to knowingly and maliciously:

  1. Prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law; or
  2. Attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.

Dissuading a Witness or Victim from Reporting the Crime

Under California Penal Code 136.1(b), it is also a crime to try and persuade a victim or witness from reporting a crime or other violation. This includes:

  • Reporting a crime to a police officer or reporting victimization to law enforcement or a judge;
  • Causing a complaint, indictment, or parole violation to be sought and prosecuted; or
  • Arresting or seeking the arrest of any person in connection with that victimization.

For example, if someone has a restraining order against another person for domestic violence, dissuading someone from reporting a violation of the restraining order may be a crime.

Felony Dissuading a Witness

Dissuading a witness may be charged as a misdemeanor or felony. There are several factors that could increase the criminal charge to a felony offense under California Penal Code 136.1(c), including:

  1. Where the act is accompanied by force or by threat of force or violence, upon a witness or victim or any third person, or the property of any victim, witness, or any third person.
  2. Where the act is in furtherance of a criminal conspiracy.
  3. Where the individual has a prior conviction of this or a similar crime.
  4. Where the act is committed by any person for financial gain at the request of any other person. All parties to such a transaction are guilty of a felony.

It does not matter if the witness or victim was actually harmed or injured. It is not a defense that no person was physically injured. Even attempting to use force or threat of force against a witness or victim may make the crime a felony.

Threats of force do not have to be express. Even implied threats of force may be considered a felony threat to dissuade a witness. For example, if someone tells the witness about someone who was recently killed and says it would be terrible if something like that happened to the witness, that may be a type of implied threat.

Penalties for Dissuading a Witness in California

Dissuading a witness can be charged as a misdemeanor or a felony, depending on the circumstances. If charged as a misdemeanor, the defendant faces jail or prison for not more than one year. However, as a felony, the penalties for dissuading a witness can include up to 4 years in prison.

If convicted of a felony, the individual may face additional collateral consequences beyond jail time and fines. This may include a lengthy parole period where the individual has to submit to the conditions of parole and check-in regularly with their parole officer (PO). A felony conviction can also prevent the individual from owning or possessing a firearm and can make it more difficult to find a job or get benefits.

Defenses to Dissuading a Witness

There are a number of possible defenses to criminal charges of threatening or dissuading a witness. Warning someone about the dangers of acting as a witness in a criminal trial may not be dissuading the witness because there is no malice intended. If the person warning the witness was only trying to help the witness make an informed decision, that may not be acting maliciously or unlawfully.

When a Family Member Tries to Dissuade the Witness

Being a witness to a crime can be dangerous for the witness. While the witness or victim may be willing to give testimony about what happened, family members of the witness may be more concerned for their safety.

If a family member intercedes in an effort to protect the witness or victim, that may be evidence that the act was without malice, which would generally not be considered a crime under this statute.

Another potential defense to charges of dissuading a witness is where the individual is not aware of any existing, possible, or pending court case, proceeding, or inquiry. Similarly, if the individual was not aware that the person they were talking to was a potential witness or victim, they may not have the intent to dissuade a witness.

Talk to your experienced East Bay criminal defense attorney about the best defenses available to fight against a criminal conviction for dissuading a witness or victim.

East Bay Criminal Defense Attorney

East Bay lawyer Lynn Gorelick has more than 30 years of criminal defense experience defending clients facing criminal charges, including witness tampering or dissuading a witness. She understands how to approach the individual facts of each case for the greatest chance of success. If you or a loved one is facing criminal charges in Alameda or Contra Costa County, contact East Bay Criminal Defense Attorney Lynn Gorelick.

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