What is witness intimidation?

If I could change the name of a single crime listed in the Idaho Code, it would be “intimidating a witness,” because it is very misleading to those who have not reviewed its definition.

The confusion stems from the fact that the crime of witness intimidation does not require any intimidation to occur. In fact, to be guilty of intimidating a witness, the defendant need only have “influenced” the witness in “any manner” that prevents the witness from “testifying freely, fully and truthfully.” Accordingly, “witness tampering” or “influencing a witness” would be more accurate names for this offense.

The Idaho Court of Appeals further clarified, in State v. Sutton II, that threatening or intimidating a witness is not necessarily “intimidating a witness” for purposes of that statute. This is because threatening or intimidating actions must be taken for the purpose of affecting future testimony or in retaliation for past testimony.

In Sutton II, the appeals court opined that if the alleged break-in was retribution for “narking,” as opposed to affecting future testimony, the defendant would technically not be guilty of witness intimidation.

So, “intimidating a witness” does not require any intimidation, and not all intimidation of a witness constitutes “intimidating a witness” for purposes of the crime. Clear as mud, right?

Now, if a defendant influences a witness in a civil proceeding, it constitutes a misdemeanor offense. But if a defendant influences a witness in a criminal proceeding, that constitutes a felony offense.

In my experience, the vast majority of witness intimidation charges are associated with violent crimes, especially crimes of domestic violence. This makes perfect sense given that the defendant and alleged victim are generally either still in love or living together, or both. It is difficult not to talk to a significant other about something that is affecting the relationship, especially if that something is a criminal case that could result in jail time.

In the end, even a polite suggestion that a witness alter his or her testimony, or ignore a subpoena can constitute witness intimidation. Therefore, if you are a defendant in a case, it is generally best not to talk about the case at all with any witnesses, even if those witnesses are family members or significant others.

This column provides general information and is not to be considered legal advice. Readers with specific legal questions should consult an attorney. The Idaho State Bar Association provides a lawyer referral service through its website at isb.idaho.gov.

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Adam J. Ondo is an associate attorney at Tatum Wysocki Law, P.C., where he litigates criminal and child protection cases on behalf of defendants. He is also an avid hunter and participant in multiple shooting sports.