Intimidating Or Dissuading A Witness – Penal Code Section 136.1
When it comes to intimidating a witness, the police, prosecutors and even judges take these cases very seriously. I can see these cases come up in a number of different scenarios. Sometimes a person is in the midst of allegedly committing a crime – domestic violence for example – and the other party threatens to report them and they snap back – if you do, I'm going to kill you – or if you do, I'm going to get you, or they take their phone away or break it, or they pull the phone out of the wall – these are all cases that can fall under the umbrella of dissuading or intimidating a witness covered under California Penal Code Section 136.1.
Another area where I see it all the time is when I do preliminary hearings or trials in the various courts throughout Los Angeles County and somebody who's either a defendant or a friend of a defendant or family member of a defendant will say something to one of the witnesses in the person's case that they take wrong, and then they report it to law enforcement and this would be a very serious dissuading or intimidating a witness case. The typical bail for these cases is $100,000.00 and the prosecutors are usually looking to put anybody involved with this type of case in prison.
Dissuading a witness cases are typically prosecuted by the senior level prosecutors and they are political crimes, because our whole judicial system is centered around people being able to get a fair trial, and not only the defendant getting a fair trial, but the people of the State of California getting a fair trial. The prosecutors are the ones responsible for making sure that happens along with the judge.
So, if either the judge or the prosecutor feels that any witness is being dissuaded or intimidated, they're going to come down hard on whoever is doing that, and they will take them into custody, they will prosecute them, and they will send them to prison.
So, if you have one of these cases, I suggest you get in front of a good criminal defense attorney, go over all of the facts, give them the right details about what happened – don't leave anything out, don't put a spin on it – and allow your criminal defense attorney to figure out exactly how the case is going to be defended and what is going to be done.
You can certainly bring up mitigating circumstances or explain why, whatever was said or done, was done. Sometimes in that first example I gave you where you're in the midst of a domestic violence situation and you're arguing, you're angry with somebody – people say stupid stuff that they really didn't mean – to dissuade or intimidate a witness, then a lot of times I can get those charges dismissed because the prosecutors realize the person was just talking crazy and the real underlying offense has to do with something other than dissuading or intimidating a witness.
Defenses To Intimidating Or Dissuading A Witness
Sometimes, again parties will try to use certain legal processes in order to stop somebody from doing something they don't want them to do. So, I've seen people claim that they've been threatened in various things and then the poor person is charged with an intimidating or dissuading a witness case, and I have to come in and figure out what happened, and then we find out that they really didn't intimidate or dissuade anybody.
The other person was just angry with them or is trying to get them in more trouble. Other defenses are related to basically that you didn't say or do anything that was an effort to intimidate or dissuade a witness. Again, we need to know exactly what the words are that were being said and then you use the reasonable person standard – you match it up with Penal Code Section 136.1 and those elements, and then you see whether or not somebody actually made a statement or did something that intimidated a witness in the case.
You're going to need someone to do or say something malicious – there's going to need to be some sort of a threat – and the other party is going to have to realize or think in their mind that the person is serious about whatever it is, was said and they're going to also have to believe that they were trying to intimidate them into not testifying in the case.
So, there are all sorts of defenses in these types of cases, but of course the defenses spin on the facts of the case – the facts and circumstances in all criminal defense cases dictate what defenses are available, and basically what a person should do when it comes to intimidating a witness case.
Seeking Best Possible Outcome
My strategy typically in these cases is to get the client in, have them give me an honest account of exactly what happened without leaving anything out so I have all the details, and then through my twenty-five years of experience, I will talk and then we'll come up with a plan of exactly how the case is going to be dealt with – whether we're going to defend it all the way with a jury trial – or whether this is the type of case where we need to do damage control and speak to the prosecutor, get character letters and figure out how we can show them that you're not a bad person, that this is out of character for you – it's an aberration that's never going to happen again.
If we can convince them that you're not a danger to the public and you would never do anything to any of the witnesses in the case, and it was just something that came out in anger and you really weren't going to act upon it, now we're in a position where we can try to get probation and work things out so that you can protect your freedom, your record and your reputation.