What puts a person or entity at risk of prosecution?

In New York, a person can be found guilty of tampering with a witness when he or she convinces a witness in a trial to avoid testifying or to lying when testifying. A person is guilty of Tampering With a Juror in the second degree when he or she pays or provides a benefit to a juror before the jury has been discharged.

”Laws against jury tampering are intended to deter people from threatening or intimidating jurors,” according to the New York Times. The laws are also intended to keep the jury impartial. In fact, the concept of an impartial jury verdict dates back to the ancient Greeks and Romans.

Charges of Tampering With a Witness or Juror

Charges of Tampering With a Witness can range from the above-noted fourth degree, which is a class A misdemeanor, to a first-degree charge, which is a class B felony. Crimes related to Tampering With a Juror can be brought in the second degree (a class B misdemeanor) or first degree (a class A misdemeanor).

Offenses related to Tampering With a Witness and Tampering With a Juror are defined under New York Penal Codes § 215.1 – § 215.25. The charges are somewhat different from charges of Intimidating a Witness or Bribing a Witness, although multiple related offenses can sometimes be charged simultaneously.

The more serious charge of Tampering With a Witness in the first degree generally involves causing physical harm to the witness. Not surprisingly, penalties for this offense are steeper than for the other felony or misdemeanor charges. Even if you are at risk of one of the lesser charges, you should still speak with an attorney to help you determine the best possible defense strategy if you are charged with the offense.

The Legal Definition of Tampering With a Witness

Now that we understand some general factors of Tampering With a Witness and Tampering With a Juror let’s take a closer look at what the law says. N.Y. Penal Codes § 215.1 – § 215.13 set out the legal definitions of Tampering With a Witness. N.Y. Penal Codes § 215.23 – § 215.25 establish the legal definitions of Tampering With a Juror.

N.Y. Penal Law § 215.1

According to N.Y. Penal Law § 215.1, there are essentially two factors that can result in an individual being legally guilty of Tampering With a Witness in the fourth degree.

• The first is when that individual knows that someone will be called as a witness and “wrongfully induces” the witness to “absent himself” or to avoid testifying.
• The second is when the individual “knowingly makes any false statement” or is deceitful in an attempt to alter the witness’s testimony. So, in other words, if you lie to a witness in an attempt to alter his testimony, you are legally guilty of tampering with a witness.This is the base case. Incurring a charge of Tampering With a Witness in the fourth degree is bad, but you can see below that it can get much worse.

Generally, tampering with a witness in the first, second, or third degree incorporates the base case, but charges rise to even higher levels of severity. To reach a third-degree charge, the individual has frightened the witness, thus causing the witness to absent himself or change his testimony.

To rise to the level of Tampering With a Witness in the second degree, the individual has caused physical harm to the witness. In the first degree, a class B felony, the individual has caused “serious physical injury” to the witness. So the difference between first and second degree Tampering With a Witness is the degree of harm caused to the witness.

Examples 

Let’s try to clarify by providing some examples. A man robs a bank. While his trial is ongoing, he causes serious physical injury to a witness in an attempt to persuade her not to testify against him. Or possibly he harms the witness after she has already testified against him. In both cases, these actions could lead to a charge of Tampering With a Witness in the first degree.

Same situation – a man robs a bank. He approaches the witness and threatens to cause her bodily harm but does not actually hurt her. In this case, the man is at risk of being charged with Tampering With a Witness in the third degree.

Specifically:

1. Tampering With a Witness in the fourth degree – if you persuade a witness to change her testimony or not testify at all.
2. Tampering With a Witness in the third degree – if you persuade a witness to change her testimony or not testify at all by threatening her somehow. In other words, you instill fear in her but don’t actually hurt her.
3. Tampering With a Witness in the second degree – if you hurt a witness to compel her to change her testimony or not testify at all. Let’s say that you push her or hit her.
4. Tampering With a Witness in the first degree – if you cause serious harm to a witness in order to have her change her testimony or not testify at all. If you break her leg, it would likely rise to the level of a first-degree charge.
5. Tampering With a Juror in the second degree – if you pay or provide some benefit to a juror. You are also at risk if you act on behalf of a juror and accept payment in exchange for providing information about what the jurors are saying during their deliberations.
6. Tampering With a Juror in the first degree – if you try to influence the outcome of a trial and therefore communicate with a juror in an unauthorized way.

Elements of Tampering With a Juror

Below we outline the “elements” of Tampering With a Juror. These elements are what the prosecutor must prove in order for you to be found guilty of the crime. Under N.Y. Penal Law § 215.25, for a defendant to be convicted in a trial for Tampering With a Juror in the first degree, generally the following must be true:

1. A specific individual was a juror on or about a particular date
2. On that date, the defendant communicated with the specific juror
3. The defendant did so intending to influence the outcome of the trial, and
4. The communication was not legally authorized

Let’s look at these in greater detail.

Element #1: Specific Juror

This element is fairly straightforward. To find an individual guilty, the prosecutor must show that the individual whom the defendant approached was a specific juror.

For instance, in the case of United States v. Heicklen, the defendant, a retired chemistry teacher, was charged with attempting to influence the actions or decisions of a juror by positioning himself at the entrance to the United States Court for the Southern District of New York, where he distributed pamphlets that advocated jury nullification.

Because this did not involve one specific juror nor one specific case, the charges were ultimately dismissed.

Element #2: Defendant communicated with specific juror

This element is also fairly straightforward. The prosecutor must also prove that you communicated with a specific juror on a specific date.

Element #3: Intent was to influence the outcome of the trial

The prosecutor must prove that your intent was to influence the outcome of the trial. So merely speaking casually to a juror would not satisfy this element.

Element #4: Communication was not legally authorized

The communication must, in some way, be an attempt to impact the outcome of the trial, such as protesting your innocence.

Elements of Tampering With a Witness

Below we outline the “elements” of Tampering With a Witness. Under N.Y. Penal Law § 215.25, for a defendant to be convicted in a trial for Tampering With a Juror in the first degree, the following generally must be true:

1. On a specific date, the defendant intentionally caused serious physical injury to a specific witness
2. The defendant did so because the witness had testified or was about to testify in a criminal proceeding

Related Offenses

Charges of Tampering With a Witness could be pursued instead of or in addition to charges of certain other related offenses, including those listed below:

Related Offense #1: Bribing a juror § 215.19

A person is guilty of bribing a juror when that person gives the juror a gift or some other benefit with the express understanding that it will influence the juror`s vote.   

Related Offense #2: Bribe receiving by a juror § 215.20

This is the other side of bribing a juror above. In other words, the juror can be charged if he or she accepts a gift.

Related Offense #3: Providing a juror with a gratuity  § 215.22

A person is guilty of providing a juror with a gratuity when the individual provides a gift or payment to someone who served on a jury.

There are incidents of defendants offering jurors compensation after the completion of a trial. These actions could produce this charge today but did not at the time. For instance, boxing promoter Don King once gave the jurors a trip to a title fight plus an all paid weekend trip to the Bahamas.

Examples of Tampering With a Witness

• Example 1. You are involved in a scheme to use forged checks to pay for merchandise. You have been charged with the offense, and the case will soon go to trial. You ask a friend to perjure himself by testifying that you were with him during the time that the offense occurred. In this case, you are at risk of being charged with Tampering With a Witness.
• Example 2: Let’s use the same scenario as above, with one change. We’ll say that you have been charged in a scheme to use forged checks and your case will soon go to trial. This time, however, you have not asked a friend to perjure himself.

Instead, you had approached a person who witnessed the alleged offense and asked her to change her testimony to say that she was mistaken when she originally identified you as the person who presented the fraudulent check at the store. In this case, too, you are at risk of being charged with Tampering With a Witness.

• Example 3. This scenario involves the same “facts” as above, with one variation. Charged with using forged checks, your case has gone to trial. You approach a juror and speak to him at length, protesting your innocence. You are at risk of being charged with Tampering With a Juror.

Cases Involving Tampering With a Witness or Juror

There are many instances in which charges of Tampering With a Witness or Tampering With a Juror might be filed.

• In one case, People v D’Angelico, Ms. D’Angelico was a defendant in an unrelated civil case. She encountered a juror in the restroom of the courthouse where the case.

was being tried. Ms. D’Angelico actively disparaged the plaintiff in her case to the juror.

She was charged with Tampering With a Juror. In another case, a man tried to get a friend to agree to testify – allegedly falsely – on his behalf. He was charged with Tampering With a Witness.

• In the case against Robert Depalo, the defendant was charged with Tampering With a Witness in the second degree in 2018. Robert Depalo was convicted and sentenced to 7-to-21 years in state prison for defrauding investors of approximately $6.5 million through an investment scheme.

He was subsequently charged and pleaded guilty to two counts of Tampering with a Juror in the first degree for trying to give a juror falsified business records that the judge had excluded from evidence. He was sentenced to one year in prison on the jury tampering charge.

• In United States v. Heicklen, the defendant was charged with attempting to influence the actions of a juror. Standing in front of the entrance to the United States Court for the Southern District of New York, the defendant distributed pamphlets advocating jury nullification. Charges were eventually dismissed.
• In People v D’Angelico, the defendant, Mary Ann D’Angelico had a conversation with a juror in the restroom of the courthouse during which she allegedly intended to influence the outcome of the case against the Elite Model Management agency where she was an executive. The case alleged that she disparaged the plaintiff in a civil case against Elite.

The plaintiff had brought suit against the modeling agency, claiming. Elite fired her for complaining about smoking in the office. Mary Ann D’Angelico allegedly told the juror that the plaintiff had been fired from other jobs and had also sued another former employer. Ms. D’Angelico was charged one count of Tampering with a Juror in the first degree.

• In People v. Sadacca, the defendant acted as an intermediary in a sale of diamonds valued at over $1 million by paying for the diamonds with “an ostensibly certified check” where the certification was false, and the account did not exist.

Arrested on a charge of grand larceny, the defendant requested that one of his associates testify in his upcoming trial. The defendant was charged with two counts of perjury in the first degree and one count of Tampering With a Witness in the fourth degree.

• In the case of People v Gonzalez, the defendant had been charged with assault and rape. The complainant, in that case, alleged that the defendant left her three voice mail messages asking her to say she had lied about the charges.

The defendant was indicted on one count of Tampering with a Witness in the third degree and one count of Intimidating a Witness in the third degree.

What agencies detect, investigate, and prosecute Tampering With a Witness?

There are many law enforcement agencies that can get involved in pursuing an investigation, including local police or the county sheriff’s office. Local law enforcement will often assist in collecting evidence and identifying witnesses.

The police, sheriff and local officers have access to tools such as search warrants and subpoenas, among others, to help advance an investigation.

Other agencies might also get involved. For instance, if the alleged tampering stems from initial criminal charges, the FBI might be asked to participate in the investigation. If the prosecutor decides to move forward and file charges, the district attorney or attorney general’s office will generally prosecute the case.

What are the statutory penalties if you are convicted of this crime?

Penalties for Violating N.Y. Penal Law § 215.1:

Tampering With a Witness in the fourth degree is generally charged as a Class A misdemeanor, with potential penalties that can include:

• Up to one year in jail, or
• Probation of up to three years
• Payment of a fine of up to $1,000

Steeper penalties are imposed with charges of Tampering With a Witness in the first degree, as you can see below.

• Tampering With a Witness in the first degree (§ 215.13)

• Class B felony
• Incarceration of at least one year in prison, or
• Probation
• People “with prior felony convictions likely will have increased sentences imposed, according to the New York State penal code.

What are some of the additional consequences of being convicted?

Nobody wants to have a conviction for Tampering With a Witness or Tampering With a Juror on their record. Consequences can be severe, in addition to potential incarceration.

For example, felony convictions place you at greater risk of receiving heavier penalties for possible future offenses. Moreover, in addition to potential prison terms and possibly fines, having a conviction on your record often makes it difficult to find future employment and put any state or federal licenses that you have at risk.

Convictions can also impact your personal life and relationships, as well.

Legal Defenses to Tampering With a Witness

It is best to consult a lawyer to help you develop your best defense strategy. Legal defenses you can use to fight these charges include arguing that:

• You did not mean to influence the outcome of the trial
• You did not communicate with the witness in an unlawful manner

Defense #1: You didn’t intend to influence the trial outcome

You spoke to a witness. You protest your innocence, but you were not attempting to influence the outcome of the trial. You were merely emotional, given all the stress that you are under as a result of this trial.

Defense #2: Did not communicate with a witness in an unlawful manner

You spoke to a witness briefly. However, you said nothing that would constitute communicating in an unlawful manner.

Call us for help

The legal rules around these crimes are often complicated. Many of these offenses carry potentially steep punishments if you are found guilty. Because of this, you really should seek legal assistance. If you have questions about any of the issues discussed above, or to discuss your case in private with one of our experienced criminal defense attorneys, please contact us.

We have defended many clients against charges of Tampering With a Witness and Tampering With a Juror. We have had strong success rates and want to help you. We have local criminal law offices in your area. Rest assured that what we discuss regarding your case will remain confidential.