Anyone with a criminal case has probably wondered, what happens to my case if a witness doesn’t show up for court? Generally speaking, if the prosecutor cannot get the witness to come testify at trial within a certain time period, the case will be dismissed. That is, if the prosecutor is absolutely unable to proceed without that witness.

Perhaps, you may be wishfully thinking that there is something that you can do to cause the witness’ unavailability for court. The question that you should be asking yourself is “what happens if I tamper with a witness?” The short answer, you could be facing additional felony charges for engaging in conduct that makes the witness unavailable for court or causes them to testify falsely.

New York Witness Tampering Charges Explained

Under New York Law, there are four different charges relating to Witness Tampering. Specifically, these charges are:

• Tampering with a Witness in the First Degree,
• Tampering with a Witness in the Second Degree,
• Tampering with a Witness in the Third Degree, AND
• Tampering with a Witness in the Fourth Degree.

Tampering with a Witness in the Fourth Degree is a misdemeanor, while Tampering with a Witness in the First, Second, and Third Degree are felonies of different degrees. All of these charges can result in a criminal record, Importantly, allegations of witness tampering are taken very seriously by the state prosecutors office. These charges can lead to adverse consequences to your underlying case.

Practical Consequences of New York Witness Tampering

If you tamper with a witness in a judicial proceeding, the consequences to your criminal case can be severe. In addition to facing additional charges for tampering with a witness, you may have unintended consequences on the underlying case.

Additional Criminal Charges

In addition to dealing with the underlying case, you may be facing additional charges. If you tamper with a witness and the prosecutor can prove it, then you may have a second case to deal with. Charges that can be brought for tampering with a witness include:

• Witness tampering,
• Criminal contempt – if there is an order of protection that is violated as a result of contacting the witness,
• Harassment – if the witness claims to be alarmed and annoyed as a result of your communications,
• Menacing – if the witness is put in fear of bodily harm,
• Assault – if the witness sustains a bodily injury as a result of the defendant’s intentional, negligent or reckless act.

Importantly, the prosecutor will most likely ask that these charges run consecutively to the underlying charge. That is to say, tamper with a witness jail time will be served after the jail time on the underlying case. While in most cases, the time can be served concurrently (or at the same time), for these types of cases, the prosecutor will likely insist on consecutive time.

Forfeiture of Your Right to Cross-Examine

Specifically, if the prosecutor can prove that you engaged in conduct that led to the witness not coming to court, or testifying falsely, then the prosecutor can ask the judge for what’s called a Sirois Hearing.

A Sirois hearing is a special hearing that is conducted before a trial judge during which the prosecutor must prove two things:

1. Defendant engaged in improper conduct toward the witness, AND
2. This conduct at least in part resulted in the witness’ unavailability for a court proceeding.

The standard that the prosecutor must meet in establishing that the Defendant’s conduct resulted in the witness’ unavailability is by “clear and convincing evidence.” While the standard is lower than the standard of beyond a reasonable doubt that is commonly used in criminal cases, it is still a rather high standard that the prosecutor must meet. Because of the high standard of proof and the unavailability of the witness, the rules of evidence are more relaxed in the Sirois hearing. The courts are willing to admit circumstantial (rather than direct evidence) to establish that the Defendant’s conduct resulted in the witness’ availability.

If the prosecutor is able to meet the burden of proof by clear and convincing evidence that the defendant tampered with a witness, then the remedy that the Court will order is the forfeiture of the cross-examination of that witness’ statement. That means, that any sort of statement that the witness has made on the case against the defendant will be admitted at trial. This will be permitted even without the witness coming in to court.

Under New York Case law, the forfeiture of cross-examination is not limited to just Grand Jury Testimony. Rather, any prior testimony of the witness will be admissible, so long as it does not violate due process.

Sentencing for New York Witness Tampering Charges

If you tamper with a witness, you can face significant penalties. The exact sentencing range will depend on which New York Witness Tampering charge you are found guilty of. Specifically, the sentencing ranges for New York Witness Tampering charges are:

• Tampering with a Witness in the First Degree – minimum 8 1/3 years in jail, maximum 25 years in jail.
• Tampering with a Witness in the Second Degree: minimum probation (only if there are mitigating circumstances), maximum up to 7 years jail.
• Tampering with a Witness in the Third Degree: minimum probation, maximum up to 4 years jail.
• Tampering with a Witness in the Fourth Degree: minimum time served, maximum 1 year in jail.

Federal Witness Tampering Charges Explained

Federal Tampering with a Witness charges are codified in 18 U.S.C. Code Section 1512. Under federal law, it is a crime to kill, attempt to kill, use physical force or threaten the use of physical force against another person with intent to prevent their attendance or testimony at an official proceeding. Federal tamper with a witness charges have different sentencing depending on the nature of the conduct alleged. Specifically, the sentencing ranges for Federal Witness Tampering charges are:

• Murder – Life imprisonment,
• Attempted Murder, Use or Attempted Use of Physical Force Against Another – Imprisonment up to 30 years,
• Threatened Use of Force Against Another – Imprisonment up to 20 years,
• Intimidation, Threats, Coercion or Intentionally Misleading – Imprisonment up to 20 years.

Contact Top Rated New York Defense Attorneys

If you or your loved one would like to further discuss what happens if you tamper with a witness or any other concerns you have, you need top rated New York Criminal Defense attorneys by your side. Check out our client testimonials and contact us to schedule your complimentary consultation today.