united-states criminal-law police witnesses never-talk-to-police
When does a warning not to talk to the police become &quot;witness tampering&quot;?
<p>Every competent criminal defense attorney will advise their client (or anyone else) NEVER to talk to the police. <a href="https://www.georgiacriminallawyer.com/never-speak-to-the-police" rel="nofollow noreferrer">Law professor James Duane gave a 45-minute lecture on this exact subject.</a> So, obviously if a person with a cop at their door calls up Duane and asks him, &quot;There is a cop at the door and he wants to ask me some questions.&quot; Professor Duane would obviously tell the person, &quot;Under no circumstances should you say anything to the police.&quot; It would seem unlikely that Duane would be prosecuted for witness tampering.</p>
<p>However, let's imagine that the same person does not call Professor Duane, but calls their brother. Can the brother be charged with witness tampering?</p>
<p>At what point does advising a person not to talk to the police become &quot;witness tampering&quot;?</p>

<p>This question and many related ones are <a href="https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4699&amp;context=clr" rel="nofollow noreferrer">analysed in detail</a> by Eugene Volokh, in a long paper that is worth reading in its entirety if you are interested in the topic.</p>
<blockquote>
<p>The [Supreme] Court has offered “speech integral to [illegal] conduct”
as  one  of  the  “well-defined  and  narrowly  limited  classes  of
speech”  excluded  from  First  Amendment  protection.  But  if
this exception is indeed to be well defined and narrowly limited,
courts  need  to  explain  and  cabin  its  scope.   This  Article — the
first, to my knowledge, to consider the exception in depth —
aims to help with that task.</p>
</blockquote>
<p>On threats, he says:</p>
<blockquote>
<p>Companies are generally barred from firing employees for voting for a union, and unions are  generally  barred  from  retaliating  against  employees  for their  speech.  The  Court  therefore  concluded  that  speech
that  threatens  unlawful  retaliation  is  itself  unlawful.</p>
</blockquote>
<p>On blackmail, he says:</p>
<blockquote>
<p>[...] telling  black  citizens  “stop
shopping at white-owned stores or we’ll publicize your behavior
to your neighbors and fellow church members” is similarly constitutionally protected. On the other hand, “vote for this civil rights bill or I’ll disclose  that  you  cheated  on  your  wife”  is  likely  unprotected.</p>
</blockquote>
<p>In general the line where the First Amendment protections end and criminal speech begins is surprisingly vague. General advice to avoid self-incrimination by not answering questions from the police is clearly protected. Threatening a witness with violence is clearly not. In between are shades of grey.</p>

<p><strong>At what point does advising a person not to talk to the police become &quot;witness tampering&quot;?</strong></p>
<p>When the brother's advice includes actual or threatened physical force.</p>
<p>Witness tampering is defined by <a href="https://www.law.cornell.edu/uscode/text/18/1512" rel="nofollow noreferrer">18 U.S. Code § 1512</a> to include:</p>
<blockquote>
<p>(2) Whoever uses physical force or the threat of physical force against any person, or attempts to do so, with intent to —</p>
<p>...</p>
<ul>
<li>(C) hinder, delay, or prevent the communication to a law enforcement officer...</li>
</ul>
<p>...</p>
<p>shall be punished as provided [below]</p>
</blockquote>

<p>A conviction for witness tampering generally requires something more than simply giving advice.</p>
<p>Under <a href="https://www.law.cornell.edu/uscode/text/18/1512" rel="nofollow noreferrer">federal law</a>, witness tampering requires the use or threat of force to prevent a witness from cooperating with the police. Pure advice against cooperating cannot be a crime.</p>
<p>Under <a href="https://www.nysenate.gov/legislation/laws/PEN/215.10" rel="nofollow noreferrer">New York law</a>, a conviction requires that the defendant induces the witness to dodge testifying or engages in some kind of deceit designed to affect the witness's testimony.</p>
<p>The broadest witness-tampering statute I'm aware of is <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&amp;sectionNum=136.1" rel="nofollow noreferrer">California's</a>, which prohibits both &quot;knowingly and maliciously&quot; dissuading a witness from attending or testifying at a trial, and dissuading a witness from reporting a crime or seeking charges based on that crime. I'm not familiar with how the courts have interpreted this law, but it seems to raise some serious First Amendment problems.</p>
