FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 7 - CHAPTER 77
Go to Volume
7 Table of Contents - Go to Chapter
77 Table of Contents
77.13 Witness Intimidation
77.13.3 Witness Intimidation: Defenses And Defense Theories
77.13.3.1 Witness Intimidation: Defense Theory Of No Intent To Affect Testimony
77.13.3.2 Threats Of Force Or Violence Against Witness Or Crime Victim: Lack Of Intent To Frighten As Defense Theory
77.13.3.3 Witness Intimidation: Additional Defenses And Defense Theories
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 7 - CHAPTER 77
77.13.3.1 Witness Intimidation: Defense Theory Of No Intent To Affect Testimony
RATIONALE: Without an explanatory instruction the jury may not understand that the defendant must intend to affect the testimony of the witness to be convicted of witness intimidation.
POINTS AND AUTHORITIES: Witness intimidation requires proof of a specific intent to affect a potential witness' testimony. (See U.S. v. Johnson (5th Cir. 1978) 585 F2d 119, 128 [specific intent to impede the administration of justice is an essential element of the federal offense of obstructing justice by influencing or injuring an officer, juror or witness]; see also People v. Womack (CA 1995) 40 CA4th 926, 929-30 [47 CR2d 76]; People v. Lyons (CA 1991) 235 CA3d 1456, 1460 [1 CR2d 763] [requirement of specific intent to prevent witness from testifying]; State v. Hall (LA 1983) 441 So2d 429, 432 [to convict defendant of public intimidation, State must prove that defendant actively desired to influence conduct of witness].) Therefore, the jury should be instructed that the prosecution must prove the defendant had the specific intent to affect the testimony of a potential witness.
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
RESEARCH NOTE:
Annotation, Validity, Construction, And Application Of State Statutes Imposing Criminal Penalties For Influencing, Intimidating, Or Tampering With Witnesses, 8 ALR4th 769.
See generally, FORECITE National™ 305.23.4 [Witness Intimidation].
SAMPLE INSTRUCTION:
The charged offense requires an intent to affect the testimony of a potential witness. If you have a reasonable doubt whether the defendant intended to affect the testimony of a potential witness you must give the defendant the benefit of that doubt and return a verdict of not guilty.
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 7 - CHAPTER 77
77.13.3.2 Threats Of Force Or Violence Against Witness Or Crime Victim: Lack Of Intent To Frighten As Defense Theory
PRACTICE NOTE: See Commonwealth v. Conley (MA 1993) 606 NE2d 940, 943-44 [jury instructions regarding offense of intimidation of witness which left out essential element that jury had to find that defendant's endeavor to influence complainant was by intimidation force or threats of force was erroneous].)
RESEARCH NOTES:
See generally, FORECITE National™ 305.23.4 [Witness Intimidation].
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 7 - CHAPTER 77
77.13.3.3 Witness Intimidation: Additional Defenses And Defense Theories
PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)