You have been talking to a witness in your friend’s criminal case in an effort to gain information and help your friend out. However, this witness wants to take you down too. Now, you find yourself facing a criminal charge for bribing a witness.
According to section of 138 (a) of The California Penal Code, bribing a witness from not attending a trial or other judicial proceeding is defined as follows:
(a) Every person who gives or offers or promises to give to any witness or person about to be called as a witness, any bribe upon any understanding or agreement that the person shall not attend upon any trial or other judicial proceeding, or every person who attempts by means of any offer of a bribe to dissuade any person from attending upon any trial or other judicial proceeding, is guilty of a felony.
Therefore, section 138(a) punishes the person who bribes a witness from attending the trial or other judicial proceeding.
In contrast, section 138 (b) provides for punishment for a witness who accepts a bribe to not attend a trial or other judicial proceeding. Specifically, section 138(b) provides that:
(b) Every person who is a witness, or is about to be called as such, who receives, or offers to receive, any bribe, upon any understanding that his or her testimony shall be influenced thereby, or that he or she will absent himself or herself from the trial or proceeding upon which his or her testimony is required, is guilty of a felony.
Proving the Bribery Charge
In order for the prosecution to prove the charge of bribing a witness under Penal Code section 138(a), the prosecutor needs to prove beyond a reasonable doubt that:
- The defendant (gave[,]/ [or] offered[,]/ [or] promised) a bribe to (a witness/ [or] a person about to be called as a witness) [or to someone else acting on the (witness’s/ [or] person’s) behalf]; AND
- The defendant acted with the corrupt intent that the bribe would unlawfully persuade the (witness/ [or] person) not to attend (a trial/ [or] other judicial proceeding).
A bribe means something of present or future value or advantage, or a promise to give such a thing, that is given or offered with the corrupt intent to unlawfully influence the witness not to attend a trial or judicial proceeding.
Offering a bribe does not require specific words or behavior, as long as the language used and the circumstances clearly show intent to ensure that the witness will not attend a trial and/or judicial proceeding. The thing offered does not need to actually be given, exist at the time it is offered, or have a specific value.
According to California law, a person acts with corrupt intent when he or she acts to wrongfully gain a financial or other advantage for himself, herself, or someone else.
As used here, Witness means someone (or a person the defendant reasonably believed to be someone):
- Who knows about the existence or nonexistence of facts relating to a crime
- Whose declaration under oath has been or may be received as evidence
- Who has reported a crime to a (peace officer and/or prosecutor and/or probation or parole officer and/or correctional officer and/or judicial officer); or
- Who has been served with a subpoena issued under the authority of any state or federal court.
A person is about to be called as a witness if he or she knows or has been told that he or she will be called as a witness and/or if he or she knows material information relating to the issues in a case that has been or may be filed.
The witness or person giving information does not need to have accepted the bribe and/or have been influenced by the bribe and/or have failed to attend the trial and/or judicial proceeding.
Sentences for Bribing a Witness
A conviction for bribing a witness under Penal Code sections 138 (a) or accepting a bribe under section 138 (b) is a straight felony. It does not wobble as a misdemeanor. A person convicted of either of these offenses can be given a prison sentence of either sixteen (16) months, two (2) years, or three (3) years.
Defending Yourself against Bribing a Witness Charges
The charge of bribing a witness has three essential elements to it. The first is the bribe. Second is the witness. Third, is corrupt intent. If the prosecutor can’t prove just one of these three elements beyond a reasonable doubt to a judge or jury then the accused cannot be convicted of bribing a witness. A skilled defense lawyer may help to show that the prosecutor’s case lacks merit by examining:
- The prior acts of moral turpitude or dishonesty of the witness;
- Whether the defendant knew the person was a witness or about to be a witness;
- A bribe was given, offered or promised to a witness or someone acting on the witness’s behalf; or
- The defendant acted with corrupt intent.
Of course there are other issues that a defense lawyer should analyze and which are specific to the facts of your case.
Finding the Right Criminal Defense Attorney
Contact Ahmed & Sukaram, Attorneys at Law, immediately if you or someone you know has been arrested or charged with bribing a witness. You may be innocent of the charge and need to move quickly to start preparing your defense.