ARS § 13-2802 is the Arizona statute that defines the crime of influencing a witness. You commit this offense if you threaten or offer some benefit to a witness with the intent to either influence that person’s testimony or persuade the person not to testify.
A violation of this law is a Class 5 felony punishable by over two years in state prison.
The language of ARS § 13-2802 reads as follows:
A. A person commits influencing a witness if such person threatens a witness or offers, confers or agrees to confer any benefit upon a witness in any official proceeding or a person he believes may be called as a witness with intent to:
1. Influence the testimony of that person; or
2. Induce that person to avoid legal process summoning him to testify; or
3. Induce that person to absent himself from any official proceeding to which he has been legally summoned.
B. Influencing a witness is a class 5 felony.
- threatening a person’s life if they testify in an Arizona DUI criminal trial.
- offering a witness $50,000 to change the witness’s testimony in a murder
- agreeing to let a potential witness stay at a vacation home to avoid testifying in a domestic violence grand jury proceeding.
Defense counsel can draw upon several legal approaches to help defendants contest charges under this criminal code section. Some of these include showing that the defendant:
- did not act with criminal intent,
- did not try to influence a witness, and/or
- was entrapped.
- custody in state prison for up to two years and six months, and/or
- a maximum fine of $150,000.
In this article, our criminal defense attorneys will discuss what the law is under this statute, defenses available if charged, the penalties for a conviction, and related crimes.
1. How does Arizona law define “influencing a witness”?
People in Arizona are guilty of influencing a witness when:
- they threaten or offer a benefit to a witness,
- such person is called as a witness in an official proceeding (usually via a subpoena), and
- they make their threat or offering to influence that person’s testimony or persuade the witness not to testify.i
For purposes of this statute, “official proceeding” means a proceeding heard before any legislative, judicial, administrative, or other governmental agency or official authorized to hear evidence under oath. Examples include:
- grand jury proceedings,
- a proceeding in front of the Arizona Supreme Court,
- trials in Superior Court,
- state or county judicial proceedings,
- hearings held in front of police officers/law enforcement personnel to determine whether or not to issue a search warrant.
2. Are there defenses to charges brought under ARS 13-2802?
In these criminal cases, people accused of a crime can challenge the accusation with a legal defense. Three common defenses include defendants showing that:
- they did not act with criminal intent.
- they did not try to influence a “witness.”
- they were entrapped.
2.1 No criminal intent
People are only guilty under this statute if they act with an intent to:
- influence a witness’s testimony, or
- persuade the witness to not testify or avoid the legal process.
A defense is for accused people to show that they did not act with one of these specific aims. Perhaps, for example, they offered a benefit to a witness as an act of goodwill.
2.2 No witness
A defendant is not guilty of influencing a witness unless the person he/she targeted was an actual witness, or a potential witness, in an official proceeding. Therefore, a defense is for an accused to show that he/she did not target a witness. Maybe, for example, an accused attempted to influence some bystander that was never called as a witness.
After an undercover sting operation, people are often arrested and booked for this offense. Note, though, that a charge must get dropped if the officer lured a suspect into committing the crime.
This “luring” is known as entrapment. It includes overbearing official conduct of police officers, like pressure, harassment, fraud, flattery, or threats. Entrapment is an acceptable legal defense provided that the accused shows he only influenced a witness because of the entrapment.
3. What are the penalties?
Influencing a witness is a Class 5 felony.ii The crime is punishable by:
- a term in state prison for up to two years and six months, and/or
- a maximum fine of $150,000.
If the crime gets classified as a “dangerous offense,” it can be punished with a jail term of up to four years.
4. Are there related crimes?
There are four offenses related to influencing a witness. These are:
- threatening or intimidating – ARS 13-1202,
- extortion – ARS 13-1804,
- obstruction of justice – ARS 13-2409, and/or
- tampering with a witness – ARS 13-2804.
4.1 Threatening or intimidating – ARS 13-1202
Per ARS 13-1202, threatening or intimidating is the offense where people either threaten to:
- physically injure someone, or
- cause a serious public inconvenience (such as a building evacuation).
Note that if a person threatens to physically injure a witness with the intent to influence the witness’s testimony, then a prosecutor can charge the person with both:
- threatening and intimidating, per ARS 13-1202, and
- influencing a witness, per ARS 13-2802.
4.2 Extortion – ARS 13-1804
Per ARS 13-1804, extortion is the crime where people take or try to take another person’s property by threatening to do some future act (like break the “victim’s” arm).
Arizona law treats extortion as a more severe offense than influencing a witness. Extortion can lead to a Class 2 felony punishable by over 12 years in state prison.
4.3 Obstruction of justice – ARS 13-2409
Under ARS 13-2409, obstruction of justice is the offense where people attempt to disrupt, delay, or prevent the communication of information regarding violating any criminal statute to a police officer.
Note that while ARS 13-2802 applies solely to witnesses and potential witnesses, this statute applies to any person trying to report a crime to the police.
4.4 Witness tampering – ARS 13-2804
Under ARS 13-2804, witness tampering is the crime where people communicate with a witness to try and have the witness:
- withhold certain testimony,
- testify falsely, or
- avoid testifying.
While ARS 13-2804 applies to witness tampering, ARS 13-2809 applies to the crime of tampering with physical evidence.
Unlike with ARS 13-2804, a violation of ARS 13-2802 requires that a person threaten a witness or offer the witness some benefit. ARS 2804 criminalizes a person’s mere communications with a witness if done with unlawful intent.