ARS § 13-2804 is the Arizona statute that defines the crime of tampering with a witness. You commit this offense if you communicate with a witness to try and have that person withhold certain testimony, testify falsely, or avoid testifying.

A violation of this law is a Class 6 felony punishable by a prison term of up to two years.

The language of ARS § 13-2804 reads as follows:

A. A person commits tampering with a witness if the person knowingly communicates, directly or indirectly, with a witness in any official proceeding or a person he believes may be called as a witness to do any of the following:

1. Unlawfully withhold any testimony.

2. Testify falsely.

3. Absent himself from any official proceeding to which he has been legally summoned.

4. Evade a summons or subpoena.

B. Tampering with a witness is a class 6 felony.

Examples

• telling a bartender/witness to lie in a DUI case and testify that he/she never saw the defendant have a drink.
• trying to convince a spouse/witness that she should not show up to testify in a domestic violence case.
• writing letters to family members called as witnesses in a grand jury proceeding and asking them to withhold testimony.

Defenses

Criminal defense lawyers draw upon several legal strategies to contest criminal charges brought under this criminal code section. A few common ones include attorneys showing that:

• a defendant merely communicated with a witness without anything more,
• the accused did not try to influence a “witness,” and/or
• the witness was not part of an official proceeding.

Penalties

Witness tampering, under Arizona’s criminal laws, is a Class 6 felony (as opposed to a misdemeanor offense). The crime is punishable by:

• a state prison term of up to two years, 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 “tampering with a witness”?

People are guilty of witness tampering in these criminal cases if:

1. they knowingly communicate, either directly or indirectly,
2. with a witness in any official court proceedings, and
3. do so to have the witness withhold certain testimony, testify falsely, or avoid testifying.¹

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.² Examples include:

• grand jury proceedings,
• a proceeding in front of the Arizona Supreme Court or an appellate court,
• trials in Superior Court,
• state or county judicial proceedings, and
• hearings held during the legal process or criminal justice system.

2. Are there defenses to ARS 13-2804 charges?

People accused of witness tampering have the right to challenge the accusation with a legal defense. A few common defenses include accused people showing that:

1. they did not ask a witness to do anything.
2. they did not speak with a “witness.”
3. the witness was not part of an official proceeding.

2.1 Simple communication

This law does not prevent a person from communicating with a witness. But it does prohibit someone from communicating with such person and asking him/her to withhold testimony or testify falsely. This means it is a defense for accused people to show that they communicated with a witness without asking him/her to do anything.

2.2 No witness

People are only guilty under this statute if they unlawfully communicate with a witness. Therefore, it is always a defense for an accused to show that the person he/she spoke with was not a witness. Perhaps, for example, a person engaged in unlawful communications with some non-witness bystander.

2.3 No official proceeding

Recall that people are only guilty of witness tampering if they communicate with a witness in an official proceeding. Further, “official proceeding” has a specific definition under Arizona law. A defense, then, is for defendants to show that the witness they spoke with was not one involved in an official proceeding. Maybe, for example, the witness was to testify at a mock trial.

3. What are the penalties?

A violation of ARS 13-2804 is a Class 6 felony.³ The crime is punishable by:

• custody in state prison for up to two years, and/or
• a maximum fine of $150,000.

If the offense gets classified as a “dangerous offense,” then it is punishable by a state prison term of up to three years.

4. Are there related offenses?

There are four crimes related to tampering with a witness. These are:

1. threatening or intimidating – ARS 13-1202,
2. extortion – ARS 13-1804,
3. obstruction of justice – ARS 13-2409, and/or
4. influencing a witness – ARS 13-2802.

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
• threaten to cause a serious public inconvenience (such as a building evacuation).

Unlike with threatening or intimidating, witness tampering does not require a defendant to threaten any party. The focus is on any unlawful communications.

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” finger).

Extortion is a more serious crime under Arizona law than witness tampering. 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 the violation of any criminal statute to a police officer.

Note that while ARS 13-2804 applies to communications with a witness, this statute applies to any person trying to communicate with a police officer or a law enforcement official.

4.4 Influencing a witness – ARS 13-2802

Under ARS 13-2802, influencing a witness is the crime where people 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.

Unlike with ARS 13-2804, a violation of this statute 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 an unlawful intent.

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