In general, a defendant in a criminal court proceeding should not talk to a witness. This is because:
- the judge usually orders the defendant not to have contact with any witnesses, and
- speaking with a witness could lead to charges of intimidating or dissuading a witness,
- any statements a defendant makes to a third party could be used against him or her in court.
Most jurisdictions say that you intimidate a witness if you dissuade, intimidate, or tamper with the witness. If you commit this crime, then a prosecutor could charge you for both:
- intimidating a witness or witness tampering, and
- the underlying crime that you were originally charged with.
Note that there are times when a witness is a defendant’s spouse, family member, friend, or co-worker. In these cases, a defendant can still come into contact with the witness, but the defendant should avoid discussing any details of the case.
1. Do judges order defendants not to speak to witnesses?
Most often, yes. Judges in criminal cases usually order defendants to stay away and have no contact with:
- the alleged “victim,”
- any witnesses, and
- any potential witnesses.1
This is true for both misdemeanor and felony criminal proceedings.
Judges usually issue court orders for criminal defendants to stay away from witnesses at arraignment, which is the first official court hearing after a state files criminal charges.
If you fail to comply with the order, you are considered in “contempt of court.” A result is that the prosecutor may ask the judge to increase or revoke your bail, or even place you in custody.2
2. What about charges of witness tampering?
You should try to prevent speaking with witnesses even if a judge does not order you as such. This is because contacting a witness could lead to a prosecutor filing charges of witness tampering.
Some states refer to this crime as “dissuading a witness” or “intimidating a witness.”
The criminal laws of most states say that you commit this criminal offense if you dissuade, intimidate, or tamper with a witness or “victim.”
In simple terms, this means attempting to prevent a witness or victim from:
- reporting or testifying about a crime, or
- otherwise cooperating with law enforcement or prosecutors.3
Examples of the offense include:
- calling a witness in a domestic violence case and saying that “bad things happen to people who snitch.”
- offering cash to a bartender in a DUI case to lie and say that the person didn’t serve the defendant any alcohol.
- bribing a potential witness to not offer witness testimony or even take the witness stand.
Many states say that a prosecutor can charge the crime of intimidating a witness as either a misdemeanor or a felony. Penalties can include several years in county jail or state prison.
3. What if a witness is a family member or friend?
Sometimes a witness can be very close to a defendant, as in cases where the witness is a defendant’s spouse, family member, friend, or co-worker.
In these instances, it is hard to say that you cannot have any contact with the witness. This is especially true considering that criminal trials can go on for months.
When a witness is close to the defendant, the defendant can usually still speak and come into contact with the witness, but the defendant should avoid talking with the witness about any details of the case.
If a defendant or witness feels it necessary to speak about the case, they should do so in the presence of the defendant’s criminal defense attorney.
Note that if you have any questions about whether or not you should contact a witness, you should get legal advice from your lawyer.
4. Who are common witnesses in criminal cases?
In theory, a prosecutor or defense lawyer can subpoena just about anyone to testify at a criminal trial.
In general, though, some common witnesses include:
- “victims,”
- experts,
- people who actually witness a crime,
- people who can cast doubt on a witness’s testimony,
- a person that can support a defendant’s alibi, and
- a person that can speak about the facts of the case.
Note that if a prosecutor calls a witness, the person or parties are often referred to as a “state witness” or “prosecution witnesses.” If your criminal defense lawyer or public defender calls a witness, the person is usually referred to as a “defense witness.”
Most witnesses are subject to both direct and cross-examination.
Legal References:
- Judges usually make this same order in civil cases.
- See, for example, Rev. Code of Washington 7.21.010 and 7.21.030.
- See, for example, California Penal Code 136.1 PC.
