CO Code § 18-8-707 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 8 - Offenses - Governmental Operations|Part 7 - Victims and Witnesses Protection|§ 18-8-707. Tampering With a Witness or Victim

  A person commits tampering with a witness or victim if he intentionally attempts without bribery or threats to induce a witness or victim or a person he believes is to be called to testify as a witness or victim in any official proceeding or who may be called to testify as a witness to or victim of any crime to:   Testify falsely or unlawfully withhold any testimony; or    Absent himself from any official proceeding to which he has been legally summoned; or    Avoid legal process summoning him to testify.       Tampering with a witness or victim is a class 4 felony.     History. Source: L. 84: Entire part added, p. 502, § 4, effective July 1.    Editor's note:   This section is similar to former § 18-8-605 as it existed prior to 1984.   ANNOTATION   Annotator's note. Since § 18-8-707 is similar to former § 18-8-605 , relevant cases construing that provision have been included with the annotations to this section.   History of statute. The tampering-with-a-witness statute defines a new statutory crime and does not have its genesis in subornation of perjury. People v. Francois, 198 Colo. 249 , 598 P.2d 144 (1979).   The drafters of the model penal code from which former § 18-8-605 derived considered subornation of perjury to be a superfluous restatement of accomplice liability and proposed that persons accused of conduct amounting to subornation of perjury be prosecuted under the accomplice and solicitation statutes. People v. Francois, 198 Colo. 249 , 598 P.2d 144 (1979).   Success not element of crime. Under former § 18-8-605 , it was not necessary that the defendant succeed in his attempt or actually induce the witness to do anything. People v. Moyer, 670 P.2d 785 (Colo. 1983).   Statute does not require that the attempt to tamper actually be communicated to the victim or witness. People v. Brooks, 2017 COA 80 , 454 P.3d 270, vacated by and aff'd on other grounds, 2019 CO 75M, 448 P.3d 310.   The plain language of subsection (1)(a) does not require the people to prove an attempt to interfere with actual testimony anticipated to be offered at a trial, hearing, or other sworn proceeding but only that the defendant attempted to influence a witness or victim to testify falsely or to unlawfully withhold testimony that may be offered in the future, and the witness or victim need not be under subpoena or legal summons at the time of the contact. People v. Cunefare, 102 P.3d 302 (Colo. 2004).   Witness or victim must be legally summoned to be a witness under subsection (1)(b). To find a defendant guilty under subsection (1)(b), the jury must have received evidence that the defendant attempted to have the victim absent herself or himself from a proceeding to which she or he had been legally summoned. The mere presence of the victim at trial does not permit the jury to conclude that she or he was legally summoned to appear at trial. People v. Yascavage, 80 P.3d 899 (Colo. App. 2003), aff'd, 101 P.3d 1090 (Colo. 2004).   Pre-printed statement defendant gave to witnesses falls within the proscriptions of this section, and this section is not unconstitutional as applied to defendant. The pre-printed statement said that the witnesses had a constitutional right to not answer questions of the grand jury and that they should exert their constitutional right to remain silent and to not incriminate themselves. The statement is not equivalent to leafleting or public commentary. It falls within conduct proscribed by this section by intentionally attempting to interfere with a witness's testimony and to induce witnesses to unlawfully withhold testimony. People v. Nozolino, 2014 COA 95 , 350 P.3d 940.   Defendant could not have abandoned the crime of tampering with a witness once he attempted to influence the victim, because the crime was completed when the attempt was made. People v. Scialabba, 55 P.3d 207 (Colo. App. 2002).   Materiality not element of offense. A trial court's instruction injecting the element of materiality into the tampering-with-a-witness statute was improper. People v. Francois, 198 Colo. 249 , 598 P.2d 144 (1979).   Probable cause established. Where the evidence and the reasonable inferences which could be drawn from it established that the defendant told the witness that if she or 10 people testified before the grant jury, the defendant would sue the witness or any of the 10 persons for perjury and that the defendant was aware that the witness had talked with the district attorney at the time his statements were made, this evidence established probable cause to believe that the defendant committed the crime of tampering with a witness. People v. Moyer, 670 P.2d 785 (Colo. 1983).   Portions of written communications between the defendant and his wife were for the purpose of aiding the crime of witness tampering and were held to be admissible and not confidential. People v. Fox, 862 P.2d 1000 (Colo. App. 1993).   Prosecution did not meet its burden to prove that defendant attempted to induce his family members to unlawfully withhold testimony. Defendant's e-mail to his mother and brother suggesting that they not cooperate with a police investigation is not itself sufficient evidence to convict defendant of witness tampering. People v. Nozolino, 2014 COA 95 , 350 P.3d 940.