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Criminal Jury Instructions

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4.5-3  Tampering with a Witness -- § 53a-151

Revised to December 1, 2007 (modified November 1, 2008)

The defendant is charged [in count ___] with tampering with a witness.  The statute defining this offense reads in pertinent part as follows: 

a person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, (he/she) induces or attempts to induce a witness to (testify falsely / withhold testimony / elude legal process summoning (him/her) to testify / absent (himself/herself) from any official proceeding).

For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:  

Element 1 - Witness in an official proceeding
The first element is that the defendant believed that an official proceeding was pending or about to be instituted1 and that <insert name of witness> was likely to be a witness.  An "official proceeding" is any proceeding held or that may be held, before any legislative, judicial, administrative or other agency or official authorized to take evidence under oath, including any referee, hearing examiner, commissioner or notary or other person taking evidence in connection with any proceeding.  A "witness" is any person summoned or who may be summoned to give testimony in an official proceeding.  In this case, the state alleges that <insert name of witness> was a witness who was to appear before <insert type of proceeding>. 

Element 2 - Influence
The second element is that the defendant induced or attempted to induce a witness to (testify falsely / to withhold testimony / to elude legal process summoning the witness to testify / to absent (himself/herself) from an official proceeding).

It is immaterial whether the defendant was successful in producing the result (he/she) intended.  It is sufficient if the defendant specifically intended by (his/her) conduct to cause a particular witness to testify falsely or to refrain from testifying at all.  A person acts "intentionally" with respect to a result when (his/her) conscious objective is to cause such result.  <See Intent: Specific, Instruction 2.3-1.> 

Conclusion

In summary, the state must prove beyond a reasonable doubt that 1) the defendant believed that <insert name of witness> was to be a witness before <insert type of proceeding>, and 2) the defendant induced or attempted to induce <insert name of witness> to <insert specific allegations>.

If you unanimously find that the state has proved beyond a reasonable doubt each of the elements of the crime of tampering with a witness, then you shall find the defendant guilty.  On the other hand, if you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements, you shall then find the defendant not guilty.
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1 The requirement that the defendant believe that an official proceeding is "about to be instituted" is satisfied "if a defendant, knowing he has been implicated as a participant in a crime, threatens a likely witness to that crime, to withhold evidence from the police."  State v. Pommer, 110 Conn. App. 608, 618, cert. denied, 289 Conn. 951 (2008).

Commentary

In rejecting the defendant's argument that the statute was unconstitutionally vague, the Supreme Court, in State v. Cavallo, 200 Conn. 664, 669 (1986), stated that "[t]he legislature's choice of the verb 'induce' connotes a volitional component of the crime of tampering . . .  [T]he statute focuses on the mental state of the perpetrator."   "[A] defendant is guilty of tampering with a witness only if he intends that his conduct directly cause a particular witness to testify falsely or to refrain from testifying at all. . . .  As long as intent is a necessary element of the crime under § 53a-151, which penalizes only verbal acts relating to a specific pending prosecution, the statute casts no chilling effect on general exhortations concerning cooperation with judicial proceedings."  Id., 672.  See also State v. Coleman, 83 Conn. App. 672, 690-91, cert. denied, 271 Conn. 910 (2004), cert. denied, 544 U.S. 1050, 125 S.Ct. 2290, 161 L.Ed.2d 1091 (2005) (the court's instruction accurately conveyed the element of intent to affect the testimony of a witness); State v. Higgins, 74 Conn. App. 473, 487-89, cert. denied, 262 Conn. 950 (2003) (calling victim and instructing her to tell the police that "nothing ever happened" clearly comes within the meaning of "induce"). 

In State v. Jimenez, 74 Conn. App. 195, cert. denied, 267 Conn. 947 (2002), the defendant was charged with sexual assault, kidnapping, risk of injury to a minor, accessory to tampering with a witness, and hindering prosecution.  The court charged the jury that it could use the evidence presented on the hindering prosecution and tampering with a witness as consciousness of guilt evidence on the other three charges.

 


 

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