Abusers may use a variety of methods to avoid conviction, including tampering with witnesses. Attempts to influence a victim-witness may include the following:
•bribing a victim, MCL 750.122(1).
•threatening or intimidating a victim, MCL 750.122(3).
•interfering with a victim’s ability to attend, testify, or provide information, MCL 750.122(6).
•retaliating against a victim for testifying, MCL 750.122(8).
The witness tampering statute, MCL 750.122, applies “regardless of whether an official proceeding actually takes place or is pending or whether the individual has been subpoenaed or otherwise ordered to appear at the official proceeding if the person knows or has reason to know the other person could be a witness at any official proceeding.” MCL 750.122(9).
See also MCL 750.483a(5)(a), which provides that a person must not “[k]nowingly and intentionally remove, alter, conceal, destroy, or otherwise tamper with evidence to be offered in a present or future official proceeding.”1
MCL 750.122 specifically prohibits tampering through bribery, threats, intimidation, interference, or retaliation.
MCL 750.122(1) prohibits a person from “giv[ing], offer[ing] to give, or promis[ing] anything of value to an individual for any of the following purposes:
(a) To discourage any individual from attending a present or future official proceeding as a witness, testifying at a present or future official proceeding, or giving information at a present or future official proceeding.
(b) To influence any individual’s testimony at a present or future official proceeding.
(c) To encourage any individual to avoid legal process, to withhold testimony, or to testify falsely in a present or future official proceeding.”2
MCL 750.122(1) does not apply to:
•“the reimbursement or payment of reasonable costs for any witness to provide a statement to testify truthfully or provide truthful information in an official proceeding as provided for under . . . MCL 213.66, or . . . MCL 600.2164, or court rule.”3 MCL 750.122(2).
•“[t]he lawful conduct of an attorney in the performance of his or her duties, such as advising a client.” MCL 750.122(5)(a).
•“[t]he lawful conduct or communications of a person as permitted by statute or other lawful privilege.” MCL 750.122(5)(b).
“[C]onduct [that] consisted solely of lawful conduct and [with which] . . . the defendant’s sole intention was to encourage, induce, or cause the other person to testify or provide evidence truthfully[,]” is an affirmative defense to MCL 750.122(1). MCL 750.122(4). The defendant has the burden of proving the affirmative defense by a preponderance of the evidence. Id.
MCL 750.122(3) prohibits a person from “do[ing] any of the following by threat or intimidation:[4]
(a) Discourage or attempt to discourage any individual from attending a present or future official proceeding as a witness, testifying at a present or future official proceeding, or giving information at a present or future official proceeding.
(b) Influence or attempt to influence testimony at a present or future official proceeding.
(c) Encourage or attempt to encourage any individual to avoid legal process, to withhold testimony, or to testify falsely in a present or future official proceeding.”5
MCL 750.122(3) does not apply to:
•“[t]he lawful conduct of an attorney in the performance of his or her duties, such as advising a client.” MCL 750.122(5)(a).
•“[t]he lawful conduct or communications of a person as permitted by statute or other lawful privilege.” MCL 750.122(5)(b).
“[C]onduct [that] consisted solely of lawful conduct and [with which] . . . the defendant’s sole intention was to encourage, induce, or cause the other person to testify or provide evidence truthfully[,]” is an affirmative defense to MCL 750.122(3). MCL 750.122(4). The defendant has the burden of proving the affirmative defense by a preponderance of the evidence. Id.
MCL 750.122(6) prohibits a person from “willfully imped[ing], interfer[ing] with, prevent[ing], or obstruct[ing] or attempt[ing] to willfully impede, interfere with, prevent, or obstruct the ability of a witness to attend, testify, or provide information in or for a present or future official proceeding.”6
“[T]o prove that a defendant has violated MCL 750.122(6), . . . the prosecutor must prove that the defendant (1) committed or attempted to commit (2) an act that did not consist of bribery, threats or intimidation, or retaliation as defined in MCL 750.122 and applicable case law, (3) but was any act or attempt that was done willfully[7] (4) to impede, interfere with, prevent, or obstruct (5) a witness’s ability[8] (6) to attend, testify, or provide information in or for a present or future official proceeding (7) having the knowledge or the reason to know that the person subjected to the interference could be a witness at any official proceeding. In the last part of the definition we use the word interference to include all types of conduct proscribed in subsection 6.” People v Greene, 255 Mich App 426, 442-443 (2003).
MCL 750.122(8) defines retaliate as:
“(a) Commit[ting] or attempt[ing] to commit a crime against a person.
(b) Threaten[ing] to kill or injure any person or threaten[ing] to cause property damage.”9
To determine whether a defendant’s message to a witness constituted “retaliation” for purposes of MCL 750.122(8)(b) requires the prosecution to prove that the defendant “intend[ed] to threaten a witness with death or injury or intend[ed] to communicate such a threat.” People v Johnson, 340 Mich App 531, 545 (2022). It is not necessary to prove that a defendant “actually intended to carry out the threat.” Id.In addition, “[w]hether [a witness] suffered mental anguish or psychological injury as a result of [a] defendant’s message [is] irrelevant to the prosecution’s burden to prove the elements of the crime of witness retaliation.” Id. at 549. In Johnson, the trial court answered a jury question in a manner that created “a real danger that the jury convicted defendant on the basis that [the witness] suffered mental anguish.” Id. However, the Court determined that the language used in 750.122(8)(b) was plain and unambiguous and demonstrated that the Legislature “was addressing threats to kill or physically injure a witness.” Johnson, 340 Mich App at 550. In Johnson, the defendant sent a message to the witness through Facebook Messenger that communicated, among other things, the defendant’s hope that the witness would die “an extremely horrible death” and that the witness “deserve[d] to have his fkn tongue cut off[.]” Id. at 548. The Court concluded that “the evidence and reasonable inferences arising from the evidence were sufficient to establish beyond a reasonable doubt that the message sent to [the witness] contained a threat to ‘kill’ or ‘injure’ [the witness]”. Id. at 548-549.
B.Penalties for Witness Tampering
MCL 750.122 provides for the following penalties for witness tampering:
•“Except as provided in [MCL 750.122(7)(b)] and [MCL 750.122(7)(c)], the person is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $5,000.00, or both.” MCL 750.122(7)(a).
•“If the violation is committed in a criminal case [involving an offense] for which the maximum term of imprisonment is more than 10 years, or the violation is punishable by imprisonment for life or any term of years, the person is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $20,000.00, or both.” MCL 750.122(7)(b).
•“If the violation involves committing or attempting to commit a crime or a threat to kill or injure any person or to cause property damage, the person is guilty of a felony punishable by imprisonment for not more than 15 years or a fine of not more than $25,000.00, or both.” MCL 750.122(7)(c).
•If the violation involves a person “retaliat[ing], attempt[ing] to retaliate, or threaten]ing] to retaliate against another person for having been a witness in an official proceeding[, the person] is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $20,000.00, or both.” MCL 750.122(8).
“[MCL 750.122] does not prohibit a person from being charged with, convicted of, or punished for any other violation of law arising out of the same transaction as the violation of [MCL 750.122].” MCL 750.122(10).
“The court may order a term of imprisonment imposed for violating [MCL 750.122] to be served consecutively to a term of imprisonment imposed for the commission of any other crime including any other violation of law arising out of the same transaction as the violation of [MCL 750.122].” MCL 750.122(11).
An indictment for witness tampering “may be found and filed within 6 years after the offense is committed.” See MCL 767.24(10). However, “[a]ny period during which the party charged[10] did not usually and publicly reside within this state is not part of the time within which the respective indictments may be found and filed.”11 MCL 767.24(11). “The extension or tolling, as applicable, of the limitations period provided in [MCL 767.24] applies to any of those violations for which the limitations period has not expired at the time the extension or tolling takes effect.” MCL 767.24(12).
See People v Blackmer, 309 Mich App 199, 202 (2015) ((finding that because “the plain and unambiguous language of the . . . nonresident tolling provision [of MCL 767.2412] provides that the limitations period [is] tolled for any period in which a defendant [is] not customarily and openly living in Michigan[,]” a “[d]efendant’s subjective intent [to return to Michigan following his or her term of incarceration in another state] is irrelevant[, and] . . . the statute of limitations [is] tolled from the time defendant [leaves] Michigan”).
1 A person in violation of MCL 750.483a(5) is guilty of: “(a) [e]xcept as provided in subdivision (b), the person is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $5,000.00, or both[; or] (b) [i]f the violation is committed in a criminal case for which the maximum term of imprisonment for the violation is more than 10 years, or the violation is punishable by imprisonment for life or any term of years, the person is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $20,000.00, or both.” MCL 750.483a(6).
2 See MCL 750.483a for information on influencing a person’s statement or presentation of evidence “to a police officer conducting a lawful investigation of a crime” through bribery. MCL 750.483a(3)(a).
3 MCL 213.66 provides for witness fees in condemnation proceedings, and MCL 600.2164 regulates the payment of expert witness fees.
4 “‘Threaten or intimidate’ does not mean a communication regarding the otherwise lawful access to courts or other branches of government, such as the otherwise lawful filing of any civil action or police report or which the purpose is not to harass the other person in violation of . . . MCL 600.2907.” MCL 750.122(12)(b).
5 See MCL 750.483a for information on influencing a person’s statement or presentation of evidence “to a police officer conducting a lawful investigation of a crime” through threats or intimidation. MCL 750.483a(3)(b).
6 See also MCL 750.483a(1)(b), which provides that a person must not “[p]revent or attempt to prevent through the unlawful use of physical force another person from reporting a crime committed or attempted by another person,”and MCL 750.483a(1)(c), which prohibits a person from “[i]ntentionally us[ing their] professional position of authority over another person to prevent or attempt to prevent the other person from reporting a crime listed in [MCL 750.136b (child abuse), MCL 750.520b (CSC-I), MCL 750.520c (CSC-II), MCL 750.520d (CSC-III), MCL 750.520e (CSC-IV), or MCL 750.520g (assault with intent to commit CSC involving sexual penetration; assault with intent to commit CSC-II)], that is committed or attempted by another person.”
7 In Greene, 255 Mich App at 442, quoting People v Lerma, 66 Mich App 566, 570 (1976), the Court of Appeals found that willfulness “‘implies knowledge and purpose to do wrong.’”
8 In analyzing the word “ability,” the Court of Appeals in Greene, 255 Mich App at 441, determined that “[a]bility is the power or capacity to do or act physically, mentally, legally, morally, or financially[;] [t]his is a broad definition of the human facility to act, not at all limited to the logical ways in which a tamperer might try to interfere with a witness, including the witness’s ability to travel, appear at the place designated for an ‘official proceeding,’ or biological ability to recall information or provide testimony, whether spoken, written, signed, or communicated in another manner. This breadth implies that [MCL 750.122(6)] makes illegal any act or attempt, no matter its form, to keep the witness from attend[ing], testify[ing], or proivd[ing] information in or for a present future official proceeding’ by affecting the witness’s ability to do so.” (Internal quotation marks and citations omitted).
9 See also MCL 750.483a(1)(d), which provides that a person shall not “[r]etaliate or attempt to retaliate against another person for having reported or attempted to report a crime committed or attempted by another person.”
10 “The term ‘party charged’ simply refers to the party . . . who [is] charged with a crime to which the limitations and tolling provisions of MCL 767.24 apply.” People v James (Joel), 326 Mich App 98, 109 (2018) (the authority relied on by the trial court “for the proposition that, for the tolling provision to apply, defendant must have been a ‘suspect’ or an ‘accused’ prior to the expiration of the untolled limitations, [was] inapposite”).
11 “[T]he tolling provision in MCL 767.24 [does not] violate [a nonresident] defendant’s constitutional right to interstate travel or . . . equal protection under the law[.]” People v James, 326 Mich App 98, 101, 103, 104, 108, 112 (2018) (“the tolling provision [in MCL 767.24] only applies when a party is not usually and publicly residing in Michigan and, therefore, it does not restrict in any way a person’s right to travel within, across, or outside of Michigan’s border”; “residents and nonresidents are not similarly situated for equal-protection purposes,” and there are rational grounds for “[t]he Legislature [to] distinguish[] between Michigan residents and nonresidents for purposes of tolling the statute of limitations for certain crimes, . . . including the investigation, prosecution, and . . . the very discovery of previously unreported crimes”). Although the James Court discussed the nonresident tolling provision that was formerly found in MCL 767.24(8), MCL 767.24(8) contains substantially similar language as the current provision found in MCL 767.24(11).
12 The Blackmer Court discussed the nonresident tolling provision that was formerly found in MCL 767.24(1). However, it contains substantially similar language as the current provision found in MCL 767.24(11).