Witness Tampering and the Hearsay Exception

When there are serious allegations against you through the form of witness testimony, it can be tempting to do anything to make it go away. However, intimidating a witness or attempting to bribe a witness so that he or she will recant his/her statement is not only not an option, but also comes with significant penalties and an increased sentence.

Witness Tampering/Harassment in Florida

Witness tampering and/or harassment is a crime penalized by Florida law. The law requires that a person uses:

• intimidation,
• some threat or act of physical force, or
• offers some sort of monetary or financial benefit or gain,

with the intent that these actions will cause the witness to:

• be absent at a legal proceeding where he or she was supposed to give evidence;
• alter or completely recant past testimonial statements against the defendant;
• withhold his/her testimony regarding the case against the defendant;
• lie partially or completely in his/her testimony against the defendant; and/or
• mutilate, alter, destroy, or hide evidence that could be used against the defendant.

The Debate and Controversy Behind Hearsay Exceptions

There is significant debate in the criminal justice arena regarding witness intimidation and tampering. The debate stems from the fact that under the federal rules of evidence and case law, defendants have a right to confront their accusers. This means that to the extent possible, generally only statements made by witnesses during proceedings should be admitted into evidence because criminal defense attorneys are provided the opportunity to cross-examine the witness in open court. Any other statements made out of court that are used to assert the truth of the matter, however, are not admissible because they are found to be hearsay.

The Hearsay Exception when the Witness is Unavailable

There are exceptions to the hearsay rule; the one exception that has brought so much debate and attention involve statements made by witnesses who are no longer available. According to Florida law, if a witness is no longer available to testify against the defendant and was made unavailable as a result of the tactics of the defendant or was the intended result of the defendant, then his or her testimony may still be brought in against the defendant. If the witness had not been formally interviewed, it is possible that his or her statements to the police, even though not formal testimony, could be brought in as admissible, especially if there are no other formal statements that the witness made before disappearing. However, this is in direct conflict with the right to confront rule, which states that a defendant should have a meaningful opportunity to cross-examine his/her accuser.

The Unbalanced Interpretation of Witness Tampering Nationwide

The debate lies in the fact that many states are unbalanced in their interpretation of what qualifies as witness tampering. Florida has a rather strict interpretation, which requires that bribery or some sort of threat of violence or physical force must be included in the mix before the action rises to the level of crime. Other states only require that there is some sort of influence against the witness. This could have many different meanings and potentially even the slightest of interaction between the witness and someone who is on the defendant’s side could be found to be tampering under the law.

Experienced Criminal Defense Attorney in Fort Lauderdale

It is important to speak with an experienced criminal defense attorney like Kevin J. Kulik if you or a loved one has been arrested for a crime. Contact Kevin J. Kulik today for a free and confidential consultation in the Fort Lauderdale area.