WPIC 115.81 Tampering with a Witness—Elements
11A WAPRAC WPIC 115.81Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 115.81 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part XIII. Miscellaneous Crimes
WPIC CHAPTER 115. Bribery And Corrupt Influence
WPIC 115.81 Tampering with a Witness—Elements
To convict the defendant of the crime of tampering with a witness, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant attempted to induce a person to [testify falsely] [or] [, without right or privilege to do so,] [withhold any testimony] [or] [absent himself or herself from any official proceeding] [or] [withhold from a law enforcement agency information which he or she had relevant to [a criminal investigation] [or] [the abuse or neglect of a minor child]];
(2) That the other person was [a witness] [or] [a person the defendant had reason to believe was about to be called as a witness in any official proceedings] [or] [a person whom the defendant had reason to believe might have information relevant to [a criminal investigation] [or] [the abuse or neglect of a minor child]]; and
(3) That any of these acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
NOTE ON USE
Use bracketed material as applicable. WPIC 118.16 (Official Proceeding—Definition) may be used if applicable.
For a discussion of the phrase “any of these acts” in element (3), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).
COMMENT
RCW 9A.72.120(1).
When the information charges only tampering with a “witness in any official proceeding,” the instruction should be limited to conduct occurring during a pending proceeding. State v. Sanders, 66 Wn.App. 878, 833 P.2d 452 (1992) (though not constitutional error to include continuing course of conduct extending to period after dismissal).
The witness tampering statute applies to attempts to induce a witness to recant a prior signed statement given to police and thereby to withhold information necessary to a criminal investigation. State v. Lubers, 81 Wn.App. 614, 915 P.2d 1157 (1996). It is not necessary for a threat to actually be communicated to the victim. State v. Williamson, 131 Wn.App. 1, 86 P.3d 1221 (2004).
A defendant's apology to a prospective complaining witness in a rape trial, combined with a statement that “it” was going to ruin his life and a request that she “drop the charges,” was insufficient to constitute an attempt to induce the prospective witness to withhold testimony. State v. Rempel, 114 Wn.2d 77, 785 P.2d 1134 (1990).
Because there is such a “direct, elemental nexus between the act of tampering and the underlying crime,” the child abuse exception to the spousal testimonial and marital communication privileges also applies to witness tampering in a child abuse case. State v. Sanders, 66 Wn.App. 878, 833 P.2d 452 (1992).
In 2011, the Legislature amended the statute to provide that “each instance of an attempt to intimidate a witness constitutes a separate offense,” abrograting State v. Hall, 168 Wn.2d 726, 230 P.3d 1048 (2010). RCW 9A.72.110(5).
[Current as of September 2019.]
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