PREVENTING OR DISSUADING SOMEONE FROM TESTIFYING OR PRODUCING EVIDENCE
There are many different ways that you might be able to prevent someone from testifying or producing evidence. No matter, how it is done, though, preventing someone from testifying or producing evidence is a crime and can carry with it steep penalties.
What is the definition of “preventing or dissuading someone from testifying or producing evidence”?
N.R.S. 199.230 states:
A person who, by persuasion, force, threat, intimidation, deception or otherwise, and with the intent to obstruct the course of justice, prevents or attempts to prevent another person from appearing before any court, or person authorized to subpoena witnesses, as a witness in any action, investigation or other official proceeding, or causes or induces another person to be absent from such a proceeding or evade the process which requires the person to appear as a witness to testify or produce a record, document or other object, shall be punished:
- Where physical force or the immediate threat of physical force is used, for a category D felony as provided in NRS 193.130.
- Where no physical force or immediate threat of physical force is used, for a gross misdemeanor.
There are, then, three parts to the crime:
- By persuasion, force, threat, intimidation, deception or otherwise;
- If by force, or by imminent threat of physical force;
- Or where no force or imminent threat of force is used;
- Intent to prevent another person;
- From appearing before any court, or producing a record, document or other object.
As with so many other statutes, NRS 199.230 is intentionally broad. Each of the pieces is intended to give prosecutors the ability to decide, on a case-by-case basis, whether they want to charge you with the crime.
Persuasion, as it is used in this statute refers to any means of convincing the other person. However, there are two distinct types of persuasion: that done by force (or immediate treat of force), and that done without any force or threat of force.
What does it mean by “force or immediate threat of force”?
Physical force is a pretty obvious concept. In the context of this statute, it could mean physically restraining someone, hurting them, or confining them so that they cannot testify, appear, or offer evidence.
The immediate threat of force, however, is a little more difficult. Obviously, if you were to tell someone you would hurt them if the testify, appear or offer evidence, that would be a threat of force. But sometimes the threat is harder to identify. In general, the best way to tell if your conduct would be considered a “threat of force” is to ask if the average person would consider it to be threatening. Remember, if you have been charged with preventing someone from testifying, appearing, or offering evidence on the basis of a perceived threat of physical force, then the prosecutor will have the burden of proving to the jury, a group of 12 average people, that your conduct was threatening.
The term “immediate” is also a vague term in the context of this statute. “Immediate” does not carry its usual meaning of “instantaneous” or “without a lapse of time”. In this context, it refers more to the fact that at the time of the threat, you are immediately in fear of the consequences of the threat. In other words, if you approach someone and tell them that you will hurt them if the testify, appear, or offer evidence, it is only necessary that the person feels threatened in that moment. This is what NRS 199.230 refers to as “intimidation” and carries with it the same penalties as actual physical force or violence.
Putting that all together, this means that if you physically restrain, confine, or injure someone, or if that person reasonably believes that you will physically restrain, confine, or injure them, then you have satisfied the element for physical force, or immediate threat of physical force.
On the other hand, if you persuade someone using no physical force, then you will not have satisfied the physical force element, and you can only be found guilty of either persuading them or deceiving them into not testifying, appearing, or offering evidence.
Essentially, if you do anything to convince, bully, coax, encourage, induce, or coerce someone into not testifying, appearing or offering evidence, then you may have satisfied this element of NRS 199.230.
Why do I have to “intend to prevent” someone from testifying, appearing, or offering evidence?
Because of the steep penalties attached to this crime it is important that the prosecutor show that you actually intended to persuade the other person from testifying, appearing, or offering evidence. To convict someone for a crime that they did not know they were committing would seem contrary to the concept of “justice.” Moreover, there are very limited situations in which you might actually convince someone to not testify, appear, or offer evidence without knowing that is what you were doing.
If the prosecutor can show that you knew your conduct might persuade the other person to not testify, appear, or offer evidence, then they will have established the required intent.
What does the third part refer to?
We’ve already discussed what the statute contemplates by the terms “persuade,” “intimidate,” and “threaten.” And we’ve also discussed the intent aspect of NRS 199.230. The final aspect is what you can’t convince someone else to do.
According to NRS 199.230, you have to intend to prevent them from “appearing before any court, or person authorized to subpoena witnesses, as a witness in any action, investigation or other official proceeding, or causes or induces another person to be absent from such a proceeding or evade the process which requires the person to appear as a witness to testify or produce a record, document or other object.”
In other words, the other person had to initially intend to appear for a legal proceeding (or to offer evidence for a legal proceeding). This means any legal proceeding, from a police investigation, to a grand jury indictment, to a trial. If that person was planning on testifying, appearing, or offering evidence in a legal proceeding, and you do something to intentionally prevent that from happening, then you may be charged with preventing or dissuading someone from testifying or producing evidence.
What does it mean when we put it all together?
Essentially, it means that your actions or conduct cannot cause someone to not testify, appear, evade, or offer evidence that they had intended to offer. The purpose is to try to promote justice and speedy trials. By prosecuting people who intentionally slow down the processes of justice, prosecutors hope to promote those goals.
What are the possible penalties?
The possible penalties depend entirely on the methods you use to convince the person not to offer the testimony or evidence.
If you use physical force or the imminent threat of force, then you will be facing a category D felony which carries with it:
- Between 1 and 4 years in a Nevada State Prison; and
- The possibility of fines up to $5,000.00
On the other hand, if you did not use force or the threat of force, then you will be facing Gross Misdemeanor charges which carry:
- Up to 364 days in a county jail; and/or
- Up to $2,000.00 in fines.
Are there any defenses I can raise?
Of course. There are always defenses that can be raised. The particular defenses will depend on the specific facts of your case. The most common defenses are:
- No Intent – As noted above, you had to intend to convince the other person to not testify, appear, or offer evidence that they had intended to provide. Also remember that in order to convict you of a crime, the prosecutor must prove every element of the crime, beyond a reasonable doubt.
Please Note: It is not a defense to claim that the other person would not have testified regardless of your conduct. Since you can be convicted of preventing or dissuading someone from testifying or producing evidence simply for attempting to do so, whether the other person does testify, appear, or offer evidence is immaterial.
- No Conduct – If you did not do or say anything to convince the person not to testify, appear, or offer evidence, then the charges should be dropped or dismissed. Sometimes, people change their minds. If the other person changed their mind and it was not the result of any conduct by you, then the charges should be dropped or dismissed.
Please Note: In order to be guilty of preventing or dissuading someone from testifying or producing evidence, the other person does not actually have to change their mind about their testimony, appearance or offer of evidence. If you are attempting to prevent or dissuade someone from testifying or producing evidence, then you can be found guilty regardless of whether you are successful.
Also Note: The result of the underlying case has no bearing on charges of preventing or dissuading someone from testifying or producing evidence.
What should i do if I’ve been charged with preventing or dissuading someone from testifying or producing evidence?
If you’ve been charged with a crime, you should speak with an experienced criminal defense attorney as soon as possible to discuss the facts of your case and any possible defenses.