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Every competent criminal defense attorney will advise their client (or anyone else) NEVER to talk to the police. Law professor James Duane gave a 45-minute lecture on this exact subject. So, obviously if a person with a cop at their door calls up Duane and asks him, "There is a cop at the door and he wants to ask me some questions." Professor Duane would obviously tell the person, "Under no circumstances should you say anything to the police." It would seem unlikely that Duane would be prosecuted for witness tampering.

However, let's imagine that the same person does not call Professor Duane, but calls their brother. Can the brother be charged with witness tampering?

At what point does advising a person not to talk to the police become "witness tampering"?

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At what point does advising a person not to talk to the police become "witness tampering"?

When the brother's advice includes actual or threatened physical force.

Witness tampering is defined by 18 U.S. Code § 1512 to include:

(2) Whoever uses physical force or the threat of physical force against any person, or attempts to do so, with intent to —

...

  • (C) hinder, delay, or prevent the communication to a law enforcement officer...

...

shall be punished as provided [below]

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    There are other offenses there that don't have force as an element. But advising someone to exercise a constitutional right cannot be witness tampering.
    – phoog
    Jul 27 at 23:09
  • @phoog I didn't include the (b) to (d) offences as they don't seem to fit the OP's 'brother scenario'
    – Rock Ape
    Jul 28 at 10:08
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A conviction for witness tampering generally requires something more than simply giving advice.

Under federal law, witness tampering requires the use or threat of force to prevent a witness from cooperating with the police. Pure advice against cooperating cannot be a crime.

Under New York law, a conviction requires that the defendant induces the witness to dodge testifying or engages in some kind of deceit designed to affect the witness's testimony.

The broadest witness-tampering statute I'm aware of is California's, which prohibits both "knowingly and maliciously" dissuading a witness from attending or testifying at a trial, and dissuading a witness from reporting a crime or seeking charges based on that crime. I'm not familiar with how the courts have interpreted this law, but it seems to raise some serious First Amendment problems.

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  • What first amendment problems? If you advise someone that it is in her self interest not to testify, there is no malice, therefore there is no offense.
    – phoog
    Jul 27 at 23:17
  • I'm not sure the malice element does anything to cure the First Amendment problems, but even if it does, it only attaches to liability for dissuading a witness from testifying. The statute includes no such requirement for defendants who merely dissuade a witness from reporting a crime or seeking charges.
    – bdb484
    Jul 28 at 0:34
  • Re California's law: If we interpret "witness" as someone who has been legally compelled to give testimony (by a subpoena ad testificandum or the jurisdiction's equivalent), rather than someone who merely saw something, then you could interpret that California statute as maybe falling within the imminent lawless action exception, or at least trying to do so (because it only criminalizes cases where you persuade a witness to violate their legal obligation to testify).
    – Kevin
    Jul 28 at 21:17
  • If it were limited that way, I think that would help. But I don't know how we can read it that way when it's talking about dissuading the witness from reporting the crime, which would necessarily come well before the subpoena, I'd think.
    – bdb484
    Jul 28 at 22:05
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This question and many related ones are analysed in detail by Eugene Volokh, in a long paper that is worth reading in its entirety if you are interested in the topic.

The [Supreme] Court has offered “speech integral to [illegal] conduct” as one of the “well-defined and narrowly limited classes of speech” excluded from First Amendment protection. But if this exception is indeed to be well defined and narrowly limited, courts need to explain and cabin its scope. This Article — the first, to my knowledge, to consider the exception in depth — aims to help with that task.

On threats, he says:

Companies are generally barred from firing employees for voting for a union, and unions are generally barred from retaliating against employees for their speech. The Court therefore concluded that speech that threatens unlawful retaliation is itself unlawful.

On blackmail, he says:

[...] telling black citizens “stop shopping at white-owned stores or we’ll publicize your behavior to your neighbors and fellow church members” is similarly constitutionally protected. On the other hand, “vote for this civil rights bill or I’ll disclose that you cheated on your wife” is likely unprotected.

In general the line where the First Amendment protections end and criminal speech begins is surprisingly vague. General advice to avoid self-incrimination by not answering questions from the police is clearly protected. Threatening a witness with violence is clearly not. In between are shades of grey.

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