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This isn't a situation I'm in, but rather something I'm curious about.

If a private person (outside of any position of authority) is bribed to keep an illegal act they witnessed secret, but chooses to report the crime to the police regardless, is that person able to keep the bribe?

I know the contract is compromised by the criminal element, but does that negate the criminal portion of the agreement (letting the witness keep the bribe), negate the entire contract (requiring the bribe be returned to the criminal) or cause another outcome (bribe is surrendered to the state)?

Likewise, if the criminal informs police that they bribed the witness in exchange for silence, even though the witness reported the crime anyway and cooperated fully, is the witness thereby guilty of any crimes themselves?

  • It may not be illegal to accept money from a criminal and then break the terms of the agreement with the criminal, but it probably isn't smart. – S. G. Jun 3 '16 at 16:19
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Bribery always involves a public official or person with a legal duty (such as a witness in a legal proceeding). It is illegal for such a person to accept a bribe. See 18 USC 201. We speak metaphorically about "bribing" when we aren't actually talking about the same thing as the legal concept.

Seen as a contractual matter outside the legal concept of bribery, a contract requiring a person to cover up a violation of the law would be unenforceable. However, it would be the crime of extortion to threaten to expose the criminal, so to rule that out, we would have to assume that the criminal knew that Jones could rat him out, and he offers Jones money to keep quiet. If the agreement were to "not testify", then that would be bribery.

In other words, we have an almost perfectly innocent person, who acted entirely legally (did not extort, is not a public official, did not accept money in connection with testifying in court), and accepted money given for an unenforceable purpose which was breached. Their only fault was accepting payment to not turn a criminal in (and even then, they did turn him in). I can't find relevant US case law that definitely rules one way or the other. I believe though that the court would not order the money returned to the criminal – the court would do nothing to validate such a contract.

  • 3
    Interesting fact: for members of Congress, the fact that 201 doesn't care whether or not they followed through on the bribe is required for it to be constitutional. The Constitution forbids the courts from looking into the motives for a legislator's legislative acts; their own house of Congress can do that, as can their constituents, but the courts can't. So the anti-bribery statute for Congress has to be written in such a way that you could get a conviction without introducing any evidence of any legislative acts. – cpast Jun 2 '16 at 23:09
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    This answer is good, although it only applies if the money the person is using to bribe you with is legitimately theirs. If they are bribing you to not turn them in for bank robbery (using the proceeds of their crime to bribe you), you would likely be found guilty of receiving stolen goods. – Scott Jun 2 '16 at 23:36
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    Wouldn't not ordering the money returned validate the contract? If the contract has no force whatsoever, then why isn't the criminal entitled to the money back? – David Schwartz Jun 3 '16 at 9:58
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    Interesting international fact: In Germany, accepting a bribe as a witness is not a criminal offence (though giving false testimony is). – sleske Jun 3 '16 at 9:59
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    @DavidSchwartz If the contract had no force, the money the criminal gave to the witness was, essentially, a gift. Ordering the witness to return that money would be validating the contract because it would be saying that the terms of the contract hold. – David Richerby Jun 3 '16 at 14:32
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Putting aside if the paying/receiving of bribes is an offence against the state (because it is circumstantial); let's just assume that it is.

A contract for an illegal purpose (like bribery as assumed) is void. That is, it is not a contract and the courts have no jurisdiction to intervene and make orders about it. So, the money stays where it is: if it has not been paid then the person to whom it was promised cannot claim it, if it has been paid the person who paid it cannot get it back.

In practice, the money could probably be seized by the state under "proceeds or crime" type legislation.

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    Yeah, I have a sneaking suspicion that (at least in the United States) if such money could be found in "innocent hands" some law enforcement agency would seize it via "civil forfeiture." – feetwet Jun 3 '16 at 0:13
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If one received a bribe, reported the same, and turned over the proceeds to the appropriate law enforcement agency, one might be able to recover a portion of the money under a whistleblower statute.

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    Can you show any examples of such a statute that would apply to a bribe? – feetwet Jun 3 '16 at 0:14
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You described the crime of extortion. Not bribery.

I failed to keep my promise to the victim is not an affirmative defense to the crime of extortion. The extorter is still guilty.

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    For this to be extortion, a threat must have been made. There was no mention of that in the original post. – Stig Hemmer Jun 3 '16 at 10:37
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There is no lawful way to take a bribe. Hence the word 'bribe'. Even if you're not in an authoritative positive, getting caught taking a bribe will lead to aiding and abetting if the briber gets caught.

Lets use the example of a car accident: Guy1 runs over Guy2 because he's intoxicated behind the wheel. You see this from across the street. Guy 1 comes up to you, hands you everything in his wallet, says "you didnt see anything" and runs. Now there's two ways this can go with taking the bribe:

A. You take the bribe and keep the money. Eventually cops knock on your door because they got you on camera and the locals know you frequent that street. You tell them you took money to be silenced and BAM you're slapped with Aiding and abetting.

B. You agree to the bribe but as soon as he runs you call the cops, they grab him eventually but during the interrogation process he informs them that he gave you money and BAM you're slapped with aiding and abetting.

So which do you choose? Turn to pg 236 for option A. Turn to pg 34 for option B.

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    With B, you've not done anything illegal in any jurisdiction I'm aware of - you've not aided and abetted a criminal, you've simply said "Okay" when they said "You didn't see anything" and handed you some cash. If you report them immediately, all you've done is had a conversation and been given some money – Jon Story Jun 3 '16 at 13:20
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    "There is no lawful way to take a bribe. Hence the word 'bribe'." I'm sorry but that makes no sense at all. It has exactly the same logical structure as "There is no lawful way to take a payment. Hence the word 'payment'." But the conclusion that there is no lawful way to take a payment is patently false. – David Richerby Jun 3 '16 at 14:34
  • I don't really agree with the B outcome. It is more likely that police will take the money as evidence and charge Guy1 with witness tampering (maybe only attempted). – Gabriel Diego Sep 23 '16 at 23:41

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