"Ethics" or "Witness Tampering"? (Part 3)

Part 1 posited four theses about medical society rules governing expert testimony and selected a test case. Part 2 sketched the directions that the argument in support of the four theses will take. Part 3 will begin to address some legal basics about witness tampering.

18 U.S.C. § 1512

The federal criminal statute governing witness tampering is 18 U.S.C. § 1512. It does not apply to proceedings in state court, where most expert evidence implicated by medical society rules on expert testimony would be offered. State law governs witness tampering in state proceedings, and it may differ in points of detail from the federal regime, and from jurisdiction to jurisdiction. We are mainly concerned, however, with the general policies animating both state and federal legislation in this category, and with the means typically employed to promote those policies. Section 1512 will therefore serve as a suitable exemplar.

Relevant provisions from section 1512 include subsections (b) through (f).

Subsection (b)

Pertinent language from subsection (b) includes the following:

(b) Whoever knowingly uses intimidation, threatens or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to –

(1) influence, delay or prevent the testimony of any person in an official proceeding; [or]

(2) cause or induce any person to –

(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding; . . .

shall be fined under this title or imprisoned not more than ten years, or both.

Certain of the terms used in subsection (b) are defined in 18 U.S.C. § 1515. The term “official proceeding” includes civil litigation in federal court. The term “corruptly persuades” does not include “conduct which would be misleading conduct but for a lack of a state of mind.”

The AAEM rules on expert testimony are manifestly implicated by this provision, inasmuch as the rules exist entirely for the purpose of “influencing” testimony in civil proceedings (or preventing it altogether, at least in the case of witnesses not meeting the rules’ criteria on qualifications). Whether the AAEM rules also satisfy the statute’s criteria for “intimidation,” “threat[s],” “corrupt[] persua[sion],” or “misleading conduct” will be addressed later – as will the question whether measures taken in abstract contemplation of future, unidentified cases should count as involving any “official proceeding” for purposes of triggering the statute.

Subsection (c)

Subsection (c) provides:

(c) Whoever corruptly –

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

For present purposes, the distinction between subsections (b) and (c) would seem subtle. Almost by definition, one who has influenced testimony in a proceeding by intimidating, threatening, or corruptly persuading a witness (as subsection (b) already proscribes) has also “corruptly” obstructed, influenced, or impeded the proceeding itself (as subsection (c) forbids). Subsection (c)(2), however, also sweeps in conduct that corruptly obstructs, influences, or impedes a proceeding, even if that conduct would not count as intimidating, threatening, or corruptly persuading a witness.

Subsection (d)

Pertinent portions of subsection (d) provide:

(d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from –

(1) attending or testifying in an official proceeding; . . .

or attempts to do so, shall be fined under this title or imprisoned not more than one year, or both.

This sweeps “harassment” into the arena of prohibited conduct, insofar as the harassment involves an intentional attempt to hinder, dissuade, or prevent a witness from testifying.

Subsection (e)

Subsection (e) provides:

(e) In a prosecution for an offense under this section, it is an affirmative defense, as to which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant's sole intention was to encourage, induce, or cause the other person to testify truthfully.

Subsection (e) makes purity of intent a defense. Mere professions of innocent intent, however, obviously do not confer immunity. Whether the “sole intention” of the actor’s conduct was to promote truthful testimony is a question of fact, and one to which the surrounding circumstances and the actor’s methods may be relevant.

Subsection (f)

Subsection (f) provides:

(f) For the purposes of this section –

(1) an official proceeding need not be pending or about to be instituted at the time of the offense; and

(2) the testimony, or the record, document, or other object need not be admissible in evidence or free of a claim of privilege.

Under subsection (f)(1), it is not a defense that no proceeding was pending or imminent at the time of the offense. From a policy standpoint, this is eminently sensible. It has no less deleterious an effect on the administration of justice, if potential witnesses are threatened or intimidated before judicial proceedings are even in preparation. Indeed, witness tampering at that early stage may exert especially pernicious effects, by successfully preventing the subject matter of potential proceedings from ever coming to light in the first place. The statute’s mens rea requirements may demand that the actor have undertaken his conduct with the potential for official proceedings in view. But that is another matter.

A “harmless tampering” defense might also be imagined, in which the offender seeks exoneration on the theory that the evidence he sought to suppress would not have been admissible in any event. Subsection (f)(2) bars such a defense. Thus if a criminal defendant threatens to break the knees of the prosecution’s polygrapher if the polygrapher testifies, the defendant has violated the witness tampering statute even though the trial court may well exclude the polygrapher’s testimony anyway for want of reliability under Daubert.

Arthur Andersen LLP v. United States

Last year, the Supreme Court shed some light on section 1512(b)’s “corruptly persuades” language, and on the sort of nexus required between the offender’s conduct and “official proceedings,” in Arthur Andersen LLP v. United States, 125 S. Ct. 2129 (2005). We will turn to that topic in part 4.