Witness Tampering and Pressuring a Victim Not to Testify in Michigan

In Michigan, pressuring a witness about whether to come to court or what to say can be a felony separate from the original charge. MCL 750.122 prohibits using anything of value, or threats or intimidation, to discourage a person from attending or testifying, to influence testimony, or to encourage a person to avoid legal process, withhold testimony, or testify falsely, and it prohibits willfully interfering with a witness's ability to attend or testify.^[1][2][10] The basic penalty is up to 4 years in prison and a fine of up to $5,000.^[3]

If you are being pressured or threatened about testifying, call 911 in an emergency and tell the prosecutor's office or the police. The National Domestic Violence Hotline answers around the clock at 1-800-799-SAFE (7233), or text START to 88788.^[11] Michigan's statewide VOICES4 hotline takes calls and texts at 855-864-2374.^[12][13]

The subject matters to everyone in a domestic violence case. The United States Supreme Court has observed that this type of crime is "notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial."^[14] This page explains what conduct the statutes cover, the penalty tiers, and what happens inside the trial itself when a witness has been kept away.

What conduct does MCL 750.122 cover?

Subsection	Method	What it covers
(1)	Giving, offering, or promising anything of value	To discourage a person from attending, testifying, or giving information at an official proceeding; to influence testimony; or to encourage a person to avoid legal process, withhold testimony, or testify falsely.[1]
(3)	Threat or intimidation	Discouraging or attempting to discourage a person from attending, testifying, or giving information; influencing or attempting to influence testimony; or encouraging or attempting to encourage a person to avoid legal process, withhold testimony, or testify falsely.[2]
(6)	Any willful interference	Willfully impeding, interfering with, preventing, or obstructing, or attempting to, the ability of a witness to attend, testify, or provide information in or for an official proceeding.[10]
(8)	Retaliation	Retaliating, attempting to retaliate, or threatening to retaliate against a person for having been a witness in an official proceeding.[15]

Several features of the statute widen its reach beyond what people expect:

• No pending case is needed. The section applies whether or not an official proceeding actually takes place or is pending, and whether or not the person has been subpoenaed, if the actor knows or has reason to know the other person could be a witness at any official proceeding.^[4]
• Attempts are written into the text. Subsections (3) and (6) cover attempting to discourage, influence, or interfere.^[2][10]
• "Official proceeding" is broad. It means a proceeding heard before a legislative, judicial, administrative, or other governmental agency or official authorized to hear evidence under oath.^[16]
• It applies to anyone. The statute begins "A person shall not," and is not limited to defendants; a relative or friend who does these things on a defendant's behalf is within its wording.^[2]

What is the penalty?

Situation	Maximum prison	Maximum fine
Violation of the section, where neither row below applies[3]	4 years	$5,000
Violation committed in a criminal case where the maximum term for the underlying charge is more than 10 years, or life or any term of years[3]	10 years	$20,000
Violation involves committing or attempting to commit a crime, or a threat to kill or injure any person or to cause property damage[3]	15 years	$25,000
Retaliating against a person for having been a witness[15]	10 years	$20,000

Each tier is a felony.^[3][15] The court may order a prison term for witness tampering to be served consecutively to a term for any other crime, including one arising from the same transaction, and the section does not bar other charges arising from that transaction.^[17]

The result can be lopsided. A first domestic assault is a misdemeanor with a 93-day maximum.^[18] A violation of MCL 750.122 that involves a threat to kill or injure any person, or to cause property damage, falls in the 15-year tier.^[3]

What is not witness tampering?

The statute has limits, and they matter for people on every side of a case.

• Lawful attorney conduct. The bribery and intimidation subsections do not apply to the lawful conduct of an attorney in the performance of his or her duties, such as advising a client, or to lawful conduct or communications permitted by statute or other lawful privilege.^[19]
• Encouraging truthful testimony. It is an affirmative defense to those subsections, which the defendant has the burden to prove by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and the sole intention was to encourage, induce, or cause the other person to testify or provide evidence truthfully.^[19]
• Lawful use of the courts. "Threaten or intimidate" does not mean a communication regarding otherwise lawful access to courts or other branches of government, such as the otherwise lawful filing of a civil action or police report whose purpose is not to harass the other person.^[16]

A witness's own reluctance is also a different matter from tampering. The subsections above describe acts aimed at another person's attendance or testimony; none of them describes a witness's own wish not to testify, or a witness saying so to the prosecutor.^[1][2][10] What a subpoena requires of a witness is covered in Can a victim refuse to testify?^[20] How to raise concerns about a case through proper channels is covered in If you want the charges dropped.

Related offenses under MCL 750.483a

A second statute covers obstruction that happens before or outside the courtroom.

Conduct	Basic level	Higher tier
Preventing or attempting to prevent, through the unlawful use of physical force, another person from reporting a crime committed or attempted by another person[7]	Misdemeanor, up to 1 year and $1,000	Felony, up to 10 years and $20,000, if the violation involves a crime or a threat to kill, injure, or damage property
Retaliating or attempting to retaliate against a person for reporting or attempting to report a crime[7]	Misdemeanor, up to 1 year and $1,000	Felony, up to 10 years and $20,000, on the same condition
Giving, offering to give, or promising anything of value, or threatening or intimidating any person, to influence a person's statement to a police officer conducting a lawful investigation of a crime[8]	Misdemeanor, up to 1 year and $1,000	Felony, up to 10 years and $20,000, on the same condition
Knowingly and intentionally removing, altering, concealing, destroying, or otherwise tampering with evidence to be offered in a present or future official proceeding[9]	Felony, up to 4 years and $5,000	Felony, up to 10 years and $20,000, if committed in a criminal case where the maximum term is more than 10 years, or life or any term of years

Like the witness tampering statute, this section permits other charges from the same transaction and allows consecutive sentences.^[21] The evidence-tampering provision is the one to keep in mind before deleting texts, photos, or recordings connected to an incident.^[9] Stopping a call for help is addressed by yet another statute; see Taking a phone or stopping a 911 call.

The consequence inside the trial: forfeiture by wrongdoing

It is sometimes assumed that if the complaining witness does not appear, the case ends. That assumption is wrong for two reasons. The prosecutor, not the witness, decides whether the case continues.^[22] And the rules of evidence contain a specific answer to a defendant who causes a witness's absence.

Under Michigan Rule of Evidence 804(b)(6), a statement may be offered against a party that wrongfully caused, or encouraged, the declarant's unavailability as a witness, and did so intending that result.^[5] The Michigan Supreme Court has stated the test in three parts, each to be shown by a preponderance of the evidence:

1. The defendant engaged in or encouraged wrongdoing.^[6]
2. The wrongdoing was intended to procure the declarant's unavailability.^[6]
3. The wrongdoing did procure the unavailability.^[6]

The intent requirement is real. The doctrine applies only when the witness's unavailability results from wrongful conduct designed by the defendant for the purpose of preventing the witness's testimony.^[23] The United States Supreme Court has also said that earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to that inquiry.^[24]

When the test is met, the defendant's constitutional right to confront the witness is treated as waived.^[25] In practice this means a statement the witness gave earlier can be heard by the jury even though the witness is not there to be cross-examined. The broader rules are in Hearsay and the Confrontation Clause and When the victim does not come to court.

Bond, jail, and contact with the witness

A defendant in a domestic violence case may be released on a condition of no contact with the complaining witness. A judge may impose conditions reasonably necessary to protect one or more named persons, and the defendant is told on the record that a violation means arrest without a warrant and possible forfeiture or revocation of bail.^[26]

• A bond condition is a court order, and violating it can be punished as criminal contempt.^[27]
• The court may make a no-contact condition effective immediately and while the defendant remains in custody, so the condition can apply before release.^[28]
• Threatening a complaining witness in a criminal case may itself be punished as contempt of court.^[29]
• On any credible evidence of acts or threats of physical violence or intimidation by the defendant, or at the defendant's direction, against the victim or the victim's immediate family, the prosecutor may move to revoke bond.^[30]
• If repeated contacts amount to stalking and at least one violates a release condition, the conduct is aggravated stalking.^[31]

These consequences are in addition to any charge under MCL 750.122, which does not bar other proceedings arising from the same events.^[17] See Violating a no-contact order and When the protected person wants contact.

This guide found no primary source stating a statewide rule on the recording of calls from jail, so it makes no statement about that. Practices differ by facility.

What people get wrong

• "It is only tampering if there was a threat." Offering anything of value, and willfully interfering with a witness's ability to attend, are covered too.^[1][10]
• "There is no case yet, so it does not count." The statute applies whether or not a proceeding is pending.^[4]
• "If the witness stays away, the case is over." The prosecutor decides whether to proceed, and a defendant who wrongfully procured the absence can face the witness's earlier statements at trial.^[22][6]
• "The witness can end the case by refusing to cooperate." The Court of Appeals reversed a trial court that dismissed domestic assault charges because the complainant refused to testify.^[22] See Recanting: when the accuser changes the story.