I am an avid watcher of television legal dramas—although I can’t say whether that is because of or in spite of my profession. Even so, it is easy for me to pick up on the unrealistic portions of those shows: the ease of gathering evidence, the speed with which perpetrators are caught, the overall swiftness of the trial—the entire process usually being completed within 45 minutes. I also tend to pick up on some of the more realistic, practical aspects of the shows: the differing types of offenses, the potential constitutional issues that may arise, and the corollary offenses that attach during the process.
One of the most common and possibly most overlooked corollary offenses is witness intimidation. The perpetrators almost always engage in some sort of interference but are rarely charged in the shows. That may be because there is already so much content to fit within a 45-minute time frame. But in real-world practice, it could also be because witness intimidation is not always as straightforward as one might think. This post analyzes North Carolina’s witness intimidation law as proscribed by G.S. 14-226, as well as other issues and nuances that may arise in this context.
G.S. 14-226(a) provides:
If any person shall by threats, menaces or in any other manner intimidate or attempt to intimidate any person who is summoned or acting as a witness in any of the courts of this State, or prevent or deter, or attempt to prevent or deter any person summoned or acting as such witness from attendance upon such court, the person shall be guilty of a Class G felony.
Subsection (b) of this statute provides that “a defendant in a criminal proceeding who threatens a witness in the defendant’s case with the assertion or denial of parental rights shall be in violation of this section.”
Methods of intimidation
As one might expect, the statute clearly covers “threats” and “menacing” toward a witness. These acts can involve curses, vulgarity, or threats of physical or bodily harm intended to prevent or deter a person from being a witness. The phrase “in any other manner” allows other, less common (and non-physical) acts to be covered under the statute. For example, a defendant may be convicted of witness intimidation where he tells a witness that he will have the witness deported if the witness testifies against him. See State v. Clagon, 279 N.C. App. 425 (2021).
In addition to intimidation, prevention, or deterrence of witnesses, the statute also covers attempts to intimidate, prevent, or deter witnesses from showing up to court. Our courts have held that it is immaterial that a witness was not aware of the threats. In State v. Barnett, 245 N.C. App. 101 (2016), the defendant was convicted of intimidating a witness where he wrote a letter to the witness indicating that he would “order a hit” on her. Although the witness never received the letter, the Court of Appeals upheld the conviction, noting that the crime of deterring a witness may be shown by actual or attempted intimidation. Even if a witness is aware of the threats, menaces, or other actions, the statute does not require that the person actually be intimidated, deterred, or prevented from acting as a witness.
Intimidation vs. persuasion
Our courts have also drawn a distinction between threats and mere persuasion or pleading. In State v. Williams, 186 N.C. App. 233 (2007), the defendant wrote a letter to a victim of crimes allegedly committed by a fellow inmate, in which the defendant described the punishment the inmate was facing, pleaded with the victim to reconsider her story, and included a handwritten affidavit for the victim to take to a lawyer and retract her previous statement. The defendant was subsequently charged with attempted intimidation of a witness by menaces and coercive statements. The Court of Appeals reversed the conviction, concluding that the defendant’s letter did not hint at bodily harm or violence against the victim, did not contain cursing, vulgarity, or threatening language, and maintained a courteous tone throughout.
In State v. Braxton, 183 N.C. App. 36 (2007), the defendant was convicted of 11 counts of witness intimidation by means of threats. The jury heard evidence of a vulgar, angry voicemail message left for the witness, with abusive language and threats of bodily harm. The jury also heard additional evidence of other calls in which the defendant encouraged the victim to dismiss the charges against him, not show up to court, and convince the District Attorney that she made everything up. Aside from the voicemail, none of these calls involved any threats. On appeal, the Court of Appeals held that the voicemail was the only incident from which the jury could have found that the defendant committed the offense of intimidating a witness. The court thus reversed 10 of the 11 convictions.
In both of these cases, the defendants were charged with intimidation by specific means. When a defendant is charged with intimidating a witness by means of threats, the State must prove that the defendant intimidated the witness by means of threats, not by way of menaces or in any other manner. Braxton, 183 N.C. App. at 43. Likewise, when a defendant is charged with intimidating a witness by menaces and coercive statements, the State must prove the menaces and coercive statements. Williams, 186 N.C. App. at 238. Neither of these cases involves a defendant that was charged with intimidation by “any other manner”—meaning by words or actions other than threats or menaces. Although the issue of “other means” is not discussed as a charge in any existing case law, it is possible that some of the conduct could have resulted in a conviction if charged properly. For example, the multiple calls made to the victim in Braxton could have possibly been charged as intimidation (or attempted intimidation) by harassment. Such a charge could be especially important in domestic violence cases where the defendant may call frequently or have the victim followed.
Witnesses and prospective witnesses
At the most basic level, a witness is a person who saw or heard the charged crime take place or may have important information about the crime or the defendant. Witnesses can act voluntarily or be summoned by subpoena. It is usually easy to determine who may be a witness to a case.
Our courts have also recognized that those who may act as prospective witnesses are considered witnesses under G.S. 14-226. The Court of Appeals has held that it is unnecessary to demonstrate that a person will definitely testify in an upcoming matter to qualify as a witness under the statute. State v. Shannon, 230 N.C. App. 583 (2013). It is not a defense that the witness was not summoned or legally bound to present as a witness.
In State v. Neely, 4 N.C. App. 475 (1969), a witness testified against the defendant during the defendant’s initial trial. After the defendant was convicted in that court and had appealed to the superior court for a trial de novo, the defendant threatened the witness. The defendant was subsequently convicted of intimidating a witness. On appeal, the defendant argued that his conviction should have been dismissed because, when the threat was made, the witness had already completed his testimony in the first trial and was not under a subpoena to testify in the superior court trial. The Court of Appeals rejected the defendant’s argument, noting that the witness “was in the position of being a prospective witness” because, at the time of the threat, the defendant had already appealed for a trial de novo and the defendant was trying to prevent the witness from testifying in the superior court trial.
A person who has not testified can also be considered a witness. In State v. Shannon, the defendant was convicted of intimidating a witness for his menacing actions toward a therapist that was assigned to him in another case. On appeal, the defendant argued that the State failed to prove that the therapist was acting as a witness because she had not been subpoenaed to testify in any hearing regarding the defendant and there was no evidence presented that the therapist was actually going to be a witness against the defendant. The therapist testified that she had been called as a witness at least three or four times during her four years treating clients as a therapist. She further testified that every time she wrote a letter regarding a client, she was opening herself up to testifying in court. The Court of Appeals held that taking this testimony in the light most favorable to the State, there was substantial evidence that the therapist was a prospective witness against defendant in his other case.
G.S. 14-226 includes intimidation of any person who is “summoned or acting as a witness in any of the courts of this State,” but does not specify when a person becomes a witness. Our appellate courts have not considered whether intimidation that occurs after a person makes a statement to law enforcement but before a suspect is formally charged violates G.S. 14-226. Other jurisdictions have reached differing conclusions about this issue under their governing statutes.
Idaho Code § 18-2604(3) criminalizes intimidating a witness in a criminal proceeding. The statute provides:
Any person who, by direct or indirect force, or by any threats to person or property, or by any manner willfully intimidates, influences, impedes, deters, threatens, harasses, obstructs or prevents, a witness, including a child witness, or any person who may be called as a witness or any person he believes may be called as a witness in any criminal proceeding or juvenile evidentiary hearing from testifying freely, fully and truthfully in that criminal proceeding or juvenile evidentiary hearing is guilty of a felony.
In State v. West, 167 Idaho 440 (Ct. App. 2020), Idaho’s court of appeals noted that the phrase “any criminal proceeding” is not accompanied with any temporal language to indicate the State must have initiated the criminal proceedings at the time of the intimidation. The court determined that the phrase “any criminal proceeding” is read broadly and encompasses actions the State has already commenced and those it may commence in the future. The court thus held that a criminal proceeding did not have to be active at the time of the intimidation: “if a defendant believes a witness may testify in the future at a criminal proceeding he believes may ensue and intimidates that witness in violation of this statute, his guilt does not turn on whether a criminal proceeding has already been formally initiated.” Id.
Massachusetts courts have taken a similar approach, holding that the plain language of the witness intimidation statute does not support the interpretation that the statute does not apply when there is no ongoing criminal investigation at the time of the intimidation. Commonwealth v. Belle Isle, 44 Mass. App. Ct. 226 (1998). The courts there have noted that the language of the witness intimidation statute has two distinct branches, separated by the word “or.” Consequently, the statute may be applied either to witnesses and jurors in ongoing criminal proceedings or to any person furnishing information to a criminal investigator relating to a crime. The Massachusetts courts have observed that a “criminal proceeding”—within the meaning of the applicable statute—commences with the investigation of a possible criminal violation, not an actual crime. Commonwealth v. Fragata, 480 Mass. 121 (2018).
Washington courts have construed their witness intimidation statute as requiring that either an official proceeding or a criminal investigation actually be pending at the time the threat was made. State v. Wiley, 57 Wash. App. 533 (1990).
Contrary to these jurisdictions, the Ohio courts have held that witness intimidation did not exist where a threat was made after police began investigating the underlying crime but before any charges had been filed, because no “action or proceeding” existed at the time of the threat and thus the victim of the threat was not a witness under the applicable statute. State v. Davis, 132 Ohio St. 3d 25 (2012).
Were North Carolina’s appellate courts to weigh in on this issue, they might interpret G.S. 14-226 to apply only when there are ongoing criminal proceedings, due to the language “in any of the courts of this State.” On the other hand, because our courts recognize prospective witnesses, the statute could be interpreted as applying to any potential proceeding at which a witness may testify or furnish information, regardless of whether or not charges have been filed. Given the other specific issues in this context that our appellate courts have addressed, it is possible that this issue might be on the horizon. If you have any questions about this offense or related issues, please feel free to email me at email@example.com.