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People v. Yascavage11/30/2004
Colorado's statute is derived focus "on the defendant's subjective intent to subvert the administration of justice by improperly inducing a person to refrain from cooperating with the authorities," slip op. at 7, with the drafters of the MPC expressly noting their intention "to eliminate quibbling invited by laws requiring that a proceeding or investigation actually be pending." Slip op. at 10. Following their lead, the Colorado legislature has criminalized attempts by anyone to induce a "witness or victim or a person he believes is to be called to testify as a witness or victim in any official proceeding or who may be called to testify as a witness to or victim of any crime" to either do or refrain from doing any of a number of specific things that would effectively deprive the legal system of that person's truthful testimony. § 18-8-707(1), C.R.S. (2004).
Without acknowledging that another construction might be possible, the majority announces that "subsection (1)(b) invokes protection only for a witness or victim who has been 'legally summoned.'" Slip op. at 11. However, by including, among the things a defendant is precluded from doing, any attempt to induce a person to " bsent himself from a proceeding to which he has been legally summoned," the statute defines the proscribed conduct itself rather than narrowing the class of persons entitled to protection. As the immediately preceding language of the same sentence makes clear, the induced person need not actually be a victim or witness at all, nor need there even be a pending official proceeding. It is enough that the defendant attempt to induce a person "he believes is to be called to testify as a witness or victim in any official proceeding or who may be called to testify as a witness to or victim of any crime." § 18-8-707.
In this context, the phrase, "has been legally summoned," does not create a condition that must be satisfied before the defendant attempts to influence the other person; it refers instead to the defendant's intent and describes what he is barred from trying to do. Factual or legal impossibility is no defense to an attempt, as long as the offense could have been committed had the attendant circumstances been as the actor believed them to be. § 18-2-101, C.R.S. (2004). Read in its entirety, section 18-8-707 proscribes attempts to induce any person the defendant "believes" will be called to testify, or "may" be so called, to absent himself in the face of a legal obligation to do otherwise. Whether that person has actually been or is ever summoned is inconsequential to the defendant's subjective intent or the sufficiency of his attempt.
Were the first half of the witness tampering statute so easily ignored, and the proscribed acts limited to those attempts that are factually and legally capable of achieving their goal, consistency would seem to require a similarly restrictive reading of subsections (a) and (c) of the same provision. It is unclear to me, in line with this approach, why inducing a person to "unlawfully withhold any testimony," see § 18-8-707(1)(a), would not be possible only if that person were legally obligated, by an existing order or other legal process, to testify. This, however, is apparently not the case. See People v. Cunefare, 03SC782 (Colo. November 24, 2004). In the same vane, seemingly a person could be induced to " void legal process summoning him to testify," see § 18-8-707(1)(c), only if there existed some legal process to be avoided.
As the full text of the statute and its sources make clear, the construction proposed by the majority thwarts the design of the drafters to protect from outside interference all those who the defendant believes will or may be called to test
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