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Can a Witness Who Fails To Out a Murder Defendant Be Charged With a Crime?

By Laura Hodes
Posted Friday, May 24, 2002, at 9:58 PM ET

This week, prosecutors in Chicago, Connecticut, and Alabama tried or charged defendants who committed their alleged crimes years, or sometime decades, earlier. Many of the witnesses in these cases never told police or prosecutors what they knew before now. Can these witnesses be charged with obstructing justice or withholding evidence?

No. To be prosecuted for obstruction of justice or withholding evidence, someone with knowledge of a crime must lie to a police officer, either by fabricating or withholding information. In the Connecticut and Alabama cases, the witnesses were not questioned by police at the time of the murders and thus had no opportunity to lie.

In the Chicago case, one of the witnesses did lie to police: She backed up the alibi of one of the alleged killers when questioned nine years before. But since Illinois' statute of limitations for obstruction of justice is three years from the date of the offense, she can't be charged, either.

In Illinois and most other states, it's not a crime to fail to report what you know about a crime; the law doesn't compel you to come forward and report a murder. Similarly, state statutes also require an affirmative act to label someone an accessory after the fact. You can't be called an accessory just for keeping silent.

Finally, in all three cases, the prosecution relied heavily on these witnesses' testimony. So, even if the witnesses could be charged, it wouldn't make strategic sense for prosecutors to threaten them with punishment. Not if they want to nail the defendants.

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Laura Hodes is a lawyer and has written on legal issues for the New Republic Online and Findlaw.
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Reader Comments From The Fray:


The answer…was incomplete. Under federal law, "concealing" a crime and not reporting it to a judge or other civil authority is, itself, a crime. Under title 18 of the U.S. Code, "[w]hoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both."

This is a federal statute, applying to federal crimes. Many states have similar statutes, applying to state crimes. In order to determine whether one can be prosecuted for not reporting a crime, one must measure his actions against this statute as well, in addition to the obstruction of justice statute mentioned in the article

--Michael Donner

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I disagree with the last paragraph:

"Finally, in all three cases, the prosecution relied heavily on these witnesses' testimony. So, even if the witnesses could be charged, it wouldn't make strategic sense for prosecutors to threaten them with punishment. Not if they want to nail the defendants."

From what I've heard, prosecutors rarely have a problem with this tactic. It's a useful method for making somebody testify. Now, in the cases mentioned, it may not have been possible. But it is a commonly used strategy.


--Barry

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