A. Bribery or intimidation of a witness consists of any person knowingly:

(1) giving or offering to give anything of value to any witness or to any person likely to become a witness in any judicial, administrative, legislative or other official cause or proceeding to testify falsely or to abstain from testifying to any fact in such cause or proceeding;

(2) intimidating or threatening any witness or person likely to become a witness in any judicial, administrative, legislative or other official cause or proceeding for the purpose of preventing such individual from testifying to any fact, to abstain from testifying or to testify falsely; or

(3) intimidating or threatening any person or giving or offering to give anything of value to any person with the intent to keep the person from truthfully reporting to a law enforcement officer or any agency of government that is responsible for enforcing criminal laws information relating to the commission or possible commission of a felony offense or a violation of conditions of probation, parole or release pending judicial proceedings.

B. Retaliation against a witness consists of any person knowingly engaging in conduct that causes bodily injury to another person or damage to the tangible property of another person, or threatening to do so, with the intent to retaliate against any person for any information relating to the commission or possible commission of a felony offense or a violation of conditions of probation, parole or release pending judicial proceedings given by a person to a law enforcement officer.

C. Whoever commits bribery or intimidation of a witness is guilty of a third degree felony.

D. Whoever commits retaliation against a witness is guilty of a second degree felony.

History: 1953 Comp., § 40A-24-3, enacted by Laws 1963, ch. 303, § 24-3; 1987, ch. 227, § 1; 1991, ch. 84, § 1; 1997, ch. 208, § 1.

Cross references. — For perjury, see 30-25-1 NMSA 1978.

The 1997 amendment, effective July 1, 1997, substituted "is guilty of a third degree felony" for "or retaliation against a witness is guilty of a fourth degree felony" at the end of Subsection C, and added Subsection D.

The 1991 amendment, effective April 2, 1991, redesignated former Subsections A and C as Paragraphs (1) and (2) of Subsection A and former Subsection D as Subsections B and C; deleted "and maliciously" following "knowingly" in the introductory phrase of Subsection A; deleted former Subsection B which read "who is a witness or is likely to become a witness, receiving or agreeing to receive any bribe or anything of value to testify falsely or to abstain from testifying to any fact in any cause in any judicial, administrative, legislative or other official cause or proceeding"; added Paragraph (3) of Subsection A; substituted "engaging in conduct that causes" for "and maliciously engaging in any conduct and thereby causing" near the beginning of Subsection B; and made related stylistic changes.

The 1987 amendment, effective June 19, 1987, rewrote the catchline, which read "Bribery of witness," substituted "or intimidation of a witness consists of any person knowingly and maliciously" for "of witness consists of any person" in the introductory language, deleted "pending or about to be brought" preceding "to testify" in Subsection A, added "or" at the end of Subsection A, deleted "pending or about to be brought in this state or" at the end of Subsection B and "pending or about to be brought" following "proceeding" in Subsection C, inserted Subsection D and substituted "or intimidation of a witness or retaliation against a witness" for "of witness" in the last undesignated paragraph.

Constitutionality. — The phrase "possible commission of a felony" was not shown to be unconstitutionally vague with respect to the defendant, who held a knife to the victim's throat and committed other violent acts, taunted the victim to call the police, and told her that he would kill her before they arrived. State v. Perea, 1999-NMCA-138, 128 N.M. 263, 992 P.2d 276, cert. denied, 128 N.M. 149, 990 P.2d 823.

Strict construction. — This section is criminal in nature and must be construed strictly. State v. Bell, 1967-NMSC-184, 78 N.M. 317, 431 P.2d 50.

Elements of offense. — In a prosecution for intimidation of a witness, the state is not required to prove that defendant knew that he committed certain acts that under the law amounted to a felony. State v. Perea, 1999-NMCA-138, 128 N.M. 263, 992 P.2d 276, cert. denied, 128 N.M. 149, 990 P.2d 823.

Conviction of crime charged not required. — A defendant may be convicted of bribery or intimidation of witness even if the defendant is acquitted of any crime associated with the actions relating to "the commission or possible commission of a felony." State v. Perea, 1999-NMCA-138, 128 N.M. 263, 992 P.2d 276, cert. denied, 128 N.M. 149, 990 P.2d 823.

Nature of offense. — Liability for retaliation against a witness may be imposed even if the threat is communicated to a person other than the witness, so long as it is reasonable to expect that the person who receives the threat would inform the victim, and liability does not depend on whether defendant intended to carry out his threat. State v. Warsop, 1998-NMCA-033, 124 N.M. 683, 954 P.2d 748, cert. denied, 124 N.M. 589, 953 P.2d 1087.

Juvenile offender. — A juvenile may be convicted of intimidation of a witness even though he may only be found delinquent in the underlying offense. In re Gabriel M., 2002-NMCA-047, 132 N.M. 124, 45 P.3d 64, cert. denied, 132 N.M. 193, 46 P.3d 100.

Cause not pending. — Where alleged acts of bribery of witnesses in a homicide case took place after the death of defendant's wife but long before any final decision was made concerning the holding of an inquest or the filing of a criminal complaint against the defendant no proceeding was pending or about to be brought within the meaning of this section at the time of those alleged acts of bribery. State v. Bell, 1967-NMSC-184, 78 N.M. 317, 431 P.2d 50, superseded by statute, State v. Clements, 2009-NMCA-85, 146 N.M. 745, 215 P.3d 54.

Allegation of knowledge or intent. — In prosecution for intimidating witness, indictment was not defective for failing to charge that accused knowingly committed the act or that he did it with corrupt intent. State v. Lazarovich, 1921-NMSC-071, 27 N.M. 282, 200 P. 422.

Jury instructions. — Giving of instruction that allowed the jury to convict defendant of intimidation of a witness without making the requisite finding that the information related to "the commission or possible commission of a felony" as opposed to a misdemeanor was reversible error. State v. Perea, 1999-NMCA-138, 128 N.M. 263, 992 P.2d 276, cert. denied, 128 N.M. 149, 990 P.2d 823.

Lesser included offenses. — Under the State v. Meadors , 1995-NMSC-073, 121 N.M. 38, 908 P.2d 731, analysis because retaliation against a witness did not subsume the elements of the crime of intimidation of a witness nor was the defendant provided notice, defendant was erroneously convicted of intimidation of a witness as an uncharged lesser included offense of retaliation. State v. McGee, 2002-NMCA-090, 132 N.M. 537, 51 P.3d 1191, cert. denied, 132 N.M. 551, 52 P.3d 411.

Circumstantial evidence. — Because proof of intent is rarely provable by direct evidence, circumstantial evidence must often be relied upon for its proof. Thus, circumstantial evidence, like direct evidence, will support a jury's finding of specific intent. State v. McGee, 2004-NMCA-014, 135 N.M. 73, 84 P.3d 690, cert. denied, 2004-NMCERT-001, 135 N.M. 160, 85 P.3d 802.

Sufficient evidence. — Where a witness had testified at defendant's trial which resulted in defendant's conviction for three charges and when defendant encountered the witness after the trial, defendant said "There's the son of a bitch. I'll kill that mother fucker", the evidence was sufficient to support defendant's conviction for retaliating against a witness. State v. Estrada, 2001-NMCA-034, 130 N.M. 358, 24 P.3d 793, cert. denied, 130 N.M. 459, 26 P.3d 163.

Where defendant had telephone conversations with a murder suspect during which they agreed that defendant would attend the murder suspect's trial because defendant's presence might intimidate a key witness into not testifying against the murder suspect, the evidence was sufficient to support defendant's conviction for conspiracy to intimidate a witness. State v. Martinez, 2008-NMCA-1160, 143 N.M. 428, 176 P.3d 1160, cert. denied, 2008-NMCERT-001, 143 N.M. 397, 176 P.3d 1129.

Where a police officer charged defendant, who was a county commissioner, with DWI and defendant, in defendant's capacity as chairperson of the county commission, wrote the officer a letter stating that defendant had received information indicating that the officer and the officer's spouse were violating the guidelines of a federal food commodities program, there was sufficient evidence to support defendant's conviction for intimidation of a witness. State v. Fernandez, 1994-NMCA-056, 117 N.M. 673, 875 P.2d 1104, cert. denied, 117 N.M. 744, 877 P.2d 44.

Sufficient evidence of intimidation of a witness. — In defendant's trial for criminal sexual contact of a minor and intimidation of a witness, where, in response to the prosecutor's leading questions, the nine-year-old child testified that defendant told the child not to tell anyone what happened, that defendant said that if the child told someone, defendant would take the child far away and leave him there, and that the child was afraid of defendant, there was a factual basis upon which the jury could conclude that defendant threatened the child, and the jury could reasonably infer that defendant intimidated the child with the intent to keep him from reporting the incident to law enforcement. State v. Luna, 2018-NMCA-025, cert. denied.

Insufficient evidence. — Where the witness told police that the witness suspected that defendant had burned down one of defendant's houses and that the witness had observed defendant attempt to set fire to another of defendant's houses; two years later, defendant was convicted of a misdemeanor charge of criminal damage to property; the witness testified at defendant's trial, and two days after the trial, the witness received a threatening letter from defendant, there was insufficient evidence to support defendant's conviction for retaliating against a witness because the letter was sent in retaliation for the witness' misdemeanor trial testimony, not in retaliation for the witness' arson report. Torres v. Lytle, 461 F. 3d 1301 (10th Cir. 2006).

Insufficient evidence of intimidation or threatening of a witness. — Where defendant was charged with criminal sexual penetration of a minor and intimidation or threatening of a witness, and where the state relied on testimony elicited from the victim that defendant's son called her on the telephone after the incident and threatened her, there was insufficient evidence to support defendant's conviction for intimidation or threatening of a witness, because the state did not present any evidence that defendant helped or encouraged his son to intimidate or threaten the victim, nor did it establish that defendant requested his son place the call to the victim or was even aware that his son had called the victim. State v. Garcia, 2019-NMCA-056, cert. denied.

Sufficient evidence of bribery of a witness. — Where defendant was charged with criminal sexual penetration of a minor and bribery of a witness, and where the state relied on testimony elicited from the victim that after the assault, defendant threw her pants at her, instructed her to put them on, and stated, "remember, if you say anything, I'll get you again," there was sufficient evidence to prove beyond a reasonable doubt that defendant intended to keep the victim from truthfully reporting to a law enforcement officer or any agency of governing information relating to the commission of the felony of criminal sexual penetration. State v. Garcia, 2019-NMCA-056, cert. denied.

Evidence sufficient. — Where defendant assaulted defendant's spouse; defendant was aware of and afraid that defendant might go to jail because of the assault; and before the police arrived to investigate the incident, defendant told the spouse that defendant would kill the spouse and the spouse's children if the spouse said anything, there was sufficient evidence to support defendant's conviction for intimidation. State v. Clements, 2009-NMCA-085,146 N.M. 745, 215 P.3d 54, cert. denied, 2009-NMCERT-007, 147 N.M. 362, 223 P.3d 359.

Testimony from witness that the defendant ordered him to "keep his mouth shut" and offered to buy the witness an airline ticket to get out of town was sufficient for a rational jury to find each element of the crime of bribery of a witness beyond a reasonable doubt. State v. Coffin, 1999-NMSC-038, 128 N.M. 192, 991 P.2d 477.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 58 Am. Jur. 2d Obstructing Justice §§ 46, 47, 64 to 66.

Validity, construction, and application of state statutes imposing criminal penalties for influencing, intimidating, or tampering with witness, 8 A.L.R.4th 769.

Admonitions against perjury or threats to prosecute potential defense witness, inducing refusal to testify, as prejudicial error, 88 A.L.R.4th 388.

67 C.J.S. Obstructing Justice §§ 16 to 18.