In criminal cases, witnesses are an essential part of a proceeding as they present evidence before the judge, some of which could be critical facts such as information material to the case. Witnesses are supposed to swear or affirm under oath, meaning they will only tell the truth when they take the stand.

Not to mention the issue of perjury itself, it would be a severe offense to bribe a witness or for a witness to accept a bribe. A bribe may be offered to target different aspects of being a witness. The California Penal Code has codified witness bribery violations into two categories: bribery to influence witness testimony and bribery to influence a witness's appearance in court, as we explain in this blog.

The Meaning of Bribery of a Witness In California

Bribery of a witness means giving or offering to give a witness something valuable with the corrupt intent to influence their testimony or the contents of their communication with prosecutors or law enforcement, and it is a criminal offense under California law.

Specifically, PCs 138 and 137 prohibit a witness from accepting a bribe or someone from trying to bribe a witness to influence their court attendance or testimony. For example, when you make the witness decline to cooperate with the police or prosecution's office or attend court to give their testimony, you can be convicted. It is equally illegal for a witness to take a bribe in return for their noncooperation or refusal to attend court to testify.

Bribing a Witness Regarding Testimony

PC 137(a) addresses bribing a witness regarding court testimony and communication or cooperation with police officers and prosecutors. Under this subsection, it is considered a complete act of bribery when you give or offer a witness or someone about to become a witness something valuable with the corrupt intent to influence their testimony or the content of their communication with prosecutors or law enforcement.

Under PC Section 137(b), it is an offense to use fraud, threats, or force to convince a witness to withhold information or provide false testimony. Examples of actions that constitute bribing a witness under PC 137a and (b) include the following:

  • You witness a friend being involved in a crash, and law enforcement wants you to record a statement. The friend requests that you lie in your statement. After thinking about it, you tell them you will record a false report saying the collision was not their fault if they pay your rent for the following month (PC 137(b)).
  • Offering to pay a witness if they agree to give false exculpatory information to the investigator investigating bribery charges (PC 137(a)).
  • Telling a possible witness that you will ensure they or their family suffers unless they decline to testify (PC 137(b)).
  • Offering sexual favors or money to a law enforcement officer so they write a favorable police report or let you off (PC 137(a)).

PC 137(c) criminalizes knowingly inducing someone else to withhold testimony or provide false testimony associated with a criminal offense, even if you do not offer a bribe. Considering our first example above, the friend may be prosecuted under PC 137(c).

Bribing a Witness Regarding Court Attendance

PC 138(a) addresses bribery to influence witness attendance to testify during a court trial. Unlike PC 137(a), Section 138(a) violations must involve bribing a witness so they refuse to appear in court to testify.

An example is when you offer to give a car or expensive jewelry (something valuable) to the witness if they fail to act on a subpoena to testify at your trial or offer sexual favors or cash to a law enforcement officer so they do not show up in court to testify against you.

Either of these acts will be charged under PC 138(a) and not PC 137(a) because the purpose of the bribe was to influence the witness’ court attendance and not their testimony or the contents of their communications.

PC 138(b) is the b-side of PC 138(a) and PC 137, describing when a witness takes a bribe in exchange for not appearing in court to testify. For example, you are guilty of bribing a witness under PC 138(a) or PC 137 (based on the facts of the case) if you offered a witness a bribe, while the witness who took the bribe is criminally liable under PC 138(b).

Prosecution of Penal Codes 138 and 137

To be found guilty of bribing a witness under PC 137a, the prosecuting attorney must prove the following beyond any reasonable doubt:

  • You promised, offered, or gave cash or something valuable to a witness, somebody about to become a witness, somebody about to provide law enforcement with material information about an offense, or somebody acting on that witness's or someone's behalf.
  • You had the corrupt intention of using the bribe to influence the information or testimony that that witness or person would provide.

To be criminally liable under 138(a) PC, the prosecuting attorney must demonstrate the following facts beyond any reasonable doubt:

  • You promised, offered, or gave cash or something valuable to a witness, somebody about to become a witness, someone about to provide the police with material information about an offense, or somebody acting on the witness's or person's behalf.
  • When you did so, you corruptly intended the bribe to illegally convince the person or witness not to come to court during trial proceedings.

To be found guilty under 138(b) PC, the D.A. must demonstrate the following facts beyond any reasonable doubt:

  • You were a witness in a case or someone about to become a witness.
  • You took or asked to take a bribe.
  • When you did so, you impliedly or expressly showed the bribe would illegally sway your communication or testimony or make you not attend court during trial proceedings.
  • You corruptly intended the bribe to illegally influence your communication or testimony or make you miss court during trial proceedings.

Several key terms must be defined to fully understand bribery laws and how they apply to a given case. The term "bribe" is broadly defined under California statute. Under PC 138 and PC 137, a bribe means an advantage, benefit, or any item of future or present value given or offered to a witness in return for their cooperation in withholding information, declining to testify, or giving false testimony. On the other hand, acting with corrupt intent is when a person acts to unlawfully gain an advantage, monetary or otherwise, for themselves or somebody else. 

Bribery charges go both ways, meaning you could be guilty of offering a witness a bribe, or the witness may be found guilty of accepting a bribe. An actual cash exchange does not need to occur, although cash payments may be considered bribes. Put otherwise, bribery of a witness occurs within the law's definition whenever a witness corruptly modifies their testimony or agrees not to attend court to testify in return for cash or anything valuable.

It is worth remembering that the cash or valuable item does not have to be given or exist at the time of the offer to receive or give a bribe. What counts is that the bribe offer was made, and all involved parties at that time meant for it to somehow illegally influence the testimony or witness.

Witness Bribery vs. Extortion

The definitions of witness bribery and extortion seem similar, but one primary difference is the direction in which cash flows. Under extortion laws, somebody typically threatens another to obtain money from them.

Alternatively, they may employ threats to receive special services. Under the bribery-of-a-witness laws, threats are not necessarily involved. In the context of the "stick and carrot" approach, bribery uses a "carrot" rather than a "stick" to have a person behave in a given way or do something.

With bribery, someone typically pays another person to obtain something they want. They do not necessarily receive money from that individual in return. So, to secure a conviction for extortion, the prosecuting attorney must demonstrate the additional fact of coercion or threats, which is not a requirement under the bribery of a witness law. This is to say that although threats may be involved in bribing a witness, they are not an element the prosecution must prove to obtain a conviction.

Additionally, per bribery-of-a-witness laws, both parties can be convicted as they voluntarily participated in the commission of the offense. But with extortion, one party is compelling the other to act against their will. Considering this difference, you cannot be found guilty of extortion and obtaining a bribe due to the same incident.

What Punishment Do You Face for Bribing a Witness?

Bribing a witness is a serious white-collar crime with severe consequences if found guilty. In California, it is a straight felony offense. The penalties after being convicted under PC 137(a), PC 138(a), or PC 138(b) are four, three, or two years in state prison, felony probation, a fine, and court fees.

Other penalties include the loss of your firearm rights. Also, if you are a non-U.S. citizen, a conviction for this crime could subject you to deportation or inadmissibility. This is because bribing a witness is considered a crime of moral turpitude under California law, and a conviction for these crimes renders an immigrant deportable or inadmissible. Other crimes that can subject an immigrant to inadmissibility or deportation are aggravated felonies.

If the judge sentences you to probation, they may impose conditions like anger management, community service, community labor, and other relevant terms and conditions.

You Can Prevent a Conviction

If accused of bribery of a witness, a skilled criminal defense lawyer can argue various legal defenses on your behalf, which may be successful in helping you avoid a conviction. Common legal defenses to charges of bribing a witness include the following:

No Corrupt Intent

Sometimes, a third person can offer a witness a valuable item, even though the offer is unrelated to any attempt to persuade the witness to skip court or modify their testimony.

Consider an example where a third person offers to pay cab fare for the witness to enable them to attend court as they have financial difficulty and cannot travel to court. In this case, the witness may interpret the offer as an effort to sway their communications or testimony. It could be that the person who offered to pay the fare is related to the accused, making the witness believe it was an attempt to bribe them. But if the third party's offer was genuine and unrelated to attempts to sway the witness's testimony, the court will not consider it a bribe because the party did not have corrupt intent.

Police Entrapment

Entrapment is a commonly argued defense when a defendant is under prosecution, thanks to an undercover sting operation. In this case, you can assert that you only bribed a witness because a police officer lured you into doing that. This defense is only valid if you can prove you only committed the bribery due to the luring and not for any other reason.

The Victim Was Not a Witness

Remember that this law forbids bribing only a witness, someone about to provide law enforcement with material information, and someone about to be named a witness. That means you can argue that even though you tried bribing someone, that person does not fall under the mentioned categories. However, even though arguing this defense may help you avoid a conviction under the bribery of a witness law, you could still be charged and convicted under a different California bribery statute.

You Were Coerced Into Accepting or Giving a Bribe

Sometimes third parties interested in the case may threaten witnesses or defendants to influence it, especially if the outcome might not be what they hoped for. These people may force the defendant to offer a bribe or witnesses to accept the bribe in exchange for modifying their testimony to influence the case.

If that happened in your case, you could argue that you only committed bribery because somebody else coerced you. That is, another person—someone interested in the case—convinced you to accept or offer the bribe using threats or force.

In the unfortunate event that you are convicted, the good news is that you may have a chance to expunge your conviction record. Under California law, record expungement is possible if a defendant is sentenced to jail or probation. Therefore, you may qualify to expunge your PC 137 or PC 138 conviction record under PC 1203.4 if the judge sentenced you to felony probation instead of prison. You cannot erase your conviction record if you were subject to a prison term.

Therefore, if the case is airtight and a conviction is inevitable, your lawyer can fight and persuade the judge to impose a probation sentence instead of prison. Once you have served your probation, you can then request an expungement. A record expungement will relieve you from all the difficulties that come with a conviction, such as a difficulty or an inability to secure employment, rent an apartment, work on the jury, enroll in higher education institutions, et cetera.

Other Offenses Related to Bribery of a Witness

Apart from being charged under bribery-of-a-witness laws, you may face additional charges for the same act under different statutes. These laws include the following:

PC 68 and PC 67, Bribery of or by Public Employees or Executive Officers

Penal Code Sections 68 and 67 are the state laws that criminalize bribery of or by a public employee or executive officer. Remember, the subjects of these two laws are different from 137 PC. Whereas PC 137 focuses on witness bribery, these laws apply to public employees and executive officers. Violating PC 68 or PC 67 is a felony offense. A conviction carries substantial fines, felony probation, and time in prison for a maximum of four years.

PC 86 and PC 85, Bribery of or by Legislators

PC 85 and PC 86 are the state laws prohibiting bribery of or by legislators. Like 137 PC violations, PC 85 and 86 violations are considered felonies. The consequences of a conviction are a maximum of four years in prison, felony probation, or fines.

PC 93 and 92, Bribery of or by Jurors or Judicial Officers

PC 92 and 93 are statutes that criminalize bribery of or by jurors and judges. Like PC 137, you can only be convicted under PC 92 or 93 if you act with corrupt intent. Violating these two laws is considered a felony crime. Possible consequences upon a conviction include custody in prison for a maximum of four years, significant fines, and felony probation.

Contact an Experienced Los Angeles Criminal Defense Lawyer Near Me

If you have been accused of accepting or offering a bribe in violation of PC 138 or 137 in Los Angeles, call a lawyer for help. Successfully countering witness bribery accusations is complex; only a skilled criminal defense lawyer stands a chance.

At The LA Criminal Defense Law Firm, we are devoted to fighting on our clients' behalf and achieving the best possible outcome for their witness bribery cases or any other criminal charges. Through the prefiling intervention process, we may succeed in making the judge reduce your charges or drop your case entirely. And if that is impossible and we must go to trial, we will develop a solid defense to weaken the prosecutor's evidence. Call us at 310-935-1675 to learn more about our defense strategies.