Penal Code § 318: Witness Demanding or Taking a Bribe

It is quite common in domestic violence cases for one spouse (the alleged victim) who reported the other spouse (our client) to police to demand that our client pay her (or him) money in exchange for “dropping” the  the prosecution.  Likewise, the alleged victim may demand money to recant her (or his) testimony or not appear at trial.  

In over fifty years of combined practice, we have seen this happen at least ten times in the domestic violence context alone.  We have also seen it in other types of cases, too.  It is not only sad that anyone would seek to manipulate our judicial system for money, but it is illegal.

Penal Code § 318(a) provides that “Every person who gives or offers or promises to give to any witness or person about to be called as a witness, any bribe upon any understanding or agreement that the person shall not attend upon any trial or other judicial proceeding, or every person who attempts by means of any offer of a bribe to dissuade any person from attending upon any trial or other judicial proceeding, is guilty of a felony.”

Subsection (b) provides: “Every person who is a witness, or is about to be called as such, who receives, or offers to receive, any bribe, upon any understanding that his or her testimony shall be influenced thereby, or that he or she will absent himself or herself from the trial or proceeding upon which his or her testimony is required, is guilty of a felony.”

In other words, this law prohibits not only the victim from demanding a payment in exchange for not testifying or even attending a hearing in (b), but it also bars a person such as the defendant or anyone else from offering a payment to another person in exchange for that person not attending a hearing (including trial) or not testifying in (a).  

The witness demanding such a bribe or the person offering the bribe to a witness must do so with a “corrupt intent,” meaning to wrongfully change or alter the outcome or result of the proceeding or trial from what it otherwise would result in for defendant or defendant’s family.

The law applies to both criminal proceedings and civil proceedings, i.e., civil restraining order hearings, civil litigation and family law proceedings.

A violation of § 318 is a “straight felony,” as distinguishable from being a “wobbler,” an offense that can be charged as a felony or a misdemeanor.  The maximum punishment is four years in state prison, which is served in county jail unless the person has a prior conviction requiring him or her to register as a sex offender under Penal Code § 290.  

Probation is possible, although the terms of probation may be quite tough, such as including a large amount of community labor (i.e., Cal-Trans) or community service and payment of significant fines.

The defenses to being charged with violating Penal Code § 318 are rather straightforward.  They are that the suspect did not make any offer or demand for money (or other compensation, i.e., drugs or some other reciprocal benefit) and that the other person misunderstood them.  Second is that the offer or demand was not made with any intent to “’corrupt” the outcome of the case because the offer or demand was really just a request or offer to pay for that person’s time and inconvenience in having to come to court and not to affect the outcome in the case in some significant way to someone’s advantage.  Third, the suspect may argue that he or she was not a witness anyways, so the statute does not apply to him or her.  

Lastly, and most commonly, the person accused of demanding or offering a bride may defend himself or herself by arguing he or she is being falsely accused of this.  If this is the defense, it is good to explain that such a false accusation is likely because the accuser is jealous of him or her, has an ulterior motive of seeking revenge for some past injury or is simply trying to intimidate the person into being quiet because of anger toward the other person.