Obstruction of Justice
Elements
• A person who:
(1) knowingly or intentionally induces, by threat, coercion, false statement, or offer of goods, services, or anything of value, a witness or informant in an official proceeding or investigation to:
(A) withhold or unreasonably delay in producing any testimony, information, document, or thing;
(B) avoid legal process summoning the person to testify or supply evidence; or
(C) absent the person from a proceeding or investigation to which the person has been legally summoned;
(2) knowingly or intentionally in an official criminal proceeding or investigation:
(A) withholds or unreasonably delays in producing any testimony, information, document, or thing after a court orders the person to produce the testimony, information, document, or thing;
(B) avoids legal process summoning the person to testify or supply evidence; or
(C) absents the person from a proceeding or investigation to which the person has been legally summoned;
(3) alters, damages, or removes any record, document, or thing, with intent to prevent it from being produced or used as evidence in any official proceeding or investigation;
(4) makes, presents, or uses a false record, document, or thing with intent that the record, document, or thing, material to the point in question, appear in evidence in an official proceeding or investigation to mislead a public servant; or
(5) communicates, directly or indirectly, with a juror otherwise than as authorized by law, with intent to influence the juror regarding any matter that is or may be brought before the juror;
commits obstruction of justice, a Level 6 felony.
Knowingly or intentionally inducing a witness or informant in an official proceeding or investigation: Interpretation of “threat”
• [A] defendant need not threaten violence to commit the crime of obstructing justice.
Brewington v. State, 981 N.E.2d 585, 600 (Ind. Ct. App. 2013), aff’d in part, vacated in part, 7 N.E.3d 946 (Ind. 2014), reh’g denied, cert. denied, 135 S. Ct. 970 (2015)
Knowingly or intentionally inducing a witness or informant in an official proceeding or investigation: Definition and interpretations of “coercion”
• In the context of obstruction of justice, coercion is defined as some form of undue pressure or influence exerted on the will or choice of another.
Examples from case law
• Officer Doughty was on routine patrol in a marked car when he noticed [the defendant’s] vehicle. [The defendant’s] vehicle was parked outside a location where police officers had made previous narcotics runs, and where Officer Doughty had made at least one narcotics-related arrest. When Officer Doughty approached [the defendant’s] vehicle, [the defendant] placed crack cocaine in his mouth and attempted to swallow it. [The defendant] refused to spit the cocaine out when ordered to do so by Officer Doughty, and he pushed Officer Doughty away to prevent the officer from recovering the cocaine. [The defendant] successfully ingested the cocaine, preventing Officer Doughty from seizing it. It is clear that [the defendant’s] actions in refusing to spit the substance out of his mouth after being ordered to do so, and pushing Officer Doughty away when he tried to remove the substance from [the defendant’s] mouth, were done to prevent the officer from confiscating the substance. The fact finder could reasonably infer that [the defendant was aware of Officer Doughty’s investigation and the Officer’s intent to seize the crack cocaine. [The defendant] swallowed the crack cocaine which otherwise would have been used as evidence in a possession charge. There was sufficient evidence to support [the defendant’s] conviction of obstruction of justice.
Brewington v. State, 981 N.E.2d 585, 599 (Ind. Ct. App. 2013), aff’d in part, vacated in part, 7 N.E.3d 946 (Ind. 2014), reh’g denied, cert. denied, 135 S. Ct. 970 (2015)(citing Brown v. State, 859 N.E.2d 1269, 1271 (Ind. Ct. App. 2007), trans. denied)
See Sheppard v. State, 484 N.E.2d 984, 988 (Ind. Ct. App. 1985), reh’g denied, trans. denied(“[I]t appears that ‘coercion’ carries with it, at a minimum, the sense of some form of pressure or influence being exerted on the will or choice of another.”)
• Forms of pressure or influence include, but are not limited to, intimidation, physical force, threats, and harassment.
Brewington v. State, 981 N.E.2d 585, 599 (Ind. Ct. App. 2013), aff’d in part, vacated in part, 7 N.E.3d 946 (Ind. 2014), reh’g denied, cert. denied, 135 S. Ct. 970 (2015)(citing Brown v. State, 859 N.E.2d 1269, 1271 (Ind. Ct. App. 2007), trans. denied)
See Sheppard v. State, 484 N.E.2d 984, 988 (Ind. Ct. App. 1985), reh’g denied, trans. denied(footnote omitted)(“The form that the pressure or influence may take for purposes of 'coercion' in our obstruction of justice statute may vary widely—and certainly includes harassment, physical force, intimidation and threats—as long as it is exerted knowingly or intentionally to induce conduct by a witness or informant that is proscribed by the statute . . . .”)
• Whatever the form of pressure or influence, there should be a consequence for failure to comply; otherwise the statement is not coercive, but is merely a request.
Brewington v. State, 981 N.E.2d 585, 599-600 (Ind. Ct. App. 2013), aff’d in part, vacated in part, 7 N.E.3d 946 (Ind. 2014), reh’g denied, cert. denied, 135 S. Ct. 970 (2015)(citing Brown v. State, 859 N.E.2d 1269, 1271 (Ind. Ct. App. 2007), trans. denied)
Making, presenting, or using a false record, document, or thing: In general
• With regard only to the appearance of a false record in an official proceeding, the statute does not require that the false record, document, or thing be offered into evidence at trial. The statute is also satisfied if the record, document, or thing appears in an investigation.
State v. Howell, 921 N.E.2d 503, 507 (Ind. Ct. App. 2009), trans. denied
Making, presenting, or using a false record, document, or thing: Materiality
• Materiality is . . . an essential element of the offense of obstruction of justice that the State must prove beyond a reasonable doubt.
Vandivier v. State, 822 N.E.2d 1047, 1052 (Ind. Ct. App. 2005), trans. denied
Making, presenting, or using a false record, document, or thing: Framework to be applied when making determinations of materiality
• [T]he trial court must first make a preliminary determination of materiality when assessing the admissibility of the evidence. If it finds the evidence admissible, it must then submit the issue to the jury for the jury to weigh the evidence and determine whether the State proved materiality beyond a reasonable doubt. If, on the other hand, the trial court finds that the evidence is immaterial and, thus, inadmissible, the obstruction of justice charge must be dismissed.
Vandivier v. State, 822 N.E.2d 1047, 1052 (Ind. Ct. App. 2005), trans. denied
Making, presenting, or using a false record, document, or thing: Not required to prove actual obstruction
• With regard to an obstruction of justice charge, we note that the State is not required to prove actual impairment of the investigation, and the mere potential influence with a line of inquiry is sufficient to establish materiality.
Moore v. State, 845 N.E.2d 225, 227-28 (Ind. Ct. App. 2006), trans. denied(citing Vandivier v. State, 822 N.E.2d 1047, 1054 n. 6 (Ind. Ct. App. 2005), trans. denied)
See Roush v. State, 875 N.E.2d 801, 810 (Ind. Ct. App. 2007)(quoting Vandivier v. State, 822 N.E.2d 1047, 1054 n. 6 (Ind. Ct. App. 2005), trans. denied)(“‘The State is not required to prove actual impairment of the investigation. Mere potential influence with a line of inquiry is sufficient to establish materiality.’”)
Inherently included lesser offenses: False reporting
• [I]t is possible to commit obstruction of justice without first committing false reporting. False reporting is committed only in the context of a criminal investigation. However, obstruction of justice may be committed in contexts other than a criminal investigation. Obstruction of justice is committed when a person intends a false record to appear in evidence in any official proceeding or investigation. Therefore, false reporting is not an inherently included lesser offense of obstruction of justice.
Kingston v. State, 479 N.E.2d 1356, 1358 (Ind. Ct. App. 1985), reh’g denied, trans. denied
• [The witness’s] uncorroborated testimony is sufficient to prove that [the defendant] helped to remove the methamphetamine precursors from the car with the intent to prevent them from being produced or used as evidence in an official proceeding or investigation. Accordingly, we conclude that probative evidence exists to support [the defendant’s] conviction for obstruction of justice.
Smith v. State, 809 N.E.2d 938, 943-44 (Ind. Ct. App. 2004), trans. denied
• By creating a false document and attempting to induce [a third party] to sign it for use as evidence in this disciplinary investigation, [the] Respondent committed the offense of attempted obstruction of justice . . . .