In general
• Threats by the accused against prosecution witnesses are considered attempts to conceal or suppress implicating evidence and are “relevant and admissible into evidence.” Such threats are viewed as admissions of guilt and therefore are relevant to demonstrate an accused's guilty knowledge.
Matthews v. State, 866 N.E.2d 821, 825 (Ind. Ct. App. 2007), trans. denied(quoting Johnson v. State, 472 N.E.2d 892, 910 (Ind. 1985), reh’g denied)
See Valle v. State, 550 N.E.2d 746, 748 (Ind. 1990), reh’g denied(citing Johnson v. State, 472 N.E.2d 892, 910 (Ind. 1985), reh’g denied)(“Threats against witnesses are considered as attempts to conceal or suppress implicating evidence and are relevant to demonstrate an accused's guilty knowledge.”)
See also Bassett v. State, 895 N.E.2d 1201, 1211 (Ind. 2008), cert. denied, 556 U.S. 1171 (2009)(quoting West v. State, 755 N.E.2d 173, 182 (Ind. 2001))(“There is a long-standing line of cases holding that ‘threats against potential witnesses as attempts to conceal or suppress evidence are admissible as bearing upon knowledge of guilt.’”)
See also Cox v. State, 422 N.E.2d 357, 361 (Ind. Ct. App. 1981)(citing Keesier v. State, 56 N.E. 232, 234 (Ind. 1900))(“Generally, threats made against a witness by the defendant are in the nature of an attempt to manufacture or suppress evidence and are therefore viewed as an admission of guilt.”)
• Threats are relevant and proper for consideration by the jury.
Gambill v. State, 479 N.E.2d 523, 528 (Ind. 1985)(citing Stanley v. State, 435 N.E.2d 54, 61 (Ind. Ct. App. 1982))
See Cox v. State, 422 N.E.2d 357, 361 (Ind. Ct. App. 1981)(citing Keesier v. State, 56 N.E. 232, 234 (Ind. 1900))(“Although such threats are not viewed as conclusive admissions, their relevance on the issue of guilt normally renders them proper for jury consideration.”)
• For information about fabrication and destruction of evidence as circumstantial evidence of consciousness of guilt, please review Fabrication and Destruction of Evidence.
Proper foundation for admissibility: In general
• Since threats tend to show guilty knowledge or an admission of guilt on the part of the defendant, a proper foundation must be laid showing the threats were made either by the defendant or with his or her knowledge or authorization.
Cox v. State, 422 N.E.2d 357, 361-62 (Ind. Ct. App. 1981)(citing Barnes v. State, 403 N.E.2d 331, 331 (Ind. 1980))
Kimble v. State, 451 N.E.2d 302, 306 (Ind. 1983)(citing Barnes v. State, 403 N.E.2d 331, 331 (Ind. 1980))(“Since threats tend to show guilt on the part of the defendant, a proper foundation must be laid to show that the threats were made by the defendant or by some third party with the defendant's knowledge or authorization.”)
See also Benson v. State, 762 N.E.2d 748, 751-52 (Ind. 2002)(quoting Cox v. State, 422 N.E.2d 357, 361-62 (Ind. Ct. App. 1981))(“A principal concern in Cox was that such threats ‘tend to show guilty knowledge or an admission of guilt’ on the part of the defendant, thus requiring a proper foundational showing that the threats ‘were made either by the defendant or with his or her knowledge or authorization.’”)
• Barring such a showing, the highly prejudicial nature of such testimony requires its exclusion.
Cox v. State, 422 N.E.2d 357, 362 (Ind. Ct. App. 1981)
Proper foundation for admissibility: Threats by unidentified third persons
• “[A] threat by a third person against a public official or witness is relevant only if the defendant is linked in some way to the making of the threat.” Thus, evidence of threats made by unidentified third persons usually lacks a sufficient connection to the defendant to render them admissible.
Cox v. State, 422 N.E.2d 357, 361-62 (Ind. Ct. App. 1981)(quoting 1 Wharton's Criminal Evidence s 217 (13th ed. C. Torcia 1972))
See Benson v. State, 762 N.E.2d 748, 751-52 (Ind. 2002)(citing Cox v. State, 422 N.E.2d 357, 362 (Ind. Ct. App. 1981))(“Cox emphasized that evidence of threats made by unidentified third persons usually lacks a sufficient connection to the defendant to be admissible.”)
Examples of implied threats
• Even though [the defendant] made no direct threats to kill in this case, certainly his motive for actually killing one witness and wounding the other can be placed on a par with an implied threat, which, we have held, suffices to show [the defendant’s] attempt to conceal inculpatory evidence.
Valle v. State, 550 N.E.2d 746, 748 (Ind. 1990), reh’g denied
• [The defendant] also objects to the court permitting [the witness] to testify [that the defendant] came into [the witness’s] bedroom and held him down on the bed. While holding him in that position, [the defendant] took a butcher knife and traced around [the witness’s] body. The knife cut the bedding in several locations. [The defendant] contends this evidence is not relevant. [The defendant] is incorrect. This event coming close on the heels of [the defendant’s] admission to [the witness] that he committed the crime in question is clearly an implied threat.
Gambill v. State, 479 N.E.2d 523, 528 (Ind. 1985)
• The [defendant] had knowledge of the fact that Mildred Butler had turned in his name and booty from the crime to the police. Consequently, [the defendant’s] act of shooting at her house gives rise to the inference that he was threatening and harassing a potential witness, and thus, such evidence is relevant on the issue of guilt.
Connell v. State, 470 N.E.2d 701, 705 (Ind. 1984)
Not excluded as prior crimes, wrongs, or other acts
• Threats against potential witnesses are not introduced as prior acts of misconduct to impeach the credibility or attack the character of the defendant. We have long held that threats against potential witnesses are attempts to conceal or suppress implicating evidence, and are admissible as bearing upon a defendant's guilty knowledge.
Neal v. State, 659 N.E.2d 122, 124 (Ind. 1995), abrogated on other grounds by Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)(citations omitted)
Excluded as hearsay
• For information on when threats can be excluded by the hearsay rule, please review Threats and Warnings.