California Criminal Jury Instructions (CALCRIM) (2017)

2611. Giving or Offering a Bribe to a Witness Not to Testify

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2611.Giving or Offering a Bribe to a Witness Not to Testify (Pen.
Code, § 138(a))
The defendant is charged [in Count ] with (giving[,]/ [or]
offering[,]/ [or] promising) a bribe to a witness not to testify [in
violation of Penal Code section 138(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (gave[,]/ [or] offered[,]/ [or] promised) a bribe to
(a witness/ [or] a person about to be called as a witness) [or to
someone else acting on the (witness’s/ [or] person’s) behalf];
AND
2. The defendant acted with the corrupt intent that the bribe would
unlawfully persuade the (witness/ [or] person) not to attend (a
trial/ [or] <insert type of other judicial proceeding>).
As used here, bribe means something of present or future value or
advantage, or a promise to give such a thing, that is given or offered
with the corrupt intent to unlawfully influence the witness not to attend
(a trial/ [or] <insert type of other judicial proceeding>).
A person acts with corrupt intent when he or she acts to wrongfully gain
a financial or other advantage for himself, herself, or someone else.
[As used here, witness means someone [or a person the defendant
reasonably believed to be someone]:
<Give the appropriate bracketed paragraph[s].>
[Who knows about the existence or nonexistence of facts relating
to a crime(;/.)]
[OR]
[Whose declaration under oath has been or may be received as
evidence(;/.)]
[OR]
[Who has reported a crime to a (peace officer[,]/ [or]
prosecutor[,]/ [or] probation or parole officer[,]/ [or] correctional
officer[,]/ [or] judicial officer)(;/.)]
[OR
Who has been served with a subpoena issued under the authority
of any state or federal court.]]
[A person is about to be called as a witness (if he or she knows or has
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been told that he or she will be called as a witness[,]/ [or] if he or she
knows material information relating to the issues in a case that has been
or may be filed). [Information is material if it is significant or
important.]]
[The (witness/ [or] person giving information) does not need to (have
accepted the bribe[,]/ have been influenced by the bribe[,]/ [or] have
failed to attend (the trial[,]/ [or] <insert type of other
judicial proceeding>)).]
[Offering a bribe does not require specific words or behavior, as long as
the language used and the circumstances clearly show an intent to
ensure that the witness will not attend (a trial/ [or] <insert
type of other judicial proceeding>). [The thing offered does not need to
actually be given, exist at the time it is offered, or have a specific
value.]]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
Give the bracketed sentence that begins with “The (witness/person giving
information) does not need” if the evidence shows the witness did not accept the
bribe or follow through on the bribe.
Give the bracketed definition of “offering a bribe” if the prosecution is pursuing
this theory. Give the bracketed sentence that begins, “The thing offered does not
need to actually,” on request.
AUTHORITY
• Elements. Pen. Code, § 138(a).
Witness Defined. Pen. Code, § 136(2).
• Bribe Defined. Pen. Code, § 7, subd. 6.
• Corruptly Defined. Pen. Code, § 7, subd. 3.
• About to Be Called as a Witness. People v. Broce (1977) 76 Cal.App.3d 71,
75–76 [142 Cal.Rptr. 628].
• Meaning of Understanding or Agreement. People v. Pic’l (1982) 31 Cal.3d
731, 738–740 [183 Cal.Rptr. 685, 646 P.2d 847]; People v. Diedrich (1982) 31
Cal.3d 263, 273–274 [182 Cal.Rptr. 354, 643 P.2d 971]; People v. Gliksman
(1978) 78 Cal.App.3d 343, 346–350 [144 Cal.Rptr. 451].
• Intent Requirement. People v. Gliksman (1978) 78 Cal.App.3d 343, 346–350
[144 Cal.Rptr. 451].
CRIMES AGAINST GOVERNMENT CALCRIM No. 2611
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• Offering a Bribe. People v. Britton (1962) 205 Cal.App.2d 561, 564 [22
Cal.Rptr. 921].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Governmental Authority, §§ 32–55.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, § 141.10 (Matthew Bender).
RELATED ISSUES
See the Related Issues section of CALCRIM No. 2610, Giving or Offering a Bribe
to a Witness.
CALCRIM No. 2611 CRIMES AGAINST GOVERNMENT
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