July 13, 2023

The term “obstruction of justice” is a common one in our society, and commonly understood by laypersons to be a criminal act. Recently, “obstruction of justice” has frequently been used in conversation by news commentators regarding the indictment of the 45th US president relating to his alleged retention of classified documents. But of the 37 criminal counts brought by prosecutors against former President Trump in the so-called “Mar-a-Lago” case, not a single one of those counts is called “obstruction of justice.” Instead the counts consist of 31 counts of “willful retention of national defense information,” 1 count of “conspiracy to obstruct justice” (specifically, a conspiracy to “corruptly conceal a record, document, and other object from an official proceeding), 1 count of “withholding a document or record”, 1 count of “corruptly concealing a document or record”, 1 count of “concealing a document in a federal investigation”, 1 count of “scheme to conceal”,  and 1 count of “false statements and representations.”

Aside from the initial 31 counts of willful retention of national defense information, the other counts all relate to a general body of federal criminal law regarding obstruction of justice. Put another way, federal “obstruction of justice” does not refer to a single criminal statute, but an umbrella of often interconnected laws relating to different types of criminal acts that could be charged as an obstruction of justice crime. In addition to the federal obstruction of justice crimes listed above, other such crimes include tampering with a witness, victim, or informant; retaliating against a witness, victim, or informant;  influencing or attempting to improperly influence a juror; obstructing a federal audit; and obstructing a state or local investigation, among other crimes. 

In addition to federal obstruction of law crimes, California state law provides criminal punishments for a number of acts that generally are categorized as obstruction of justice, even though there is no specific criminal statute referred to as “obstruction of justice.” Several of these California state obstruction of law statutes are set forth below. 

What is Offering or Preparing False Evidence?

Pursuant to California Penal Code section 132, “Every person who upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, document, record, other instrument in writing, knowing the same to have been forged or fraudulently altered or ante-dated, is guilty of felony.”

Pursuant to California Penal Code section 134, “Every person guilty of preparing any false or ante-dated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony.”  

What is Destroying Evidence?

Pursuant to California Penal Code section 135, “A person who, knowing that any book, paper, record, instrument in writing, digital image, video recording owned by another, or other matter or thing, is about to be produced in evidence upon a trial, inquiry or investigation, authorized by law, willfully destroys, erases, or conceals the same, with the intent to prevent it or its content from being produced, is guilty of a misdemeanor.” 

What is Witness Tampering?

Pursuant to California Penal Code section 136.1, it is a criminal offense to do any of the following:

  • Knowingly and maliciously preventing or dissuading any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law
  • Knowingly and maliciously attempting to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law
  • Attempting or preventing a victim or witness of a crime from making any report of that crime to a law enforcement or judicial officer, or otherwise impeding an arrest or law enforcement proceeding of the crime

Consequences of Obstruction of Justice Crimes in California

The above California obstruction of justice criminal statutes all include the potential for significant imprisonment time, in addition to other consequences. Obstruction of justice criminal charges are often effectively pursued by prosecutors against defendants for several reasons, one of which is that it is often easier to prove the elements of an obstruction of justice charge than the underlying crime that investigators were pursuing. For example, it may be difficult for a prosecutor to prove that a securities law violation exists, but if there is clear evidence that one person withheld or destroyed documents sought by law enforcement in an official investigation into the matter – even if those documents are not necessarily dispositive of any crime or civil infraction – then it may be much easier to pursue an obstruction of justice claim. 

Furthermore, law enforcement, prosecutors and judges take their roles very seriously, and are often motivated to pursue obstruction of justice investigations and charges against those parties that fail to take their obligations towards the justice system seriously. Thus, even if you are not under investigation for obstruction of justice presently but are being investigated for any other civil or criminal wrongdoing, it is important that you understand the implications of obstruction of justice federal and state laws in your jurisdiction and abide with such obligations accordingly. 

Contact a California White Collar Defense Attorney Today 

Whether you have already been charged with a crime in federal or state court, have been approached by law enforcement or an employer with questions regarding criminal activity, or are concerned about potential criminal ramifications of an action that you may have participated in or even simply been aware of, it is important to seek out experienced criminal defense counsel at the earliest possible moment to discuss your issues in a confidential environment and develop strategies and approaches to minimize your risk. The first steps one takes in responding to a potential criminal enforcement matter are often the most critical, and our attorneys have the experience and skills to counsel and defend you throughout the process to work towards an outcome that defends your freedom, financial interests, and reputation. Contact our office to speak with an experienced federal or state court criminal defense attorney regarding your situation today.

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