What Is Considered Obstruction of Justice?

When can you be charged with obstruction of justice? Learn what exactly is considered obstruction of justice andget a legal expert’s take on this crime that snared Martha Stewart.

Adam Freedman
August 4, 2012

What Is Considered Obstruction of Justice?

Shawn writes in to ask: “When is not cooperating with the law enforcement considered obstruction of justice?”  He also asks about how that works in light of the right to avoid self-incrimination..

The quick answer is that the crime of “obstruction of justice” generally requires some affirmative action, and not merely a failure to assist law enforcement.  However, the related concept of “contempt of court” might apply if you fail to comply with a court order, such as a subpoena.

What Is Obstruction of Justice?

Unlike most crimes, which involve harm to persons or property, “obstruction of justice” is a broad term that covers various crimes against the administration of justice.  Such crimes have been recognized by Anglo-American law for centuries, and today there are federal and state statutes covering this variety of crime.


The Martha Stewart Case and Obstruction of Justice 

To get to the heart of Shawn’s question, a simple failure to cooperate generally won’t constitute Obstruction of Justice.  In his email to me, Shawn cited the example of Martha Stewart, the domestic diva found guilty of this crime.  In fact, that’s a useful case in point.

In the Martha Stewart case, the federal Securities and Exchange Commission was investigating alleged insider trading at a company called IMClone.  The criminal case against Stewart alleged that she made false and misleading statements to the SEC, and those accusations ultimately led to Stewart’s conviction in 2004 for obstruction of justice, and the related charge of lying to federal investigators.  In other words, Stewart did not merely fail to help the federal government; she was convicted of actively trying to lead them astray.

Interfering with Evidence or Witnesses

Most examples of obstruction of justice are pretty obvious – they involve interfering with evidence or witnesses in a criminal case.

Most examples of obstruction of justice are pretty obvious--they involve interfering with evidence or witnesses in a criminal case.  If you pick up the smoking gun used by the bank robber, and you throw it into the river, you may be guilty of obstruction of justice--even if you had nothing to do with the original crime.  

Likewise, any attempt to influence or intimidate a witness will usually be found to be obstruction of justice.  Indeed, even an attempt to induce a witness to be unavailable to testify--for example, giving him a one-way ticket to Aruba just before the trial--could be obstruction.

Is Attempting to Influence Judges and Juries a Crime?

Attempting to influence judges and juries can also be a crime.  And not just the classic case of trying to bribe a judge.  Picketing or parading in front of a courthouse in an effort to persuade judges or jurors to decide a certain way can be punished, notwithstanding your First Amendment rights to speech and assembly.    Federal law also has certain very specific obstruction offenses; for example, interfering with a federal examination of a financial institution may constitute obstruction of justice.

What About Contempt of Court?

So when does failure to cooperate--as distinct from outright tampering--get you into trouble?  Basically, when a court or other government agency has ordered you to cooperate.

If you have information relevant to a pending case, you’re generally not required to voluntarily rush over to the courthouse.  But the court can issue what’s known as a subpoena, which orders you to produce documents, or give testimony, or both.  There are penalties for failing to comply with a subpoena; indeed, the word “subpoena” means “under penalty” in Latin. 

Normally, failing to comply with a subpoena exposes you to liability for contempt of court.  In extreme cases, witnesses who fail to cooperate can be locked up.  In the famous Whitewater case, former Clinton aide Susan MacDougal spent eighteen months behind bars for refusing to answer questions pursuant to a grand jury subpoena. 

The Fifth Amendment and Contempt of Court

Shawn is correct to mention the right against self-incrimination, guaranteed by the Fifth Amendment to the US Constitution.  A witness can refuse to answer a question if doing so might tend to expose him or her to criminal liability.  In that case, the witness can “plead the Fifth” and generally will not be at risk for contempt.

And now, your daily dose of legalese:  This article does not create an attorney-client relationship with any reader.  In other words, although I am a lawyer, I’m not your lawyer.  In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community

Thank you for reading Legal Lad’s Quick and Dirty Tips for a More Lawful Life. You can send questions and comments to legal@quickanddirtytips.com. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this article only.