Chapter 29 OBSTRUCTION OF JUSTICE

• Jurisdiction: North Carolina

29 OBSTRUCTION OF JUSTICE

A. Definition

Obstruction of justice may be defined as an act "that obstructs, impedes or hinders public or legaljustice."¹

It is ordinarily thought of as a crime, and is indeed a criminal offense under article 30 of chapter 14 of the North Carolina General Statutes. That article identifies several² actions that obstruct justice: breaking or entering jails with intent to injure prisoners;³ altering, destroying, or stealing evidence of criminal conduct;⁴ altering court documents or entering unauthorized judgments;⁵ resisting officers;⁶ making false reports to law enforcement agencies or officers;⁷ picketing or parading with intent to interfere with, obstruct, or impede the administration of justice or influence judges, jurors, witnesses, district attorneys, assistant district attorneys, or court officers;⁸ harassment of and communication with jurors;⁹ intimidating or interfering with witnesses;¹⁰ violating orders of court;¹¹ threatening or intimidating a member of a neighborhood crime watch program or a resident in the same household as a member for the purpose of intimidating or retaliating against them for participating in the program;¹² interfering with an electronic monitoring device;¹³ and failing to attend as a witness before legislative committees.¹⁴ Additionally, there are statutes making it a crime to bribe jurors¹⁵ or to secretly listen to a conference between a prisoner and his or her attorney or to jury deliberations.¹⁶ However, a civil common-law claim for obstruction of justice is also a valid cause of action in North Carolina.¹⁷ It is an intentional tort.¹⁸

B. Elements

There are few reported North Carolina appellate decisions that even mention obstruction of justice as a civil action, and none of those identify a generic list of elements. However, some conclusions may be drawn from the specific statements made by the courts in those cases. The common threads in those decisions are:

(1) A wrongful act that violates the common law concept of obstruction of justice,
(2) Intent to obstruct justice, and
(3) Damage to the plaintiff as a result of the defendant's action.¹⁹

It is not, however, necessary that there be a suit pending against the plaintiff for there to be standing for a valid obstruction of justice claim.²⁰

C. Elements Defined

1. A Wrongful Act that Violates Common-Law Concept of Obstruction of Justice

An "affirmative action to obstruct or impede justice" has been described as a "bedrock element of the common law tort of obstruction of justice."²¹ A claim for common-law obstruction of public justice must allege conduct that interferes with an official pending proceeding or one about to be instituted.²² There is, however, no requirement that that a suit be pending.²³ Indeed, the fact that a court has jurisdiction may bar a claim. For example, defendants in an application for probate made allegedly false statements under penalty of perjury and later, on a motion to revoke probate, they testified falsely. Plaintiffs brought a claim for obstruction of justice. The court said the crux of the claim was the alleged commission of perjury and/or subornation of perjury and, therefore, dismissal of the claim was proper. The court noted that there is no cause of action for perjury and that defendants were subject to criminal sanctions for any perjury they committed.²⁴

Thus, where the plaintiff alleged the defendant's actions prevented her from obtaining the certification required to bring a malpractice action and from successfully prosecuting that action against the defendant and others, the alleged actions directly prevented, obstructed, or impeded public or legal justice by precluding the filing of a civil action and supported an action for obstruction of justice.²⁵

Generally, to maintain a claim, a plaintiff has to present evidence that his or her case was in some way judicially prevented, obstructed, impeded or hindered by acts of the defendant, but an attempt to prevent, obstruct, impede or hinder may be sufficient to support a claim. For example, in Reed v. Buckeye Fire Equipment Co.,²⁶ one of the defendants threatened to disclose to the plaintiff's wife a personal communication the plaintiff received from another female if the plaintiff pursued his lawsuit. Because the plaintiff admitted the threat did not prevent, obstruct, impede or hinder his plan to sue, but instead made him more determined than ever to file suit, the federal trial court found that he could not establish a claim for obstruction of justice and granted summary judgment to the defendants. The Fourth Circuit Court of Appeals reversed.²⁷ It said North Carolina case law supported finding a legally sufficient claim where the defendant attempted to prevent, obstruct, impede or hinder justice.²⁸ Thus, taking the allegations in Reed as true, threatening to reveal compromising correspondence was, said the appellate court, so designed to impede the plaintiff's access to the legal system as to support a claim of obstruction of justice under North Carolina law. Summary judgment was inappropriate.

In general, refusal to appear in a legal action to testify, obstructing the efforts of others to appear and testify, or falsification of evidence may support a finding of liability for common-law obstruction of justice; however, that a witness fails to appear and testify at a civil trial without having been properly served with a valid subpoena does not support a finding of liability for obstruction of justice without proof that person took affirmative action to preclude service of a required subpoena.²⁹

Some cases that have considered obstruction of justice claims involve wrongful acts that are, at least arguably, encompassed by article 30 of chapter 14. For example, in Burgess v. Busby,³⁰ the complaint alleged, inter alia, that the defendant alerted health care providers to the names of jurors in a prior action in retaliation for their verdict in that action. This would appear to violate the statute prohibiting harassment of jurors, and indeed, the court added that the complaint also alleged "all the necessary elements of obstructing justice through harassment of and communication with jurors" under article 30, chapter 14. In any event, the court concluded the allegation, together with two others, sufficiently alleged a cause of action for common-law obstruction of justice.

In a federal district court case,³¹ the defendants allegedly attempted to force the plaintiff to sign a false affidavit. The affidavit would have provided false testimony in a civil suit that was subsequently filed. The plaintiff was terminated from her job after she refused to sign the false affidavit. These allegations were sufficient to show that the defendants "attempted to impede the legal justice system through the false affidavit." Violation of the section of article 30, chapter 14 concerning intimidation or interference with a witness would seem to be implicated.³² Subsequently, the court dismissed the claim. It said the affidavit was not signed by the plaintiff and she had not shown that it was used in litigation. Assuming the litigation at issue need not have involved the plaintiff as a party, said the court, she still had not presented evidence that the case was in some way judicially prevented, obstructed, impeded or hindered, and there was no evidence of the disposition of that action or any showing the affidavit adversely impacted it.³³

In Henry v. Deen,³⁴ the plaintiff, administrator of an estate, alleged the defendants conspired to impede his investigation of a wrongful death by destroying medical records of plaintiff's decedent and by "falsifying and fabricating records to cover up the defendants' alleged negligence." Those acts, if found to have occurred, said the court, would be ones that obstruct, impede, or hinder public or legal justice, and amount to the common-law offense of obstructing public justice. The acts might be considered to violate the statute prohibiting alteration or destruction of evidence of criminal conduct, although criminal conduct was not at issue.³⁵ The Deen court appears to take obstruction of justice beyond the parameters of article 30, chapter 14 by invoking the rules related to discovery in civil actions. North Carolina has, said the court, a policy "against parties deliberately frustrating and causing undue expense to adverse parties gathering information about their claims," as manifested in the rules. "Where, as alleged here," concluded the court, "a party deliberately destroys, alters or creates a false document to subvert an adverse party's investigation of his right to seek a legal remedy, and injuries are pleaded and proven, a claim for the resulting increased costs of the investigation will lie."³⁶ On the other hand, it appears that no cause of action for obstruction of justice lies against a third party who fails to produce documents or other materials requested by a litigant, and a mere witness cannot be held liable for obstruction of justice for failure to provide an accurate report or to correct an allegedly inaccurate report requested by a party to litigation.³⁷

That a civil action for obstruction of justice may be based on actions not prohibited by article 30, chapter 14 is supported by a North Carolina Supreme Court case where the justices said that article 30, chapter 14 neither abrogates the common law offense of obstruction of justice nor encompass all aspects of it. As evidence for the latter assertion, the court noted that the legislature placed the statute prohibiting bribery of jurors, an action characterized by the court as "surely an obstruction of justice offense," outside article 30, even though it is article 30 that is titled "Obstructing Justice." The court then went on to hold that attempting to prevent a grand jury from convening — something none of the offenses in article 30 would appear to address — would be an allegation that would support a charge of common-law...