What's in a name?

• Author: Perry, Laura
• Position: Witness protection

"Without a continuing and visible public commitment to [witness] protection, it is unrealistic to expect citizens to come forward and provide the information so critical to the successful operation of the criminal justice system. To the extent that government fails to meet this essential responsibility, it cedes control of our cities to the criminals."

--Wallace v. City of Los Angeles, 16 Cal. Rptr. 2d 113, 126-27 (Ct. App. 1993)

INTRODUCTION

The courtroom was packed. The prosecutor's words rang out like a death sentence. The prosecutor announced, "'Rickey Prince would testify that he saw the defendant shoot at the victim's group.'" (1) The courtroom erupted. (2) Several days later, seventeen-year-old Rickey Prince was kidnapped by two gang members, driven to a landfill, and shot in the back of the head. (3) The prosecutor had effectively condemned his own witness to death by reading his name aloud to a courtroom filled with the defendant's friends, two of whom found and killed Rickey. (4) Rickey was an innocent bystander to the original crime who had only agreed to testify because his mother had urged him to give a statement to the police. (5) He was unaware he was in danger and continued to go to school and work. (6) His name was revealed to the defendant during discovery, and although the defendant had agreed to plead guilty, thereby making Rickey's testimony unnecessary, he was still murdered for being willing to testify. (7)

Rickey Prince's murder was tragic; he would not have been kidnapped and shot had the prosecutor described Rickey as "a witness" instead of using his name. (8) The greater tragedy is that Rickey's murder is not an anomaly. (9) Although not all witnesses are murdered for agreeing to testify, as of 1995, prosecutors estimated that victim and witness intimidation plays a role in 75-100% of violent criminal cases. (10) Witness intimidation is so pervasive because the judicial system allows it. Defendants are permitted to abuse the Sixth Amendment's Confrontation Clause. (11) They have the power to use the fight not as a shield to protect against conviction by ex parte affidavits but as a sword to gain access to and intimidate witnesses. (12) This abuse creates a gaping hole in witness protection. When a witness agrees to testify, if he is required to divulge his name and residential address during any part of discovery or on the witness stand; the witness is effectively asked to put himself and his family in danger. (13)

This abuse of the Confrontation Clause ties the hands of witnesses, prosecutors, and police. Witnesses have both a Constitutional right and duty to testify when they have seen a crime. (14) However, without protection from intimidation, witnesses are unwilling to come forward to testify, and crimes often go unreported or unsolved. (15) Prosecutors could threaten witnesses with obstruction of justice or contempt charges, but those threats would simply fuel an incentive to not come forward in the first place. (16) If a witness does agree to testify, often the only protection offered is a relocation program--the traditional solution to witness intimidation. (17) But these programs are flawed, inadequate, and unable to provide protection without requiring the witness to sacrifice his entire life because he saw someone else commit a crime. (18) In order for the justice system to function correctly, witnesses must be encouraged to testify and not asked to make serious sacrifices without greater support. (19)

It is the fight of confrontation, guaranteed by the Sixth Amendment but wrongly interpreted as mandating the witness's name and address always be revealed, that allows defendants to prevent witnesses from testifying, thereby bringing the effective prosecution of gang cases to a screeching halt. This Note proposes the fight to confront has been read too broadly. It has been read to guarantee more protections than required by the text, thus exposing witnesses to more danger than necessary. With a more narrow reading of the Sixth Amendment, trial courts can protect the identities, addresses, and faces of particular witnesses without sacrificing defendants' rights to confront adverse witnesses. After analyzing the history of the fight to confront, how it is applied, the difficulties created by the clash between the rights of the witness and the defendant, and how witness protection programs fail witnesses, this Note suggests a two-step, four-tiered solution. This solution will give judges discrete criteria to use when a witness's right to testify freely conflicts with the defendant's fight to confront his accuser. While no solution is without its flaws, a solution must be found while there are still witnesses who are willing to testify.

1. THE CONFRONTATION CLAUSE: ITS HISTORY AND APPLICATION

   The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the fight ... to be confronted with the witnesses against him." (20) It is well established the intended purpose of the Confrontation Clause was to assure that convictions would be based upon reliable evidence. (21) That reliability is guaranteed by exposing the evidence to a particular procedure: confronting the witness. (22) While the text of the Constitution clearly sets out that a defendant has a right to confront witnesses, the nature and limits of that confrontation are undefined. (23)

   There is a debate over which procedures are central to and guaranteed by the right to confront, and which are peripheral, i.e. procedures that add to a more robust confrontation but are not necessary under the Constitution. (24) By examining the right's history, particularly its roots and interpretation both before and after the influential case of Crawford v. Washington, (25) and its application in cases involving sexually abused child witnesses and the forfeiture by wrongdoing exception, it will be clear the core procedural guarantee of the Confrontation Clause is the right to cross-examination.

   1. The History and Development of the Right to Confront Reveals its Purpose Was to Guarantee an Opportunity for Cross-Examination.

      In order to understand the confrontation right and its proper interpretation, it is helpful to review the right both historically and based on the Supreme Court's interpretation, especially in light of Crawford.

      1. The history of the right to confront shows the right was developed in response to absent accusers whose credibility went untested

         "[W]ith a lineage that traces back to the beginnings of Western legal culture," (26) the right to confront one's accusers is not a recent development. Throughout its history, confrontation has been deemed fundamental to the judicial system, but its exact parameters have changed and developed based on the evolving structure of the relevant judicial venue. (27) Confrontation, as a legal practice, can be traced to the Roman Empire and the trial of Paul the Apostle in 60 A.D. (28) Even William Shakespeare incorporated the right into one of his plays, wherein Richard the Second described it as a face-to-face examination where the accused and the accuser could hear the other speak. (29) One of the reasons spurting the pilgrims to sail to Plymouth Colony was the King of England's "inquisitorial system of criminal procedure," which permitted a defendant to be convicted based on the words of faceless accusers. (30)

         This system of "forgoing the use of juries, dispensing with established criminal procedure, and relying on unidentified accusers" was the method by which the King of England's Privy Council, later known as the Star Chamber, would use to try citizens of various crimes. (31) The abuses by the judges of the Star Chamber were so excessive that Parliament would eventually condemn it as "tyrannical," and the Star Chamber was abolished in 1641. (32)

         The 1603 trial of Sir Walter Raleigh for treason was particularly important to the development of the right to confront because it was a well-known and frightening example of the injustice that could result when a defendant is unable to crossexamine his accuser. (33) Raleigh was convicted by the previous examination of and a letter from his alleged accomplice, Lord Cobham. (34) The examination and the letter were read to the jury, but Cobham was not present, thereby not subject to cross-examination. (35) Raleigh demanded that under English common law's tradition of live testimony in court, Cobham be called before the jury and subjected to cross-examination. (36) Despite Raleigh's protests, the judges refused his demands. They did not force Cobham to testify, and Raleigh was convicted of treason and sentenced to death. (37) One of the judges in the case later remarked "the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh." (38)

         As a result of their experiences with the Star Chamber, the "curious institution ... [that] has for centuries symbolized disregard of human rights," the colonists had a strong desire to "prevent the abuses" that had occurred in England. (39) The colonial constitutions of Massachusetts, New Hampshire, North Carolina, Pennsylvania, Delaware, Vermont, Maryland, and Virginia all contained provisions guaranteeing the right to confront. (40) In fact, it was almost assumed that the right to confront would be included in the Bill of Rights and there was very little discussion of its scope or why it was necessary. (41)

         The right to confront was understood as a "barrier against flagrant abuses, trials by anonymous accusers, and absentee witnesses" (42) to the full extent it was understood under English common law. (43) As such, the most important aspects of the right were the physical presence of a live witness in court and the ability to cross-examine that witness. (44) Anti-federalist publications, written under the pseudonym of Federal Farmer, clarified "[n]othing can be more essential than the cross examining [of] witnesses." (45) In...