Witness intimidation in the digital age.

• Author: O'Malley, Margaret
• Position: Part 1

THE GOAL OF THIS SERIES is to provide an overview of the current landscape of witness intimidation crimes, with particular attention to the profound effect that technological advances have had on how these crimes are perpetrated, investigated and prosecuted.

Part I provides an overview of the various types and sources of witness intimidation, who is intimidated, who intimidates, how witnesses are intimidated and when intimidation occurs.

Part II discusses the problem of discovery as a tool for witness intimidation and recent legislation aimed at limiting the distribution of discovery material to third parties.

Part III examines how various components of the pretrial process may present serious challenges for prosecutors in the protection of witnesses and presents strategies to counteract or mitigate intimidation.

Part IV reviews the challenges presented by the use of Internet and cellular technologies to intimidate victims, witnesses, jurors and judicial officials.

Witness intimidation is a cowardly crime and one of the oldest and most pernicious threats to the function of criminal justice systems worldwide. Regardless of its form or the seriousness of the case, it "strikes at the heart of the justice system itself". (2) The issue has gained particular urgency due to the convergence of readily available digital communications and the rapid expansion across the U.S. of international criminal gangs.

Previous generations wholly endorsed the idea that " [i]t is the duty and the right ... of every citizen, to assist in prosecuting, and in securing the punishment of any breach of the peace...". (3) This is no longer true. Although every criminal defendant has the right "to be confronted with the witnesses against him" at trial, (4) a remarkable number seek to prevent that ultimate confrontation by eliminating essential witnesses, thereby forestalling criminal investigations and thwarting successful prosecutions.

The most visible and widely covered cases of witness intimidation--often the murder of a key witness just days before they are scheduled to testify--involve violent street gangs and organized crime in major urban areas of Baltimore, Philadelphia, Newark, Chicago, Oakland and Los Angeles. However, a more thorough review of state and local press reveals that witness intimidation occurs with surprising frequency in communities such as Portland, Santa Fe, Pottstown, Buffalo, Denver, Charleston and Chattanooga. Although intimidation pervades serious and violent felonies, domestic violence and gang crimes, it also occurs in lesser felony, misdemeanor and even traffic cases before, during and after official investigations and judicial proceedings. Intimidation takes every possible form, from direct violence against a witness to vague threats directed at the family and friends of a potential witness. It occurs at crime scenes, in police stations and courtrooms as well as in witnesses' homes, workplaces, schools and neighborhoods. One of the most insidious forms of intimidation arises from the mere existence of a criminal organization with a reputation for violent reprisal.

Regardless of the crime, location or form, the fundamental purpose is the same: to preclude witnesses from testifying freely and instill fear in others by retaliating against those who report crimes and cooperate with law enforcement.

When intimidation is successful, it is rarely, if ever, reported. Persons known to have been present during a crime refuse to speak with investigators, claim to have seen nothing or deny having been present at a crime scene. (5) If forced to testify, they "forget" everything about the crime, claim a Fifth Amendment privilege or recant and testify for the defendant. Many more simply disappear prior to trial. In the most extreme cases, witnesses and, at times, their families, are executed--publicly and violently. (6)

Unfortunately, the media, legislators, judicial officials and the public most often fail to recognize that every case compromised by witness interference strikes a serious and cumulative blow to our ability to fully and fairly investigate and prosecute the most serious criminal cases. (7) When witnesses refuse to come forward or are fearful of reprisal, not only do the guilty walk, but often the innocent may be wrongfully convicted. When dozens of witnesses flee a crime scene and refuse to provide any information, there is a greater chance that police and prosecutors will rely on false or inaccurate witness statements or eyewitness identifications. Even purported exoneration or wrongful conviction cases can be tainted by witness intimidation and inducements by overzealous project participants. (8)

Without the rule of law, the "law of the street" holds entire communities hostage with fear of violent retaliation against anyone even suspected of being a "snitch." Television, YouTube, Gangsta Rap, "no-snitching" websites and social media not only reflect, but actively promote this fear-driven, anti-law enforcement attitude. In stark contrast to the post 9/11 "see something say something" (9) approach to community responsibility for public safety, this culture imposes the self-defeating, if pragmatic, "say nothing, see nothing, do nothing" response to any and all cooperation, not only with police, but also with prosecutors and the courts. It is particularly effective in communities where there is a distrust of law enforcement--whether due to patterns of individual or institutional corruption or racial and ethnic conflict. (10)

A prosecutors duty is to seek justice through a fair and honest search for the truth. Establishing what is true beyond a reasonable doubt most often requires both physical evidence and sworn testimony. Notwithstanding remarkable advances in forensic technology, a large number of violent crimes leave no usable forensic or physical evidence. Almost without exception, the sworn testimony of a competent witness is essential; "no witness, no case" is more than just a media catchphrase. (11) Prosecutors, unable to...