Witness Intimidation: What You Can Do To Protect Your Witness.

• Author: Hamann, Kristine
• Position: Part 1

WITNESS INTIMIDATION AND WITNESS TAMPERING can occur in any case, from simple misdemeanors to homicides. It has a variety of consequences from the silencing of an entire community, to the murder of a witness, to the recantation of truthful testimony. Though witness intimidation is an insidious problem, there are strategies throughout the investigation and prosecution of a case that can help to keep a witness safe and reduce the impact of intimidation.

This outline focuses on victims and witnesses of violent crime; it does not address specific issues that are raised in family violence cases or sexual assaults. Additionally, although legal references are provided in the footnotes, this is not intended to be a comprehensive legal analysis. For the sake of convenience, victims and witnesses will be referred to collectively as "witnesses." (1)

INITIAL MEETING AND SAFETY ASSESSMENT

The first meeting that a prosecutor has with a witness to a violent crime is a critical time for anticipating and dealing with potential witness intimidation. In addition to gathering information about the case, prosecutors should utilize the first meeting to establish a rapport with the witness and do a safety assessment. Developing a relationship of trust with a witness will go a long way in assuring the witness's willingness to cooperate and see the case through to the end. This can take time. If the witness is amenable, the initial interview may be lengthy so that a comprehensive assessment can be made. Depending on the circumstances, it may be beneficial to conduct the initial interview with an investigator or someone else present. This can be especially helpful if the witness later changes his testimony or alleges some mistreatment during the interview.

In addition to gathering information about the crime, the initial interview should also cover the following areas:

* Contact Information: Collect all contact information from the witness including home addresses, business addresses, email addresses, cell phone numbers and places frequently visited (e.g. religious institutions, community centers, day care centers where children are dropped off).

** Contact Information for Family and Friends: Obtain contact information for the witness's family and friends and other emergency contacts.

** Alternative Methods of Communication: Ask the witness how he communicates with friends and get access to that information as well. This may include communicating through social media or other applications. If the witness stops cooperating, it may be possible to locate the witness by subpoenaing these alternative methods of communication.

* Waiver of Confidentiality: The prosecutor or office advocate can consider obtaining a waiver of confidentiality from the witness during this meeting that will enable the prosecutor to access various relevant records, including if the witness receives government benefits. In the event that the witness becomes uncooperative, this waiver will permit the release of personal information about the witness or records of activity that may assist in the finding the witness's location.

* Risk Assessment of the Witness: From the first meeting, law enforcement and prosecutors should assess a witness's risk of intimidation. This assessment should be reviewed continually throughout the case. (2) This assessment is particularly important if the witness shows signs of reluctance in cooperating. (3) In any case where intimidation is a factor, "timely actions can make the difference between a successful prosecution and an unsuccessful one." (4) In assessing the risk of intimidation, a prosecutor may consider the following risk factors that can be predictors of possible future witness intimidation. (As every case is unique, this list is not exhaustive.)

** The defendant is in a gang that has a reputation for violence.

** The witness or a member of the witness's family has a relationship with the gang or is in a rival gang.

** The witness and the defendant have friends or family in common.

** The witness lives near the defendant or members of the defendant's family.

** The witness and the defendant are incarcerated in the same facility. (5)

* Preserving the Witness's Statement: Law enforcement and prosecutors can consider recording the witness's statement in anticipation of the witness becoming uncooperative later in the case. In some instances it might be prudent to take the witness's statement under oath. A notary can administer an oath to a witness, which may be helpful later if the witness becomes uncooperative. (6) Confer with a supervisor to determine the best course of action. (See section on Uncooperative Witnesses and Evidentiary Considerations for information on the admissibility of a witness's prior statement.)

* Explain the Process: In simple terms, educate the witness about how a case moves through in the criminal justice system and outline next steps for the witness.

* Develop a Safety Plan: After assessing the risks to the witness, a safety plan should be developed to minimize the risk of intimidation.

** Access to Law Enforcement: Where there is a concern about possible witness intimidation, the witness and the witness's family should be advised to call 911. (7) The witness should also be given contact information for the case detective, witness aid services and the assigned prosecutor.

--Cell Phone: If the witness does not have a phone, provide a cell phone to contact the witness and to allow the witness to call if they need help.

--Release from Corrections Alert System: Sign up the witness for alerts that will provide notification of the defendant's release from jail or prison."

* Office Social Worker or Victim/ Witness Advocates: As soon as practicable, connect the witness, and possibly the witness's family, with the office's witness advocate (the "office advocate"). Between court appearances, the office advocate may be the main person in contact with the witness. Office advocates are often more available to the witness and can help with a variety of issues that could enhance the witness's cooperation, such as housing, childcare, and medical issues.

--Brady/Giglio Obligations and Witness Statements: Office advocates should be discouraged from interviewing the witness about the facts of the case. However, if for some reason the advocate has notes on statements made by the witness regarding the case, it may be discoverable in whole or in part. Brady and Giglio considerations apply to work done by office advocates. As a result, it is important that the office advocate have an understanding of what materials must be turned over to the prosecutor who will then turn them over to the defense, including:

--Brady/Giglio Material: Exculpatory evidence and impeachment material must be preserved and turned over to the prosecutor. (9)

--Benefits to the Witness or Others: Benefits provided to the witness or the witness's family from the prosecutor's office are-considered Giglio material and they must be disclosed. These benefits can include witness fees, housing costs, relocation of the witness or witness's family, clothing or other services provided by the office advocate.

--Notes of the witness's statements: Some non-case related notes may be confidential, such as information about the witness's medical condition, but other witness statements about the case must be disclosed.

--Special Needs of the Witness: The prosecutor should inquire about issues that may affect a witness's ability to cooperate or could make them more vulnerable to intimidation. For example, does the witness have children that need to be cared for when he comes to court, or does the witness have an illness that requires special treatment? Simply asking the witness if he has any special concerns or needs may reveal an issue that otherwise would not be discovered.

--Drug or Alcohol Problems: A witness addicted to drugs and/or alcohol is particularly vulnerable to intimidation and may be less likely to cooperate. In some instances, the office advocate can explore various treatment options.

* Safety Plans for Home and Work: Consider advising the witness to adopt safety measures such as alerting security at the witness's home or work and suggesting that the witness change routines such as shopping patterns and routes to work or school. (10)

* Social Media Awareness and Training: The prosecutor, the office advocate or law enforcement should discuss the dangers associated with social media and keeping an online presence. The prosecutor should ask the witness about any on-line profiles and other postings to determine if they could reveal information about the witness or the witness's family. Consider Googling the witness to see what information is easily available to the public. Witnesses should be advised to refrain from posting personal information online or posting information about the case, which the defendant and his associates could see. Prosecutors should consider following the witness's social media accounts as well to see if there is interaction between the witness and the defendant, his family or his associates. This may indicate that intimidation is occurring.

* Community Based Witness Services: It may be possible to provide additional support to the witness through community-based social services. Consider connecting the witness with trustworthy community victim/witness advocate groups, local social services, community groups such as religious institutions, and extended family. The prosecutor's office may also consider contracting with a reliable community based organization for more sustained assistance with a variety of issues including housing, other government services, health and treatment issues, etc. (11) Hospitals may also have some support for the victims that are being treated for injuries related to the case. (12) When referring a witness for these services, a safety analysis should be done to determine if the referral could...