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

• Author: Hamann, Kristine
• Position: Part 2

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." (*)

HEARINGS AND TRIAL

The greatest risk of intimidation for a witness may occur during or immediately before hearings and trial, when the consequences for the defendant are most apparent and looming. This is also a time when the witness and the defendant and his family are all in the same place--the courthouse. Keeping witnesses safe at this stage of the proceeding requires careful, advanced planning. Below is a list of strategies that should be considered as the hearings and trial approach.

Preparing for Hearing and Trial

* Re-Evaluate Witness Safety: Assess the witness's current situation at home and at work to determine if the witness is safe. Make sure that the witness has support from the office victim advocate, social services or other community groups, where needed. Keeping in touch with the witness during the pendency of the case, which in some instances could be months or years, will provide valuable insights about the witness's safety needs and his or her willingness to cooperate. Be particularly vigilant if the witness stops returning phone calls or emails or is unresponsive to other methods of communication.

* Information Disclosed to the Defense: Do a thorough review of any paperwork or recordings that will be disclosed to the defense prior to trial to make sure they are properly redacted. If there is new information about witness intimidation, seek additional protective orders to limit, delay or prevent disclosure of information that may jeopardize a witness' safety.

* Monitor Jail Calls and Jail Visits: As the hearings and trial approach, the defendant may be more focused on preventing the witness from testifying. Even if earlier jail calls were not monitored, it may be prudent to monitor jail calls and jail visits at this stage.

* Note: While most jail and prison facilities monitor inmate phone calls for institutional security, there may be limits on the ability of a prosecutor to use these statements at trial if the inmate was previously unaware that the phone conversations could be disclosed to the prosecutor. (32)

* Transportation To and From the Courthouse: Assess in advance how the witness will arrive in the prosecutor's office and how the witness will get to court. Be mindful of the dangers associated with sending law enforcement to a witness's house and consider sending a car service for the witness instead, so as not to alert people in the neighborhood of the witness's cooperation. Also make sure to have the witness use safe, non- public entrances to the courthouse at all times when possible, such as using the judges' entrances.

** Disguising the Witness: If the witness can only get to court through public spaces, consider having the witness cover up in some way so as not to be recognizable.

** Incarcerated Witness: Witnesses in custody are at high risk for intimidation and assault. (33) The incarcerated witness cannot simply be produced to court at the same time as the defendant using regular procedures. Instead, arrangements can be made for a police officer or investigator to take the witness directly out of the jail facility. In some instances an order to produce the witness for an unrelated matter can be used, though steps must be taken to separate the witness from the defendant.

* Preparing the Witness About Concerns in the Courtroom: Let the witness know that if the witness is concerned about possible intimidation in the courtroom while he is testifying, he should ask the court for a recess to discuss the matter with the court.

* Emergency Witness Relocation: If the witness is at high risk, consider relocating the witness during the pendency of the trial. Relocating a witness is complex and time consuming. Often other members of the witness's family must also be relocated. Other considerations such as the witness's job or medical condition can make relocation even more difficult. Typically, relocation means moving the witness to a hotel before and during the time when the witness is required to testify. In other instances, the witness might need to be moved permanently. Public housing has some provisions to move a witness from one apartment to another in an emergency.

* Documentation of Possible Witness Intimidation: Continue documenting any event that may indicate intimidation of a witness. This could form the basis for seeking to introduce the witness's testimony if the witness becomes uncooperative.

* Subpoena the Witness to Testify in Court: Subpoenas must be served on the witness in person. Though not a foolproof means of securing a witness's testimony, a subpoena serves a number of purposes:

** It can be used to compel the witness to testify. It demonstrates to the witness that testifying is required and not optional.

** It is documentation that the witness can use to explain absence from work or school.

** If the witness does not appear, the service of a subpoena demonstrates to the court that efforts were made to secure the witness's attendance. The refusal can also be part of the factual basis for obtaining a Material Witness Order or seeking to admit the prior statements of a witness.

Hearings

* Protective Orders: Undercover police officers, confidential informants and other vulnerable witnesses may have to testify at a pre-trial hearing. Some will not have to testify at trial but are only needed for the hearing. Various types of protective orders can be requested at the hearing stage to protect these witnesses. When considering a protective order application, a judge must decide upon a solution that is least restrictive of the defendant's rights. A full and detailed outline of the facts must be placed on the record to support the issuance of a protective order.

** Closing the Courtroom to the General Public: The standard for closing the courtroom to the public usually requires:

** The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced;

** The closure must be no broader than necessary to protect that interest;

** The trial court must consider reasonable alternatives to closing the proceeding; and

** The court must make findings adequate to support the closure." (34)

** Undercover Police Officer: If an undercover police officer testifies at a hearing or trial, an application can be made to close the courtroom to the public or to provide other methods of security. The closing of the courtroom can be based on concerns for the officer's safety as well as the need for confidentiality of ongoing or future investigations (35). The officer may also be allowed to testify using an undercover number, rather than a real name.

** Partial Closing of the Courtroom: The court can decide whether to close the courtroom to everyone but the parties, including the defendant's family and friends, or the court can partially close the courtroom only to certain designated people, such as those who live in the neighborhood where the undercover conducts his investigations. (36) This will require court personnel to screen those seeking to enter the courtroom.

--Ex Parte or In Camera Suppression Hearings: In some instances, there can be an ex parte hearing without the defendant. The defense counsel usually appears, but in rare circumstances defense counsel may decide not to attend the hearing. (37)

** Anonymous Witness: An application can be made to allow the witnesses to use a fictitious name or a number during testimony at a hearing. This application is typically made in hearings on search warrants, where the probable cause was based on the testimony of a confidential informant. Some information about the witness will have to be turned over the defense so they have an opportunity to cross-examine.

** Police and Other Witnesses: If the court issues a protective order to restrict the disclosure of the witness's name and pedigree, the protective order should also include a provision that similarly restricts the testimony of others from revealing the witness's identity. Even if the witness does not testify personally, a request can be made for other witnesses, such as police officers, to only refer to the witness using a fictitious name. (38) This restriction would limit the defense cross-examination regarding the pedigree or gender of the endangered witness.

** Sealing of Hearing Transcript: Request sealing of the hearing transcript as necessary, or, alternatively, request that the transcript be only reviewed by the attorney, not defendant or other third parties. (39)

--Note: A request can be made after trial for the release of a witness's transcript, including Freedom of Information requests. This may make it more urgent to take steps to protect the witness's identity in the transcript.

Trial

* Motions in Limine: Pursuant to discovery rules, prosecutors must disclose witness lists, as well as other relevant documents about the witness, to defense counsel. The timing of the disclosure differs depending on statutes and tradition. If there are concerns about witness intimidation, however, various in limine motions can be made to protect the witness.

** Protective Orders: Motions for protective orders...