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Witness Intimidation Prosecuting the case Without the Victim

IACP First Line Supervisor’s Training

The IACP’s National Law Enforcement Supervisor Training

on Violence Against Women is an unprecedented

opportunity for individuals who hold primary responsibility

for overseeing first responders to explore current

approaches for responding to and investigating the crimes

of violence against women, specifically domestic violence,

sexual assault, stalking, and human trafficking. The training

is not only designed to increase understanding of these

crimes, but will instill mentoring, training, and leadership

skills.

For more information, please contact:

1-800-THE-IACP ext. 807 www.theiacp.org

Victims often describe behaviors of witness intimidation exhibited

by the offender.  The behaviors in isolation may not directly

appear as witness intimidation, but overtime a history of behaviors

have occurred.   This information can be valuable in the

prosecution of the case, providing it is passed on to the

prosecutor.  This webinar will provide information and guidance

on how to identify and respond to witness intimidation.

 

“witness intimidation is single biggest hurdle” for prosecutors and law enforcement in numerous crime areas. Former President of the National District Attorney’s Association testimony, 2005 before the United States Senate Judiciary Committee.

In Brooklyn, New York, witnesses that overcame the fear of intimidation to attend court and testify took party in a recent study where 36% witnesses reported direct intimidation, and an additional 57% experiencing other intimidation fear retaliation from one jurisdiction alone.

Nationally prosecutors report that witness intimidation plays a role in 75% to 100% of violent crimes committed in gang controlled neighborhoods and is near universal in all cases of domestic violence and other areas of abuse. Victim and Witness Intimidation: New Developments and Emerging Responses, October 1995 NIJ.

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www.nccourts.org/Ci.zens/CPrograms/Vic.ms?/ocuments/DVBestPrac.cesGuide.pdf h=p://www.cops.usdoj.gov/files/Publica.ons/e07063407.pdf

h=ps://www.ncjrs.gov/pdffiles/wi.n.m.pdf  Pennsylvania  Commission  on  Crime  and    Delinquency    h5p://www.pccd.state.pa.us/portal/server.pt/community/publica=ons_reports/19702  

“A victim of domestic violence calls the crisis line for the first time on average after the fifth assault”. “A victim of domestic violence calls the crisis line for the first time on average after the fifth assault”.

NASHVILLE, TENNESSEE YWCA CRISIS LINE

The investigating officer needs to build a contextual picture of the crime

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Police Officers Frustrations About Handling Domestic Violence Calls

u  Frustration with:

u  Victims

u  Courts

u  Police Organization

u  Negotiating Legal Factors

u  Complexity of Family Issues

u  RICHARD R. JOHNSON - University of Cincinnati – The Police Journal 2004

Police Officers Frustrations About Handling Domestic Violence Calls

u  Victims who are uncooperative and fail to prosecute are the biggest frustration.

u  Dealing with uncooperative victims.

u  Lack of victims willing to sign a complaint.

u  Victims telling us about incidents that have nothing to do with what is happening right now.

u  Victims who later recant their statements.

u  Victims that don’t follow through with charges or don’t want to file a complaint at all.

u  RICHARD R. JOHNSON - University of Cincinnati – The Police Journal 2004

Historical

Witness intimidation is as old as the right of confronting witnesses

Witness intimidation

Like the right to confront witnesses, the recognition that witness intimidation is wrong and unjust also predates the time of Christ

See, e.g., the Code of Laws promulgated by Hammurabi,

the King of Babylon, 2285-2242 BC

Confrontation Origins

u  The right to confront a witness in a criminal case dates back to the time of Christ and earlier. E.g., in the Acts of the Apostles 25:16, the Roman governor Festus discussed the fate of Paul as a prisoner:

u “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges”

Confrontation Origins

u  The 6th Amendment of our Constitution adopted the right of confrontation as it existed via the Magna Carta of England, issued in 1215:

u  “No bailiff is henceforth to put any man on his open law or on oath simply by virtue of his spoken word, without reliable witnesses being produced for the same”

“Magna Carta Translation,” Featured Documents, National

Archives & Records Administration, http://www.archives.gov/exhibits/featured_documents/magna_carta/translation.html

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Constitution

u  The 6th Amendment to the United States Constitution provides: u “In all criminal prosecutions, the accused

shall enjoy the right … to be confronted with the witnesses against him ....”

Constitution

“The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert his constitutional right has been violated.”

Reynolds v. U.S., 98 U.S. 145 (1878)

Case examples

u  Reynolds v. U.S. (1878) – bigamy

u  U.S. v. Thevis (5th Cir. 1982) – RICO

u  Steele v. Taylor (6th Cir. 1982) – cold case homicide

u  People v. Pappalardo (NY 1991) – homicide

u  People v. Geraci (N.Y. 1995) – bar fight

u  Devonshire v. U.S. (DC App.1997) – robbery

u  State v. Hallum (Iowa 2000) – rape-homicide

u  Crawford v. Washington (2004) – attempted homicide

u  U.S. v. Montague (10th Cir. 2005) – felon in possession of firearm

u  Giles v. California (2008) – DV-homicide

Significantly, in that portion of Justice Scalia’s opinion in Giles supported by a clear majority of the justices, the Supreme Court left open

the possibility that a defendant’s intention to prevent testimony might be inferred from the surrounding circumstances, such as in a case

of ongoing domestic violence:

Giles v. California (2008) – DV-homicide

Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution--rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.

Giles v. California (2008) – DV-homicide

CRAWFORD v. WASHINGTON

u  Sixth Amendment u  U.S. Constitution Confrontation Clause u  “[I]n all criminal prosecutions, the

accused shall enjoy the right … to be confronted with the witnesses against him”

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Crawford v. Washington 541 U.S. 36 (2004)

u Not a domestic violence case. u Petitioner charged with assault and

attempted murder. He claimed self-defense. u State introduced a recorded statement of

petitioner’s wife made during police interrogation, as evidence that the stabbing was not in self-defense.

Crawford v. Washington

u argued that admitting the evidence would violate his right of confrontation under 6th Amendment.

u Trial court admitted the statement because it had “sufficient indicia of reliability.” Petitioner invoked marital privilege, preventing her from testifying at trial.

u State Supreme Court upheld the conviction, deeming the statement reliable.

Crawford v. Washington Majority opinion

In a majority opinion by Justice Scalia, the Court held that a

defendant only forfeited his confrontation rights when he intended

to procure the unavailability of the witness. The Court examined the

history of the common law forfeiture right, finding that every case

since 1666 required that the defendant intend to make the witness

unavailable for trial. The Court noted that subsequent history also still

required an intent element, with only a few modern exceptions.[3]

Davis v. Washington 547 U.S. 813 (2006)

u  Domestic violence case

u  Victim called 911, identified defendant as assailant, and described assault to 911 operator

u  Victim did not testify at defendant’s trial, but the trial court admitted the 911 tape

u  State Supreme Court affirmed, holding 911 call not testimonial and not the equivalent of an in-custody, police interrogation

u  Also held purpose of 911 call is to call for help, not bear witness, and therefore is not testimonial

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FBW DOCTRINE Davis v. Washington

“We reiterate what we said in Crawford: that ‘the rule of forfeiture by wrongdoing ... extinguishes confrontation claims on essentially equitable grounds.’ . . . That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.”

547 U.S. 813, 833

Michigan v. Bryant 131 S.CT. 1143 (2011) u  Police responded to a radio dispatch of a man shot

u  Police found victim with gunshot to abdomen in great pain/difficulty speaking

u  Police asked:

u  What happened?

u  Who shot you?

u  Where did shooting occur?

u  Victim identified shooter and circumstances of shooting

u  Victim died at hospital within hours

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Michigan v. Bryant

(1) Reaffirmed the “primary purpose” test from Davis

(2) Directed the use of an objective evaluation of the case circumstances to determine the primary purpose of the statement

(3) Clarified that the existence of an ongoing emergency is among the most important factors to consider, but not the only factor

(4) Explained that the statements and actions of both the declarant and the interrogators provide objective evidence of the primary purpose of the interrogation courthouse

Forfeiture by Wrongdoing

Under the forfeiture exception to the confrontation rule, a defendant may not complain about the inability to confront and cross-examine a witness whose absence is a result of the defendant’s own wrongful act.

Forfeiture by Wrongdoing

The forfeiture by wrongdoing exception survives Crawford because it is based not on the reliability of the declarant’s statement, but rather on the equitable consequences of the defendant’s misconduct.

ELEMENTS OF FBW

FRE 804(b)(6) A statement offered against a party if the unavailability of the witness is due to the wrongdoing of the party for the purpose of preventing the witness from attending or testifying

Forfeiture by Wrongdoing

u The Fourth Circuit, in concert with the other federal courts of appeals, has held that in order for a court to apply a forfeiture under FRE 804(b)(6), it must find that

u “(1) the defendant engaged or acquiesced in wrongdoing (2) that was intended to render the declarant unavailable as a witness and (3) that did, in fact, render the declarant unavailable as a witness.”

Court Officer Response To Witness Intimidation

Justice requires searching for truth in an environment that respects the rights of all. Truth cannot be spoken in fear. The courthouse is supposed to be a place where wrongs will be redressed without fear or recrimination - an environment in which truth can be spoken. Witness intimidation strikes at the heart of justice, crippling the ability to function fairly, decently and with integrity. It cannot be tolerated.

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1100 H Street NW Suite 310 Washington, DC 20005 www.aequitasresources.org 202-558-0040

The investigating officer needs to build a contextual picture of the crime

Context is Everything

u  The Criminal Justice System is by design and necessity, incident focused u What is the intent of the offender?

u What is the meaning of the act to the victim?

u What is the effect of the violence on the victim? u What is the context of any given act of violence?

u Consider the particulars, how much violence, coercion or intimidation accompanying the violence

IACP Supervisor’s Domestic Violence Checklist

Basic Checklist

•  Who -- suspects, witnesses, victims •  What -- violations & charges •  When -- date, time, weather and light conditions •  Where -- exact spot of crime and surrounding

area, where victims and witnesses came from, where they were, where they were planning to go, where they went

•  How -- brief description and detailed reports of crime

Section Three, Handout #56

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Case Preparation and Prosecution

Case Begins With Arrest

•  Practice and preparation assists officers

•  Think court from beginning

•  Find the crime scene

•  Document the case

•  Collect data as if going to trial

Section Three, Handout #55

Victim/Witness and Officers’ Report Checklist

Victim/Witness Checklist •  Victims •  Witnesses •  Reports on what victims and witnesses said and,

if possible, written statements •  Names, addresses & phone numbers (work &

home) •  Officer’s Report Checklist •  from prosecuting officer and any officer who

had anything to do with the case

Section Three, Handout #57

Effectiveness on Day of Trial

•  Pre-trial preparation depends on not only the evidence, but also the presentation of witnesses, including police officers. Professional presentation can give additional credibility to a police officer’s case. What follows are some guidelines for courtroom presentation that officers can review before trial.

•  Show up early – Let the prosecutor know you’re there, as he or she may have some last minute questions or problems.

•  Be prepared -- Read police report and study it so that you know your case and have all available information and evidence ready.

•  Look professional – Be exceptionally neat, like for a job interview. Don’t wear items that flash or distract.

Section Three, Handout #62

Witness Intimidation/Obstruction of Justice?

Jane and John Brown

u  9-30-2012 1735 –Central dispatch received two 911 calls from a residence at 5612 40th Avenue South in Hometown.

u  First call was a hang-up. During the call back a child said it was a mistake – his younger brother called

u  Five minutes later a second 911call is made from the home. A young girl said her name was Little Sister.

u  The dispatcher asked was it happened right now, the girl said “Well , he, no, he breaks-he’s walking around and breaking things “

u  She said, “I’m scared”

u  An older brother gets on the phone and says, there was “no problem”

Jane and John Brown

u  The dispatcher requested to speak to an adult. An adult male said he and his wife where having a “a major fight” and “I’m furious”

u  He added, “My daughter called you but everything is fine. There was no hitting”

u  The wife gets on the line and says, “He’s a little out of control but don’t send anybody, it’s fine, it’s fine”. “Were just packing to move and there is some stress. Please don’t send the police”

u  The dispatcher informed her that officers were on the way

u  Officer Erin Smith and Pamela Patterson responded

u  They observed John Brown standing on the front porch with his arms folded

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Jane Brown (injuries)

Jane Brown (injuries) Photos (scene)

Photos (Scene) Photos (Scene)

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Officer’s Supplemental

After returning to the police station, I, Officer Peterson received a phone call from Mrs. Brown, who said, “Please don’t write a report. It will just make things worse.”

When I asked what she meant, she said, “You know what I mean. You saw my face. Do I really have to spell it out for you? It will get worse if you make a report or put charges on him. If he finds out I spoke to you , I’m the one who will pay, not him.”

Officer’s Supplemental

On October 1, 2012, I, D.A. Inv. Julie Jones, offered to speak to Mrs. Brown when she called for the D.A. and found he wasn’t available. She said, “Tell him not to put charges on my husband. That will only make things worse.”

I asked her to tell me more about her concerns and she said, “I’d like to, but I can’t – not if I want to make it out of here with me and my kids in one piece. Tell him to look at the pictures if he wants to know what happened. Please don’t make me or my kids testify.”

Neighbor u On more than 5 occasions has heard a “man yelling, a

woman crying and loud noises, like banging” coming from the Brown’s residence.

u At the time of this incident, heard loud voices coming from the Brown driveway and looked out to see John and Jane struggling over a box.

u Couldn’t make out what John and Jane were saying during the struggle but has a video security system with a camera pointed in that direction and believes it could have captured the struggle over the box.

Grandmother u Interviewee is reluctant to speak with you. She is not

permitted to visit the Brown residence, nor are Jane and the children permitted to visit hers.

u Is only able to see Jane and the children by arranging to shop for groceries at the same time at the same store. During those times, she has seen bruises on Jane’s arms “a lot” and once saw Jane with a swollen lip.

u When on the phone with Jane, she has overheard John threaten to beat Jane if she didn’t get off the phone.

Detective

u Has a policy of reviewing all non-arrest police reports of domestic violence violence calls. Reviewed the 2010 police report.

u Asked the office victim advocate to call Jane Brown. u The advocate called Jane Brown and after ascertaining it

was safe to talk, asked several questions related to Jane’s safety and fear.

u Jane started answering questions – “There are times when I don’t feel safe” and “I’m scared,” but then interrupted herself: “It will only make it worse if I do this – please don’t call again.”

Jail call to Jane Brown - Transcript 1

Jane: Don’t get upset. John: Yeah, all right, I’m not going to get upset, all right? What I’m trying to make sure of is this: whatever you do, even if you don’t speak to my lawyer, do not speak to the D.A. All right? Jane: But I’m scared. If they put me in trouble now, what I am going to do? John: He won’t do that. I’m going to make sure of that.

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Jail call to Jane Brown - Transcript 2

John: Whatever you do, do not tell the district attorney that we’ve been talking.

Jane: I know.

John: He might trick you: “Has he pushed you to do this? Is he threatening you to do this?” You know? Just stick with the story. Just tell him things like this: “It was just a misunderstanding” and “I love him.”

Jail call to little sister - Transcript

John: When the lady asks you about Daddy, tell her you that you want to see your daddy – you miss him. All right?

Little Sister: I know. John: If she asks you anything about Daddy, say “My daddy’s a good daddy and I love him.” If she asks you about your daddy fighting with your mommy, say “No, I don’t remember.” Because if you tell her stuff, she’s going to use it against me to go to jail. So you tell her “No, I love my daddy; I don’t remember anything.” Okay?

John Brown - Criminal History

There is a 911 record and police report of a hang-up call from this residence in 2010. u When police arrived, Jane Brown had a red welt on the side

of her head but wouldn’t say anything. u John Brown and the children said they didn’t know what

happened. u Police did not make an arrest but did ask John Brown to

leave for the evening, which he did. u Police left domestic violence resource information with Jane

Brown.

PREVENTING WITNESS FROM GIVING TESTIMONY Every person who willfully prevents any person from giving testimony who has been duly summoned or subpoenaed or endorsed on the criminal information or juvenile petition as a witness, or who makes a report of abuse or neglect . . . or who is a witness to any reported crime, or threatens or procures physical or mental harm through force or fear with the intent to prevent any witness from appearing in court to give his testimony, or to alter his testimony is, upon conviction, guilty of a felony . . . .

Sec. 21-455(A), Okla. Stats.

Making the Law Keep its Promise

It is our responsibility to build effective cases, especially in misdemeanor assaults, regardless of victim participation.

Thank You