SUPPORT LEARNING OBJECTIVES WITNESS INTIMIDATION OF DOMESTIC VIOLENCE SURVIVORS. How Advocates Can Help?

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1 WITNESS INTIMIDATION OF DOMESTIC VIOLENCE SURVIVORS How Advocates Can Help? SUPPORT This project was supported by Grant No TA-AX-K024 awarded by the U.S. Department of Justice, Office on Violence Against Women (OVW). The opinions, findings, conclusions, and recommendations expressed in this presentation are those of the authors and do not necessarily reflect the views of the OVW. LEARNING OBJECTIVES At the conclusion of this presentation, participants will be better able to: Identify signs of a batterer s undue influence over a victim. Identify and document victim intimidation and obstruction of justice. Identify, build and employ strategies to hold intimidators accountable.

2 EVIDENCE-BASED PROSECUTION RIGHT OF CONFRONTATION The 6th Amendment gives a defendant the right to face his accuser in court. Before the 1980s, when domestic violence victims failed to appear and testify at trial, prosecutors didn t regularly advance legal theories to introduce victims out-of-court statements when defendants complained this evidence violated their 6th Amendment right of confrontation. RIGHT OF CONFRONTATION Prosecutors began using statements from victims that police obtained at the crime scene, and proceeded to trial without the victim s incourt testimony. Prosecutors argued that on-scene statements to police, describing the assault shortly after it occurred, while the victim was still under the emotional stress of the trauma, were so trustworthy and firmly rooted in American law that they inherently satisfied the defendant s right of confrontation.

3 PRE-CRAWFORD LAW The United States Supreme Court agreed in Ohio v. Roberts, 448 U.S. 56 (1980). Hearsay statements required a showing of: a firmly rooted hearsay exception or particularized guarantees of trustworthiness. Reliability of hearsay statements are to be determined by the trial court. FIRMLY-ROOTED HEARSAY EXCEPTIONS Present sense impression Excited utterances Then existing mental, emotional or physical condition EVIDENCE-BASED PROSECUTION Old evidence-based prosecution reconciled mandatory arrest statutes and no-drop prosecution policies with the reality of domestic violence victims recantation and non-cooperation.

4 EVIDENCE-BASED PROSECUTION But, old evidence-based prosecution didn t get at the reason many victims recanted or didn t cooperate with the prosecution witness intimidation. Consequently, old evidence-based prosecution strategies did not utilize the tool that witness intimidation makes available forfeiture by wrongdoing. WITNESS INTIMIDATION Definitions, Examples, and the Scope of Problem QUESTION What is witness intimidation? May be called witness tampering, witness coercion, or witness dissuasion in your jurisdiction Can you give a brief example from your work?

5 RESEARCH AND PROFESSIONAL LITERATURE Urban CJS professionals said more victims were intimidated in DV cases each year than in gang or drug crime. K. Healey, Victim and Witness Intimidation, Research in Action, National Institute of Justice, October 1995, DV victims appear at elevated risk for retaliation, especially when living with or economically dependent on the offender, or in contact with the offender because of shared parenting. Buzawa & Buzawa, 1996 RESEARCH AND PROFESSIONAL LITERATURE Witness intimidation is most associated with organized crime and domestic violence Kelly Dedel, Witness Intimidation, Office of Community Oriented Policing Services, 2006, RESEARCH AND PROFESSIONAL LITERATURE Intimidation may involve tactics including physical violence, explicit or implicit threats of physical violence, property damage, and courtroom intimidation; And in DV cases, also economic threats, and threats concerning child custody and deportation. K. Healey, Victim and Witness Intimidation, Research in Action, National Institute of Justice, October 1995,

6 RESEARCH AND PROFESSIONAL LITERATURE Offenders may: Confront witnesses verbally Send notes and letters, or make nuisance calls Park or loiter outside the homes of witnesses Damage witnesses houses or property Threaten witnesses children, spouses, parents, or other family members Assault or murder witnesses or their family Kelly Dedel, Witness Intimidation, Office of Community Oriented Policing Services, July 2006, accessed December 22, 2011, RESEARCH AND PROFESSIONAL LITERATURE Most explicit acts of intimidation take place where police exert little control: at the witness s home, school or work; or while the witness is running errands or socializing. Fyfe & McKay, 2000 But witnesses also report being intimidated at the crime scene, while at the police station making a statement and while in the courthouse waiting to testify. Some report being intimidated while on the witness stand. Kelly Dedel, Witness Intimidation, Office of Community Oriented Policing Services, July 2006, accessed December 22, 2011, RESEARCH AND PROFESSIONAL LITERATURE Four (4) factors increase chances victims or witnesses will be intimidated: The violent nature of the initial crime. Previous personal connection to defendant. Geographic proximity to the defendant. Cultural vulnerability i.e., membership in easily victimized group, such as the elderly, children, or recent or illegal immigrants K. Healey, Victim and Witness Intimidation, Research in Action, National Institute of Justice, October 1995,

7 RESEARCH AND PROFESSIONAL LITERATURE Children and females may be at greater risk of intimidation than adults and males. Elliott, 1998 RESEARCH AND PROFESSIONAL LITERATURE Timing of intimidation: Most dangerous time for a victim or witness is between arrest and trial. Trial delays experienced in most jurisdictions allow ample opportunity for intimidation. Second most dangerous period for victims and witnesses is during the trial itself. K. Healey, Victim and Witness Intimidation, Research in Action, National Institute of Justice, October 1995, RESEARCH AND PROFESSIONAL LITERATURE Small studies and surveys of police & prosecutors suggest intimidation is pervasive and increasing: 36% of witnesses in criminal courts in Bronx County, New York revealed being directly threatened; of those who hadn t, 57 % feared reprisals Community-oriented Policing Services, Witness Intimidation, 2006 Milwaukee Co. ADA Dedinsky: % of the time when we were able to locate phone calls, we d find criminal behavior. Charges ranged from bribery to intimidation Vera Institute of Justice, Prosecuting Witness Tampering from Behind Bars, 2006

8 RESEARCH AND PROFESSIONAL LITERATURE Small studies and surveys of police & prosecutors suggest intimidation is pervasive and increasing: After listening to 3 hours of jails calls each for 17 men in custody on DV charges who called their victims, researchers observed: Perpetrators are not threatening the victim, but are using more sophisticated emotional appeals designed to minimize their actions and gain the sympathy of the victim. A. Bonomi, R. Gangamma, C. Locke, H. Katafiasz & D. Martin, Meet Me at the Hill Where We Used to Park, Social Science & Medicine, 73: , QUESTION In all the examples discussed so far, what crimes were committed? HISTORY The Right to Confront Witnesses and Witness Intimidation

9 HISTORIC PROBLEM Witness intimidation is as old as the right of confronting witnesses. CONFRONTATION ORIGINS 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: It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-toface, and has been given a chance to defend himself against the charges. CONFRONTATION ORIGINS The 6th Amendment of our Constitution adopted the right of confrontation as it existed via the Magna Carta of England, issued in 1215: 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, translation.html

10 CONSTITUTION The 6th Amendment to the United States Constitution provides: In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him... WITNESS INTIMIDATION Like the right to confront witnesses, the recognition that witness intimidation is wrong and unjust also predates the time of Christ. See, for example, the Code of Laws promulgated by Hammurabi, the King of Babylon, B.C. WITNESS INTIMIDATION 3. If a man, in a case pending judgment, has uttered threats against the witnesses, or has not justified the word that he has spoken, if that case be a capital suit, that man shall be put to death. 4. If he has offered corn or money to the witnesses, he shall himself bear the sentence of that case. The Oldest Code of Laws in the World, by Hammurabi, King of Babylon; translated by C.H.W. Johns, Queens College, Cambridge, 1904; transcribed by Project Gutenberg, 2005, h.htm

11 FOUNDATIONS IN PUBLISHED LAW The accused has a right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. Lord Morley s Case, 6 How. St. Trls. 769 (H.L. 1666) PROBLEM Only unsuccessful intimidation ever came to the attention of police or prosecutors. K. Healey, Victim and Witness Intimidation, Research in Action, National Institute of Justice, October 1995, page 2, PROBLEM If offender accountability rests on victim testimony, the environment is ripe for intimidation; the victim is also a target. 6th Amendment: Every defendant shall enjoy the right to confront witnesses against him.... If the prosecution fails to produce a key witness whose testimony is not otherwise admissible at trial, the prosecution is often dismissed.

12 PROBLEM Unfortunately, the person most likely to have evidence of intimidation, bribery, subornation of perjury, etc. (i.e., the victim) has been the least informed on recognizing it as evidence and reporting it. Subsequently, many victims put aside or throw away evidence of intimidation. PROBLEM Media focus on witness intimidation in gang crime has set the stage for unawareness of witness intimidation in violence against women crimes. PROBLEM Witness protection or relocation programs used to isolate gang crime witnesses from intimidation are: Expensive. Only used for a limited number of victims and witnesses. Not a guarantee victims or witnesses will testify. Life-changing in impact on victims and witnesses.

13 PROBLEM These gaps in our communities responses are places that victims fall through and offenders crawl through. from a role play on realities of the justice system, created by Graham Barnes for the National Training Project of Domestic Abuse Intervention Programs, Duluth, MN CHARGING What Conduct Is Being Charged as Witness Intimidation? CONDUCT Following probation agent (Maryland, 2012) Disabling witness s car (Indiana, 2011) Convincing witness to sign affidavit of gun ownership (New Orleans, 2011) Using civil suit to coerce victim (Michigan, 2010) Blocking victim s car (New Mexico, 2010) Making embarrassing photos of victim (Washington, 2012) Killing witness s livestock (Michigan, 2010).

14 CONDUCT Making throat-slitting motion to witness (Florida, 2010) Accepting bribe to help man make false confession (New Jersey, 2010) Volume of calls (212) itself was witness-tampering (Missouri, 2010) Having 3rd party deliver notes to witness telling witness what to say (Pennsylvania, 2010) CONDUCT Offering cash and hotel room to witness (Florida, 2010) Offering child custody and payment of fines to witness (Pennsylvania, 2010) Offering crack to 3rd party to deliver note to witness (Maryland, 2010) Passing note to witness in courtroom (Pennsylvania, 2010) FORFEITURE BY WRONGDOING

15 CASE EXAMPLES The forfeiture by wrongdoing tenet has existed throughout U.S. law and been applied/accepted in many kinds of cases: Reynolds v. United States, (1878) bigamy U.S. v. Thevis, (5th Cir. 1982) RICO Steele v. Taylor, (6th Cir. 1982) cold case homicide People v. Pappalardo, (NY 1991) - homicide People v. Geraci, (N.Y. 1995) bar fight Devonshire v. U.S., (DC App.1997) robbery CASE EXAMPLES State v. Hallum, (Iowa 2000) rape/homicide Crawford v. Washington, (2004) attempted homicide U.S. v. Montague, (10th Cir. 2005) felon in possession of firearm Giles v. California, (2008) DV homicide 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 the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated. Reynolds v. United States, 98 U.S. 145 (1878)

16 FORFEITURE Defendant may not assert a right of confrontation or hearsay objections where he has procured unavailability of the witness by violence, threats or chicanery. People v. Geraci, 85 N.Y. 2nd 359 (N.Y. 1995) PUBLIC POLICY to permit such a subversion of a criminal prosecution would be contrary to public policy, common sense, and the underlying purpose of the Confrontation Clause and make a mockery of the system of justice that the right was designed to protect. U.S. v. Thevis, 665 F.2d 616 (5th Cir. 1982) APPLICATION OF FORFEITURE DOCTRINE [A]ll federal and state courts that have addressed this issue, that we could find, have concluded that when a defendant procures a witness's unavailability for trial with the purpose of preventing the witness from testifying, the defendant waives his rights under the confrontation clause to object to the admission of the absent witnesses hearsay statements. Devonshire v. United States, 691 A2d 165 (DC App.1997)

17 WHAT COMPRISES WRONGDOING? Significant influence, including influence and control Steele v. Taylor, 684 F2d 1193 (6th Cir. 1982) WHAT COMPRISES WRONGDOING? Knowledge, complicity, planning or in any other way People v. Pappalardo, 152 Misc 2d 364 (NY 1991) Evidence of past relationship relevant, but may not be enough by itself. U.S. v. Montague, 421 F3d 1099 (10th Cir. 2005) FORFEITURE AND DV Justice Scalia: Acts of domestic violence are often intended to dissuade the victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecution. See Giles, 128 S.Ct. at 2693

18 FORFEITURE AND DV 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. See Giles, 128 S.Ct. at 2693 FORFEITURE AND DV 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. See Giles, 128 S.Ct. at 2693 COORDINATED COMMUNITY RESPONSE

19 COORDINATED COMMUNITY RESPONSE Provide training and resources for all criminal justice professionals so that they: Recognize intimidation as a crime, Preserve intimidation evidence, Report the intimidation, and Educate victims to do the same, During every domestic violence contact COORDINATED COMMUNITY RESPONSE Training should include all who come into contact with victims: Community-based & system-attached advocates 911 staff Law enforcement officers Medical practitioners Prosecutors Jail staff Judges Probation officers Media (television news, print & on-line news, radio) CAUTION Victims are not investigators. Encouraging victims to obtain evidence from offenders places them at risk, and could violate defendants right to counsel by turning victims into police agents. Victims should be provided guidance about recognizing, preserving and reporting intimidation: If the defendant calls, hang up and call police. If the defendant calls back, don t answer but save any messages. If he shows up, get to a safe place and call 911.

20 PROMISING PRACTICES EXAMPLES Skills (training 911 staff what to do when the abuser gets on the phone) Documentation (including a question re intimidation during police investigation and report-writing) Deterrence (having court spectators check in with identification) Taking away the tools (post cards versus paper inside envelopes in jail) Monitoring (visits by pretrial or probation officers) Public message (justice system websites announcing intimidation convictions)