IMPROVING THE JUSTICE SYSTEM RESPONSE TO WITNESS INTIMIDATION SUPPORT This project was supported by Grant No. 2009-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 author(s) and do not necessarily reflect the views of OVW. FAIR USE This presentation includes the creative work of others. This property is being used by permission or under claim of fair use (17 USC 107). This presentation was created pursuant to fair use guidelines and further use or distribution is prohibited. 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 1
WHAT IS WITNESS INTIMIDATION? Urban criminal justice system professionals said more victims were intimidated in domestic violence cases each year than in gang or drug crime. KERRY HEALEY, NATIONAL INSTITUTE OF JUSTICE, RESEARCH IN ACTION, VICTIM AND WITNESS INTIMIDATION: NEW DEVELOPMENTS AND EMERGING RESPONSES (Oct. 1995) https://www.ncjrs.gov/pdffiles/witintim.pdf Domestic violence 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. DO ARRESTS AND RESTRAINING ORDERS WORK? (Buzawa & Buzawa eds., 1996) Witness intimidation is most associated with organized crime and domestic violence KELLY DEDEL, OFFICE OF COMMUNITY ORIENTED POLICING SERVICES, WITNESS INTIMIDATION (2006) http://www.cops.usdoj.gov/files/ric/publications/e07063407.pdf 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 2
Intimidation may involve tactics including physical violence, explicit or implicit threats of physical violence, property damage, and courtroom intimidation; And in domestic violence cases, also economic threats, and threats concerning child custody and deportation. KERRY HEALEY, NATIONAL INSTITUTE OF JUSTICE, RESEARCH IN ACTION, VICTIM AND WITNESS INTIMIDATION: NEW DEVELOPMENTS AND EMERGING RESPONSES (Oct. 1995) https://www.ncjrs.gov/pdffiles/witintim.pdf 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, OFFICE OF COMMUNITY ORIENTED POLICING SERVICES, WITNESS INTIMIDATION (2006) http://www.cops.usdoj.gov/files/ric/publications/e07063407.pd VIDEO CLIP 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 3
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. Nicholas Fyfe & Heather McKay, Desperately Seeking Safety, 40 (4) BRITISH J. OF CRIMINOLOGY, 675-91 (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, OFFICE OF COMMUNITY ORIENTED POLICING SERVICES, WITNESS INTIMIDATION (2006) http://www.cops.usdoj.gov/files/ric/publications/e07063407.pdf VIDEO CLIP FACTORS THAT INCREASE THE CHANCES OF INTIMIDATION 1. The violent nature of the initial crime 2. Previous personal connection to defendant 3. Geographic proximity to the defendant 4. Cultural vulnerability i.e., membership in easily victimized group, such as the elderly, children, or recent or illegal immigrants. KERRY HEALEY, NATIONAL INSTITUTE OF JUSTICE, RESEARCH IN ACTION, VICTIM AND WITNESS INTIMIDATION: NEW DEVELOPMENTS AND EMERGING RESPONSES (Oct. 1995) https://www.ncjrs.gov/pdffiles/witintim.pdf 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 4
VIDEO CLIP Children and females may be at greater risk of intimidation than adults and males. ROBIN ELLIOT, VULNERABLE AND INTIMIDATED WITNESSES: A REVIEW OF THE LITERATURE (1998), http://www.popcenter.org/problems/witness_intimidation/pdfs/elliot_1998.pdf. THE MOST DANGEROUS TIME 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 KERRY HEALEY, NATIONAL INSTITUTE OF JUSTICE, RESEARCH IN ACTION, VICTIM AND WITNESS INTIMIDATION: NEW DEVELOPMENTS AND EMERGING RESPONSES (Oct. 1995) https://www.ncjrs.gov/pdffiles/witintim.pdf 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 5
PERVASIVENESS 36% of witnesses in criminal courts in Bronx County, New York revealed being directly threatened; of those who were not, 57% feared reprisals KELLY DEDEL, OFFICE OF COMMUNITY ORIENTED POLICING SERVICES, WITNESS INTIMIDATION (2006) http://www.cops.usdoj.gov/files/ric/publications/e07063407.pdf Milwaukee County Assistant District Attorney Dedinsky: 80-90 % 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) VIDEO CLIP EMOTIONAL APPEALS 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. Bonomi, R. Gangamma, C. Locke, H. Katafiasz & D. Martin, Meet Me at the Hill Where We Used to Park, 73 SOCIAL SCIENCE & MEDICINE, 1054-61 (2011) 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 6
VIRGINIA WITNESS INTIMIDATION CRIMES VIRGINIA STATUTES Suborning Perjury (18.2-436) Threats of Death or Bodily Injury (18.2-60) Obstructing Justice (18.2-460) Bribing a witness (18.2-441.1) Curse and Abuse (18.2-427) Telephone Harassment (18.2-429) OTHER CRIMINAL OFFENSES Attempted murder Assault Menacing Terroristic threatening Stalking Criminal mischief Harassment 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 7
HISTORIC PROBLEM Witness intimidation is as old as the right of confronting witnesses 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 PROBLEM Only unsuccessful intimidation ever came to the attention of police or prosecutors. KERRY HEALEY, NATIONAL INSTITUTE OF JUSTICE, RESEARCH IN ACTION, VICTIM AND WITNESS INTIMIDATION: NEW DEVELOPMENTS AND EMERGING RESPONSES (Oct. 1995) https://www.ncjrs.gov/pdffiles/witintim.pdf 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 8
PROBLEM Unfortunately, the person most likely to have evidence of intimidation (i.e., the victim) has been the least informed on recognizing it as evidence and reporting it Consequently, many victims put aside or throw away evidence of intimidation VIDEO CLIP PROBLEM Media focus on witness intimidation in gang cases has set the stage for lack of awareness in violence against women cases 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 9
PROBLEM Witness protection or relocation programs used to isolate 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 for victims and witnesses PROBLEM These gaps in our communities responses are places that victims fall through and offenders crawl through. Excerpt from a role play on the realities of the justice system, created by Graham Barnes for the National Training Project of Domestic Abuse Intervention Programs, Duluth, MN FORFEITURE BY WRONGDOING 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 10
EXCEPTION TO CONFRONTATION 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) 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. United States 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 A.2d 165 (D.C. 1997) 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 11
WHAT COMPRISES WRONGDOING? Knowledge, complicity, planning or in any other way People v. Pappalardo, 152 Misc.2d 364 (N.Y. 1991) Evidence of past relationship relevant, but may not be enough by itself. United States v. Montague, 421 F.3d 1099 (10th Cir. 2005) FORFEITURE AND DOMESTIC VIOLENCE 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. Giles v. California, 128 S.Ct. 2678, 2693 (2008) FORFEITURE AND DOMESTIC VIOLENCE, CONT D 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. Giles, 128 S.Ct. at 2693 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 12
FORFEITURE AND DOMESTIC VIOLENCE, CONT D 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, 128 S.Ct. at 2693 ESTABLISHING FORFEITURE BY WRONGDOING INVALUABLE TOOL Applies to any potential witness who is unavailable Opens the door to any hearsay Testimonial Nontestimonial without standard 803 hearsay exception 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 13
INTENT / PURPOSE Giles v. California, 128 S.Ct. 2678 (2008) Domestic violence related homicide: defendant shot ex-girlfriend Claimed self-defense Prior bad acts (assaults, vandalism) Threats to defendant and new girlfriend Victim charged at him afraid she had something in her hand Closed eyes, fired several shots Did not intend to kill INTENT / PURPOSE, CONT D 3 weeks prior Domestic violence callout Victim crying Made statements about being assaulted, strangled, threatened with knife Statements allowed under FBW based upon intentional act of killing Defendant convicted of 1st Degree Murder Giles, 128 S.Ct. 2678 INTENT / PURPOSE, CONT D Case remanded Not enough evidence that victim was made unavailable due to intentional act of defendant Defendant had to have specific intent to make victim unavailable as a witness when committing the wrongdoing Giles, 128 S.Ct. 2678 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 14
DOMESTIC VIOLENCE HISTORY Forfeiture by wrongdoing can be used by proof of broader intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry Giles, 128 S.Ct. at 2693 DOMESTIC VIOLENCE J. SOUTER [There is no] reason to doubt that the element of intention would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process Giles, 128 S.Ct. at 2699 DOMESTIC VIOLENCE J. SOUTER If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger Giles, 128 S.Ct. at 2699 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 15
VIRGINIA LAW The Court of Appeals discussed what it referred to as the possibility, left open by the United States Supreme Court in Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, (2008), that a defendant's intention to prevent testimony might be inferred from the surrounding circumstances, such as in a case of ongoing domestic violence. Crawford v. Commonwealth, 281 Va. 84 (2011) HEARINGS Burden of Proof: Preponderance of the evidence Evidence: hearsay admissible (call at least one witness) History of abuse Prior charges filed and withdrawn Testimony from bond hearing or prior cases Evidence from police, former prosecutor, family, etc., about victim s fear of defendant and prior cases Anything to show what defendant did to prevent or discourage victim from testifying HEARINGS Evidence supporting prosecutions for forfeiture crimes satisfy the preponderance burden: Tampering with a witness Intimidation of a witness Bribery of a witness Criminal coercion Etc. 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 16
PROVING FBW Burden of proof = PREPONDERANCE OF THE EVIDENCE Davis v. Washington, 547 U.S. 813, 833 (2004) State v. Alvarez-Lopez, 98 P.3d 699, 704 (N.M. 2004) PROVING FBW Preliminary Determinations While rules of evidence generally do not apply in 104 hearings, Va Rule is silent Hearsay allowed Affidavits allowed VA R S CT Rule 2:104 PROVING FBW Intent to make witness unavailable need not be only motive Ohio v. Hand, 107 Ohio. St.3d 378 (2006) U.S. v. Dhinsa, 243 F.3d 635 (C.A.2) (2001) 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 17
PROVING FBW Applies to potential witnesses a formal proceeding need not be under way Ohio v. Hand U.S. v. Houlihan, 92 F.3d 1271 (1st Cir. 1996) Can use unavailable witness hearsay statements themselves Davis v. Washington, 547 U.S. at 833 PROMISING PRACTICES GENERAL Be proactive to try to encourage victim cooperation Working with a CCR to domestic violence increases victim cooperation Provide victims with resources and services that make them feel safe and secure Oppose delays and continuances 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 18
PRELIMINARY HEARING Foster a full and fair opportunity for cross-examination Fight defense attempts to waive Pass discovery before hearing Allow short adjournments if necessary to allow defense reasonable opportunity to prepare Refrain from objections to extent possible OBTAINING AND MAINTAINING EVIDENCE Officers, victim advocates, and prosecutors can ask: Have you talked to anyone else about this incident, either before or after you spoke to the police? Documenting any evidence that establishes or supports that statements are being made in the context of an ongoing emergency. E.g., evidence that establishes excitement may include victim s speech, appearance, or behavior Documenting evidence of intimidation Prepare forfeiture file for potentially intimidated witnesses COORDINATED COMMUNITY RESPONSE (CCR) 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 19
CCR Provide training and resources for justice system professionals so that they: Recognize intimidation as a crime Preserve intimidation evidence Report the intimidation Educate victims to do the same 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 and save any messages. If he shows up, get to a safe place and call 911. 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 20
DOCUMENTATION Police officers in Duluth, MN ask victims if they ve been intimidated, as part of their domestic violence response protocol: How frequently and seriously does he intimidate, threaten or assault you? She said intimidation occurs daily, mostly with notes. When her husband is intoxicated, his phone calls to her are continuous. Threats don't occur, though her husband threatens to leave. As far as assaults, they hadn't occurred in a long time. He was arrested for DV and had an OFP against him in the '90's, which alleviated the assaults for a while. DETECTION Knox County Detention Facility s phone system will require voice recognition beginning January 2012. Inmates will be required to create a voice record when they are booked in that will then be used by the phone system to verify the identity of the inmate making the call. Inmates will no longer be able to avoid having their calls monitored by switching PIN numbers, as the need for PINs will be eliminated. RHONDA MARTINSON, ET AL.,, IMPROVING THE JUSTICE SYSTEM RESPONSE TO WITNESS INTIMIDATION: PILOT PROJECT REPORT, KNOXVILLE, TENNESSEE (2014) TAKING AWAY THE TOOLS In an effort to cut down on contraband and witness intimidation, the Yakima County jail will require all inmate mail to be written on postcards. Ross Courtney, Yakima Jail Bans Envelopes in Mail, YAKIMA HERALD, October 5, 2010, http://www.yakima-herald.com/stories/2010/10/05/jail-mail-inmates-to-be-limited-to-postcards 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 21
PROTECTION [In cases where intimidation is suspected or likely, such as gang cases] Witnesses addresses and other identifying information should be redacted before... discovery items are turned over to the defense. Some states laws prohibit a defense attorney from giving witness information to anyone other than a defense investigator. It is good practice to get a court order prohibiting the defense attorney from disclosing witness identification information. J. ANDERSON, NATIONAL GANG CENTER BULLETIN, GANG-RELATED WITNESS INTIMIDATION 5 (2007) DETERRENCE See, e.g., Thomas Finneran and Todd Feinburg, Checkin Requirement Could Curb Witness Intimidation, BOSTONHERALD.COM, October 4, 2010, http://bostonherald.com/news_opinion/ local_politics/2010/10/ charlie_baker_check_in_requirement_could_curb_wit ness. See, e.g., Kimball Perry, Judges Consider Banning Cell Phones in Court, CINCINNATI.COM, July 4, 2010, http://news.cincinnati.com/article/20100704/ NEWS010702/7050304/Judges-consider-banningcell-phones-court MESSAGE Prohibition against witness intimidation a condition of protective order L.A. Carwash Workers Win Major Victory to End Worker Abuse, L.A. UNION, Aug. 17, 2011, http://launionaflcio.org/fullstory/?id=1376 Announcement of witness intimidation arrests on law enforcement websites; description of witness intimidation and safety resources on prosecutor websites 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 22
MONITORING In instances where the defendant uses gang members, friends, etc. to intimidate his victim: Probation condition prohibiting gang-member probationers from attending court proceedings unless they are participants in an action or are subpoenaed by one of the parties To increase supervision for persons with suspected gang associations, as an example, Tennessee Probation & Parole and Nashville PD are piloting the use of GPS to monitor these individuals and see whether it impacts their associations John Wilkinson Attorney Advisor 1100 H Street NW, Suite 310 Washington, DC 20005 P: (202) 596-4229 F: (202) 393-1918 jwilkinson@aequitasresource.org www.aequitasresource.org 2014 AEquitas: The Prosecutors Resource on Violence Against Women, a project of the Pennsylvania Coalition Against Rape 23