Appendix H. Witness Intimidation Checklist24

Where Intimidation Has Already Occurred

Add Criminal Charges for Intimidation Conduct

When a victim or witness reports that the defendant, or someone acting on the defendant’s behalf, has engaged in conduct intended to intimidate the witness, those incidents should be thoroughly investigated.

Depending upon the available evidence and the conduct at issue, consider charging such acts of intimidation as part of the same charging instrument (indictment or information), superseding the original if necessary.

Additional charges might include such crimes as witness tampering, subornation of perjury, witness retaliation, obstruction of justice, threats, stalking, criminal mischief/vandalism, or harassment.

By charging such acts as part of the same criminal case that is going to trial, you can avoid the necessity of moving to admit evidence of those acts under Fed. R. Evid. 404(b).25 Motions to sever such charges for trial can be opposed, moreover, on the grounds that such evidence would be admissible under that evidence rule, as evidence of the defendant’s purpose, intent, or consciousness of guilt.26 Charging intimidation in the same indictment or information will obviate the need for any limiting instructions that normally would be given in connection with 404(b) evidence, and will also support an argument for consecutive sentences when the defendant is convicted.

Review Old Case Files and Police Reports

Old case files and police reports — particularly those involving the same parties, although some defendants will have previous cases involving other victims (which are also worth reviewing) — may provide a great deal of information relevant to the new case.

These prior cases may show a pattern of control and intimidation that might be relevant to a motion on forfeiture by wrongdoing. They may provide clues to the defendant’s “style” of intimidation, making it possible to seek bail with appropriate conditions, to create an effective safety plan for victims and witnesses, and to appropriately monitor the defendant’s conduct throughout the adjudication process. They may reveal friends, family, and criminal associates of the defendant who might be involved in intimidation efforts on the defendant’s behalf. They may be a source of “other crimes and wrongs” evidence that might be admissible under Rule 404(b) to show motive, intent, or absence of mistake or accident.

These closed cases can often be identified by reviewing the defendant’s criminal history or by reviewing family court history. In addition, the victim should be asked whether there were other incidents in which there was a police response, or a protective order issued, but no criminal charges – including incidents that may have occurred in other jurisdictions. Often the police reports or case files relevant to those matters can be obtained with a phone call or written request to the jurisdiction where the incident occurred.

A review of closed cases may also disclose prior incidents that were not prosecuted due to the non-participation of the victim. If these incidents are recent enough to still be within the limitations period, and if it appears there may now be sufficient evidence to proceed, consider re-opening those cases, and either adding them to the present case (particularly if they represent an ongoing pattern of conduct that would survive a motion to sever), or reinstating them as separate cases.

Reinstating cases that were closed due to intimidation can be an effective way of deterring that conduct. A defendant facing additional charges, including those for intimidation conduct that can be proved, may be less likely to risk further prosecution for additional acts of intimidation.

Investigate and Charge Third-Party Intimidators

Friends, family, and criminal associates of the offender may engage in criminal intimidation on behalf of the offender. These individuals should be charged with applicable intimidation crimes, as well. Thorough investigation of these acts (including interviews with the actors) may result in sufficient evidence to link the original defendant to these acts, resulting in charges for conspiracy or accomplice liability.

Where the original defendant is shown to be responsible for eliciting acts of intimidation by third parties, it may be possible to negotiate plea agreements with those third parties in exchange for their cooperation against the primary defendant. And, of course, in such circumstances the primary defendant should be charged as well, provided there is sufficient proof of personal involvement.

 

Where the Victim or Witness May Be at Risk For (Further) Intimidation

Conduct a Risk Assessment

There are several ways of evaluating safety risks for victims and witnesses. The method of conducting such evaluation may depend upon the type of case. There are several validated risk-assessment instruments for use with domestic violence victims, including the Ontario Domestic Assault Risk Assessment (ODARA),27 the Spousal Assault Risk Assessment Guide (SARA),28 MOSAIC,29 and the Danger Assessment.30

Most of these instruments are intended to measure lethality risk — the risk that a particular victim will be killed by the abuser. They do not necessarily gauge whether the victim will be subjected to intimidation by the offender. The results of the evaluation, however, may provide important information about the degree of risk faced by a particular victim, and may provide guidance for safety planning. It is important to remember that in domestic violence cases, there is almost always some degree of intimidation conduct that can be anticipated.

In gang-violence cases, experienced investigators have noted that the victims and witnesses most likely to be subjected to intimidation tactics are those who have some direct connection to the gang — they are either members of the same gang or a rival gang.31

Next in the risk hierarchy are victims and witnesses who reside within or near the gang’s territorial boundaries.32 These victims or witnesses may face intimidation pressure not only from the offender and gang, but also from the community at large, which may actively discourage “snitching” to law enforcement. Victims and witnesses who are neither involved in gang activity nor have any other connection with the gang or neighborhood, are at significantly lower risk of intimidation.33

In human trafficking cases, as in domestic violence cases, some degree of attempted intimidation can almost always be expected. Some trafficking victims are forced or coerced into trafficking, while others may be emotionally manipulated to lure them in – and intimidation is a common tactic to keep victims enslaved.

Traffickers may enlist some “favored” victims to keep the others under control, resulting in intimidation by one victim against others. In addition, traffickers may engage in threats or assaults against one victim to serve as a means of intimidating the others.

In any criminal case, the best indicator of risk for intimidation is the prior history of intimidation by the defendant – toward this victim, witness, or others – as well as the defendant’s prior criminal history. Among the factors to consider:

  • Has the defendant previously been charged with crimes of violence or intimidation?
  • Does the defendant have access to weapons?
  • Does the defendant (or the victim) have a drug, alcohol, or mental health issue?
  • Is there a history of dropped charges, restraining orders, or dismissal of cases due to the victim’s or witnesses’ failure to appear?
  • Does the defendant (or allies of the defendant) have any power or authority over the victim or witness (g., in an institutional setting – such as a school, correctional institution, hospital, group home – or organizational setting – such as the church, military, or other community-based association)?
  • How fearful is the victim or witness? What is that fear based upon?34
  • How serious are the crimes with which the defendant has been charged, and what is the potential sentencing exposure?35
Create (or Adjust) the Safety Plan

Safety plans should be constantly re-evaluated throughout the proceedings. Changes in circumstances — in the threat level, or in the needs or concerns of the victim or witness — should result in adjustments to the plan. Central to any safety plan are tight restrictions on the defendant’s access to personal contact or communication with the witness.

Encourage the witness to take an active role in the safety planning process, and to be completely honest about what safety measures are acceptable to him or her. A plan is only as good as the witness’s willingness to comply with its provisions. Measures that will help to enhance witness safety and security include:

  • Implementing bail conditions prohibiting contact between defendant and the witness, prohibiting defendant from going to certain locations frequented by the witness, or prohibiting contact with criminal associates. Other bail conditions that may reduce the incidence of intimidation or its consequences include restrictions on the possession of weapons, prohibitions on consumption of alcohol or drugs, compliance with recommended substance abuse or mental health treatment programs, and close supervision with regular reporting to a probation officer or other supervisor.
  • Practicing internet/social media safety. Caution witnesses against actions that may undermine their own safety, such as talking about the case to others or posting personal information on social networking sites, internet forums, or blogs. In particular, counsel them against posting anything about the case or the defendant, since such actions may not only provoke a response from the defendant or others acting on the defendant’s behalf, but may also be a source of impeachment or result in defense requests for communications intended to be private. Defendants or third parties may send “friend” requests that will give them access to personal information that could be used in attempts to intimidate the witness. Advise witnesses to maximize the available privacy settings on any personal social networking profiles, and caution them against posting personal information that could be used by the offender to stalk, harass, or threaten them.
  • Providing the witness’s landlord, employer, and schools (including those attended by the witness’s children) with information about the threat posed by the defendant, as well as a photograph and a copy of any orders of protection.
  • Changing or adding locks, security lighting, surveillance cameras, or panic alarms for the witness’s home.
  • Changing the witness’s routines — times, places, and routes for shopping or other personal errands.
  • Increasing police patrols of the witness’s neighborhood, with officers paying special attention to any suspicious vehicles or activity around the witness’s home.
  • Using protective custody or transfer of incarcerated witnesses. If your case involves witnesses who are incarcerated, be sure the institution where they are confined is aware of the case and witness’s role, so it can take appropriate measures to protect the witnesses and ensure they are not transported for court appearances alongside the defendant or the defendant’s associates. 36
  • Utilizing witness relocation — even if informally. Witness relocation may be the most comprehensive way to prevent intimidation, but it need not be through a formal witness protection program. Temporary relocation to a shelter or home of a distant friend or relative may be sufficient to protect the witness until the defendant is in custody, or during high-risk periods – the time just before trial or a critical hearing. Permanent relocation to a different housing project or to publicly-subsidized (“Section 8”) housing will make it more difficult for the defendant or any criminal associates to contact the witness, and may provide sufficient protection under the circumstances. Such measures are less stressful and disruptive to witnesses and their families, and less costly than a more comprehensive supervised relocation of the type offered by traditional witness protection programs. To the extent that disruption to their lives is minimized, witnesses are more likely to abide by necessary safety precautions.37
  • Employing an advanced witness protection program. Although some states have centralized witness protection programs, the eligibility for participation in such programs may be limited. In addition, such programs are, by far, the most disruptive to the personal lives of witnesses and their families, since participation typically requires isolation from, and bars communication with, friends, family, and locations with which the witness is comfortable and familiar. Moreover, such programs tend to be very costly. In appropriate cases, however, witness relocation programs provide very effective protection to participating witnesses.
Educate Victim or Witness About Intimidation and Evidence Preservation

Many victims and witnesses may be unaware of what conduct qualifies as intimidation or manipulation. Domestic violence or human trafficking victims, in particular, may be so accustomed to manipulation and intimidation in their day-to-day lives that they fail to recognize it for what it is – and may consequently fail to report it or preserve evidence of its occurrence. The initial meeting with the witness should include a discussion about what kinds of tactics the witness can expect, how to stay safe from them, and how to document and report any attempts of intimidation or manipulation.

Although victims and witnesses vulnerable to intimidation should be instructed to preserve evidence (such as voicemails, emails, text messages, internet postings, cards, or letters), and maintain a contemporaneous record (such as a logbook) of dates, times, and details of any intimidation attempts, they should also be cautioned not to deliberately elicit such evidence on their own. Explain to the witness that such actions on their part might result in the court concluding the witness was acting as an agent of law enforcement and consequently suppressing the evidence.38

In the same vein, it is not unusual for victims or witnesses to try to record conversations with the offender. If you are in a jurisdiction where voice recording requires the knowledge and consent of both parties to the conversation, it is important to caution the witness that any such recordings may subject them to civil or criminal liability.

The last thing a victim or witness needs is to be subjected to a criminal complaint or civil lawsuit by the offender for illegally recording conversations.

Even in jurisdictions with a “one party consent” rule (where recording is legal as long as one participant to the conversation consents), such recording after the right to counsel has attached will be scrutinized for potential law-enforcement involvement.

If the court finds the witness acted on behalf of law enforcement, the recording may be suppressed for violating the defendant’s 6th Amendment rights.39 Therefore, advise victims and witnesses not to record conversations with defendants or others, except under supervision of an investigator in the course of a properly authorized consensual intercept of the call. Such consensual intercepts may be subject to strict requirements for authorization, and failure to comply with such requirements may result in suppression of the recording.40

The witness should be instructed to notify the assigned investigator or prosecutor immediately in the event of any intimidation attempts so that the incident can be thoroughly investigated. Although emergency situations warrant a call to 911, the witness should be reminded to inform any responding police officers of the pending case and explain that this is a suspected act of witness intimidation.

The witness should also advise the responding officer of the name of the assigned investigator or prosecutor.

The witness (and the responding police officer) should inform the said investigator or prosecutor as soon as practicable, regardless of whether criminal complaints are issued for the intimidation. This way, acts of intimidation will not be overlooked, or independently disposed of by a different court or prosecutor, which will preclude the act of intimidation from being tried with the primary case.

The goal should be to have all criminal matters related to the primary case referred to the same agency, and ultimately the same prosecutor, for investigation and ultimate disposition.

If possible, provide witnesses with a brochure reminding them of the proper way to recognize and report intimidation, as well as log details concerning any suspicious incidents – including date, time, a description of the incident, and any witnesses.41

Discuss with Witnesses What to Do If Contacted by the Defense

Explain to witnesses that the defense attorney or investigator has the right to contact them for an interview, and that nothing is improper about such contacts. Also explain that it is up to them whether to speak with a defense attorney or investigator, just as it is up to them whether to speak with the prosecutor or prosecutor’s investigator.42

Explain that witnesses have a right to know with whom they are speaking, and what kind of identification investigators from your office can present upon request.43

You can also tell the witness that regardless of whether they decide to speak with the defense, you would appreciate notification about any such contacts or interviews – stressing again that this is strictly voluntary.

Although there is nothing improper about defense attempts to interview witnesses, a few defense attorneys employ investigators who conduct the investigation in a way that amounts to witness intimidation, whether so intended or not. It is best to find out as early as possible if this is an issue so that appropriate corrective action can be taken.44

In some cases, where it is crucial to protect the witness’s address and contact information, a motion for a protective order to deny or delay discovery of such information, or restrict its dissemination to defense counsel only, may be appropriate.

Secure a High Bail with Appropriate Bail Conditions

Where witness intimidation has already occurred, either in this case or any of the defendant’s prior cases, that fact can be argued in support of a high bail. If your jurisdiction allows consideration of public safety when setting bail amount, danger to the victim or witnesses should weigh heavily on that factor.

If risk assessment data or expert testimony about the defendant’s dangerousness is available, be sure that such information is presented to the judge. Even where the only consideration is to secure the defendant’s presence at trial, it can be argued that any defendant who intimidates witnesses presents a risk of not obeying court orders or appearing for trial when ordered to do so, and that a high bail is therefore warranted to secure his or her presence.

Prior arrests or convictions, particularly for crimes of violence (and especially if they are for similar crimes, such as crimes of domestic violence) should also be vigorously argued in support of a high bail.

Appropriate bail conditions are critical. “No contact” conditions should be routine unless the victim affirmatively requests otherwise. Even in those cases, such conditions should sometimes be imposed, regardless of the victim’s wishes, when necessary to protect the victim.

While the victim’s wishes should always be an important consideration, the ultimate responsibility for making a recommendation lies with the prosecutor’s. Bear in mind that sometimes a victim’s insistence on contact is the result of the defendant’s intimidation.

In cases where the defendant has criminal associates, e.g., gang violence cases, they should be prohibited from associating with those individuals as a condition of bail.

In some jurisdictions, electronic monitoring may be available as a condition of release on bail.  These systems may vary widely in their effectiveness protecting victims and witnesses; it is advisable to learn how your particular monitoring system works so that judges do not release dangerous defendants based on a misapprehension of the system’s effectiveness to protect the victim and witnesses.

Other appropriate conditions may include a prohibition on weapons possession, alcohol use, or drugs consumption, and require compliance with recommended substance abuse or mental health treatment programs. A bail condition requiring the defendant to report on a regular basis to a probation officer may also be a measure of deterrence against intimidation.

Ask the Court to Admonish the Defendant at Arraignment

In any case where there is a risk of witness intimidation, request the judge admonish the defendant, preferably at the first court appearance, about refraining from personally contacting any victims or witnesses (other than his own witnesses) in the case.

Often a defendant’s allies — friends and relatives — will also be in the courtroom at arraignment. A warning from the bench may discourage some would-be intimidators from engaging in those tactics.

Defendants should be cautioned that any attempt to influence or dissuade witnesses from testifying truthfully will not only subject them to possible prosecution, but may be used against them in their criminal cases.

If the court declines to give such an admonishment, the prosecutor can do so when putting other matters on the record. For example, he or she can state, “Your Honor, the State wants to be certain that the defendant understands that we take witness tampering or intimidation very seriously. Any attempts to persuade any witness in this case to testify falsely or avoid coming to court will be investigated, and the individuals responsible will be prosecuted. In addition, if we discover that the defendant was responsible for any such attempts, we will use that against them in the criminal proceedings in this case.”

Prepare for the Possibility that Witness Participation May End

Despite the best efforts of the criminal justice system, some attempts at intimidation inevitably succeed. Consequently, some victims and witnesses who are initially willing to participate in the process may become reluctant to do so as time goes by. By taking certain pretrial measures as soon as practicable, you will increase the likelihood of successfully prosecuting your case even if the witness later becomes unavailable to testify at trial.

  • Obtain Witness Contact Information

Obtain as much information as possible from the witness that will assist in contacting or locating them in the future. If the witness is produced at trial — even as a hostile or defense witness— there will be no Confrontation Clause violation if prior statements are admitted under hearsay exceptions.

If the witness cannot be located, any motion or attempt to admit hearsay — either under the forfeiture doctrine or as testimonial statements where the defendant has had a prior opportunity to cross-examine — will require the trial court to find that the witness is “unavailable” for trial.45 The State will therefore have to present evidence that it made all reasonable efforts to produce the witness at trial.46

Obtain contact information for the witness’s home address, home and cell phone numbers, employer or school (including the schools of the witness’s children), email address, and contact information for a couple of trusted friends or relatives who can pass a message to the witness if necessary.

This information will provide leads that can be followed to make documented attempts to locate and serve the witness, which will be essential if the witness fails to appear for trial. It is good practice to check this contact information is accurate before there is a need to locate a missing witness. Any contact information not already known to the defendant should be protected from disclosure to the defense as long as possible, through use of a protective order to delay or deny discovery.

  • Preserve Testimony of Witnesses Vulnerable to Intimidation by Calling Them to Testify at Preliminary Hearings

When a witness is unavailable at trial due to intimidation or for any other reason, the State can present recorded testimony from any proceeding at which the defense had an opportunity to cross-examine the witness.47

Because cross-examination is essential for purposes of the Confrontation Clause, grand jury testimony of an unavailable witness will not be admissible at trial (absent a successful motion to admit evidence under the doctrine of forfeiture by wrongdoing).

However, testimony of a witness at a bail or preliminary probable cause hearing, when given subject to cross-examination by defense counsel, can be admitted at trial without violating the Confrontation Clause – provided the witness is unavailable for trial.48

These preliminary hearings therefore present the opportunity to preserve the witness’s testimony while the witness is still cooperative.

To assure the admissibility of such testimony at trial, provide all available discovery to defense counsel prior to the hearing, and do not object to any reasonable adjournments to enable defense counsel to prepare an effective cross-examination of the witness.

Objections to questions during cross-examination should be kept to a minimum as well, so that the trial court will be assured the defendant had a full and fair opportunity for cross-examination.

  • Open a “Forfeiture File” for Witnesses Who May Not Appear at Trial Due to Intimidation

For any witnesses who are vulnerable to intimidation, open a “forfeiture file” in one section of your trial folder or notebook. Maintain this file with any police or investigative reports, statements, or other evidence that would support a finding of the kind of “classic abusive relationship” or other pattern of intimidation that would support a finding that the defendant intended to prevent the witness from testifying.

Often you will not know until the day of trial whether an intimidated witness will appear in court. By maintaining a “forfeiture file,” perhaps with a draft motion to admit hearsay statements of an absent witness under the forfeiture rule49 – including copies of any cases upon which you would rely for such a motion – you can be prepared to conduct a forfeiture hearing on short notice, if necessary.

 

Ongoing Investigation/Communication

A follow-up investigation and regular communication with victims and witnesses should be ongoing throughout the pretrial period. Cases involving intimidation can change rapidly, with a witness who is a willing participant one day becoming unwilling the next.

Victims and witnesses should receive regular updates about the status and any important developments in the case. The investigator or prosecutor should also “check in” with witnesses on a regular basis to see if anything has changed in terms of evidence or safety concerns, or if there have been any suspicious incidents that may have seemed too minor to report. Any acts of intimidation that may be discovered should be thoroughly investigated.

If a previously participating victim or witness suddenly stops returning phone calls or seems reluctant to talk with the investigator or prosecutor, that may be an important indicator that intimidation is occurring. Efforts to maintain regular contact may provide the first indications to the prosecutor that a victim or witness may not appear at trial. If the witness can no longer be found at his or her address, or workplace or school, the investigator can immediately begin attempts to locate the witness.

Be sure that the assigned investigator maintains a careful record of all contacts with victims and witnesses, including unsuccessful attempts to locate, speak to, or meet with the witness. This record of contacts, including refusals or unsuccessful attempts, may be critical in establishing all reasonable efforts were made to secure the witness’s attendance at trial – which in turn will be necessary to establish “unavailability” of the witness in the event it is necessary to introduce out-of-court statements under the doctrine of forfeiture by wrongdoing.

Document all Recantations

It is not unusual for intimidated victims and witnesses to recant their statements or previous reports to law enforcement, downplay the seriousness of the crime, or falsely assume responsibility for the crime (g., “I was out of control, trying to attack him — he was just trying to calm me down.”). Prompt action in the form of an empathetic conversation with the witness can sometimes bring an intimidated witness “back on board,” but it is important to document any recantations, even if they are immediately abandoned. All recantations, however incredulous and brief they may be, must be documented and turned over to the defense as exculpatory evidence pursuant to Brady v. Maryland.50

Interview Family and Friends

Family and friends of the victim, and even employers or landlords,51 may have important information about the history of the parties’ relationship, including prior acts of intimidation, threats, or assaults. Such witnesses can be an important source of evidence of other crimes or “bad acts” evidence that may be relevant to prove the defendant’s motive, intent, common scheme or plan, absence of mistake or accident, or consciousness of guilt under Rule 404(b). Evidence of these acts may also help support a motion to admit hearsay under the forfeiture doctrine.

Family and friends are also a good source for nontestimonial statements by the victim, who may have confided in them about the abusive relationship or source or circumstances of injuries they have received. If these statements fall within an exception to finding of forfeiture by wrongdoing, their admission when the victim is unavailable for trial does not offend the Confrontation Clause under Crawford.

  • Monitor Communications Between the Incarcerated Defendant and the Victim/Witness or Third Parties

Many jails now routinely record telephone conversations made from the jail, with the exception of calls from a defendant to defense counsel. Some jails routinely make these recordings available to the prosecution upon request; others require a subpoena or other process to release the recordings.

Communications between incarcerated defendants and victims or witnesses often reveal instructions not to go to court, advice for how to avoid testifying, or “coaching” of testimony so the defendant can avoid criminal responsibility. While listening to these recordings can be labor-intensive, the evidence it provides can be invaluable and very powerful when presented at trial. Perhaps your office has interns or volunteers who can listen to recordings for the purpose of identifying calls intended to manipulate or intimidate witnesses.

Jails and prisons also may have procedures intended to restrict inmate mail communication, such as requiring outgoing mail (other than legal mail to a court or an attorney) to be written on postcards or otherwise be made subject to inspection. Alert the institution’s administration of witness intimidation issues so that outgoing written communication can be monitored for intimidation attempts.52

Visitor logs from the jail may also yield important information, particularly where third-party intimidation is suspected. Security cameras in visitor areas may be a source of evidence where personal contact is used for intimidation purposes.

It is worth keeping in mind, too, that some tech-savvy inmates may devise methods of circumventing restrictions on internet or telephone communications to contact their victims. Although inmate access to the internet is restricted or prohibited, some inmates are able to gain full access by using smuggled smart phones. In addition, as institutions implement programs that permit limited (and usually closely supervised) access to the internet for job-training programs or other legitimate purposes, these may present additional opportunities for intimidation by electronic means.

  • Preserve Electronic Evidence of Intimidation

Evidence of intimidation may also be found in text messages, emails, and postings on social networking sites, blogs, or forums. Avoid relying on printouts of such items, as they can easily be faked, and it is important to be able to establish their authenticity. It is not unusual for a defendant to forge communications from the victim, to make it appear that the victim is harassing, threatening, or stalking the defendant. These “communications” must, likewise, be carefully investigated so their fraudulent nature can be proved.

It is worthwhile to have at least one investigator in the prosecutor’s office who is thoroughly trained in the proper way to document the content of such messages, and prove their origin so they can be tied to the defendant. If your office does not have an investigator with such expertise, your State Police department most likely has investigators with the necessary training. The U.S. Attorney’s Office also has designated Assistant U.S. Attorneys who can provide assistance.53

Any text messages, voicemail messages, emails, or posts on social networking or other websites that are evidence of intimidation must be properly preserved and investigated. The first step should be for the investigator to observe and document the communication on the victim’s device or computer.

Even if the evidence is later accidentally deleted or records of the communication cannot be obtained with a subpoena, search warrant, or court order, the investigator can testify to what he or she observed.

Text messages on cell phones should be photographed (as it may not be possible to obtain evidence of their content from the wireless provider), and their contents should be backed up to digital media if possible.

Emails should be printed out, with the header information (showing the source of the message in the form of an IP address) included.54 Although the victim or witness can print out the information, for purposes of establishing authenticity, it is preferable for the investigator to preserve and/or print out such communications after first observing them on the victim’s computer or device.

Web pages, such as posts on Facebook, Twitter, or a blog, can be saved as a “web archive”55 and can be the basis for a search warrant or other process for the website’s hosting service.

Social networking sites have legal departments that will respond to requests from law enforcement, including requests to preserve the contents of a user’s account pending the issuance of formal process such as a subpoena, court order, or search warrant. These departments can explain what information is available, how long it can be preserved, and the process they require to be followed in order to release it.

Data contained in the account of the victim or witness can be obtained with his or her signed consent. In emergencies, where immediate information is necessary to preserve the life or physical safety of the witness, internet providers and services may waive the requirement of a formal legal process.

Details about investigations involving electronic communication are beyond the scope of this monograph, but there are several helpful resources to assist investigators in obtaining evidence in such cases.56 Information obtained from internet providers and social networking sites can constitute probable cause for a warrant to search the computer used by the defendant. A search of the computer may reveal troves of evidence of intimidation.57

Even if the investigation reveals that an intimidating message or post originated from a public computer, such as one in a library, the facility may keep a log of users or have a security video proving the defendant’s use of that computer. In addition, even without direct evidence that the defendant was the source of a threatening message, authorship can often be proved by means of traditional circumstantial evidence, including the content and timing of the message.

  • Adjust the Safety Plan as Necessary

Where investigation reveals that the safety risk to a victim or witness has changed, consider whether changes to the safety plan, including temporary relocation, may be necessary.

 

Pretrial Motions

Cases involving intimidation often will require one or more pretrial motions, particularly motions to determine what evidence will be admissible at trial. Court rules, rules of evidence, or even the preference of individual judges will frequently dictate the timing of such motions.

Whenever possible, file the motion and obtain a ruling at the earliest possible time. The results of motions may sometimes facilitate resolution of cases by guilty plea, since both the State and the defendant will have a clearer idea about the likelihood of success at trial based upon what evidence will be admissible. Even where such motions cannot be determined well in advance of the trial date, it is best to seek a ruling before opening statements so both parties will know what anticipated evidence can be mentioned in their respective openings.

Pretrial motions in limine typically include motions to admit evidence of other crimes or “bad acts” pursuant to Rule 404(b), motions to admit evidence pursuant to the doctrine of forfeiture by wrongdoing, motions to admit (subject to exceptions to the hearsay rule) nontestimonial hearsay statements of witnesses who are not testifying, or motions to admit testimonial hearsay statements of unavailable witnesses where there has been a prior opportunity for cross-examination.

Although evidence rulings concerning such Crawford issues (other than motions to admit evidence under the forfeiture doctrine) may not require a pretrial motion, a motion in limine prior to trial is nevertheless good practice because it will clarify what evidence ultimately will be admissible.

A motion in limine is also appropriate where there is a risk the defense may attempt to introduce personally embarrassing information about the witness that has no legal relevance to the case or the witness’s credibility.

Some defendants routinely threaten that if a case goes to trial, the defendant will testify, for example, that the victim had an abortion or was sexually abused as a child, for the sole purpose of discouraging their testimony. An advance ruling from the court prohibiting any questioning or testimony about such irrelevant matters will make the witness feel safer about testifying, and will provide the court with a basis for punishing the defendant if the order is ignored.

Any special motions concerning security measures during the trial should also be filed early so the court has ample time to consider the available options. In gang-violence, and certain other, cases where the defendant has a number of allies and supporters willing to engage in witness intimidation, special security measures may be warranted. Such measures might include separate metal detectors at the door of the courtroom or entrance to the hallway, prohibition of cell phones in the courtroom, requiring all spectators to provide identification, and extra security staff in the courtroom.

In cases where a witness would suffer serious emotional harm as a result of testifying in the defendant’s presence, a motion to permit the witness to testify via closed-circuit television may be an appropriate solution.58

Expert testimony is necessary to establish the harm the witness is likely to suffer if required to testify in the defendant’s presence. If the court finds the witness is likely to suffer such severe emotional harm, the attorneys may be permitted to conduct their examinations of the witness in a separate room, with a live video feed to the courtroom. Remote examinations of this type should not be conducted without a hearing regarding the necessity of doing so.

In some cases where there are grounds for a forfeiture motion, some of the hearsay statements might also be admissible (even without the forfeiture motion) because they are nontestimonial, and thus fall within an exception to the hearsay rule. In such cases, it is best to file a motion that asks the court to rule on the two grounds of admissibility in the alternative.

By having the court rule on both grounds, you will have a complete record for appellate review, potentially avoiding a remand for additional findings or, worse yet, a new trial. Evidence that is admissible under either theory may allow the appellate court to uphold a conviction.

If the court denies a motion to admit hearsay statements of an unavailable witness, consider whether the statements are so critical to your proofs that you cannot prove your case without them. In such a case, it may be worthwhile to seek an interlocutory appeal of the adverse ruling.59  Such appeals are typically discretionary, and you may have to seek leave of the trial court before filing a notice of appeal. Consult your appellate rules, or contact the attorney general’s office for guidance on this issue.

This Appendix and Model will not discuss in detail the law governing forfeiture by wrongdoing, nor the nuances surrounding the admissibility of hearsay statements of non-testifying witnesses under Crawford and its progeny. AEquitas has published Resources on both of these topics that discuss the relevant legal issues in detail.

Special Considerations for Motions Requiring a Showing of Witness Unavailability (Forfeiture or Testimonial Statements Admitted After Opportunity for Cross-Examination)

Successfully litigating a motion to admit evidence under the doctrine of forfeiture by wrongdoing, or to admit testimonial hearsay where there has been a prior opportunity for cross-examination, requires a showing that the witness is unavailable for trial.

Of course, a pretrial motion to admit statements of an unavailable witness presupposes that you know that the witness will be unavailable for trial.

In some cases, like when the witness is deceased or has asserted a valid claim of privilege, you will be certain of the witness’s unavailability. In other cases, the witness may have simply “disappeared” and evaded all attempts to locate him or her.

If all leads have been exhausted, it should be possible for the prosecutor to file, and for the court to rule upon, a pretrial motion. In other cases, such as those where the witness has merely expressed a refusal to testify or is unresponsive to communications, though the witness’s whereabouts are known, the motion may have to be delayed until immediately prior to trial, or even after the trial begins, to see what the witness’s response is to a subpoena and/or a direct order from the court to testify.60

If you have doubts about a witness’s willingness to appear for court and to testify, it is good practice to subpoena the witness for the day of the final pretrial conference or beginning of jury selection.

If the witness fails to appear after being properly served with a subpoena, or appears but refuses to testify, you can then proceed with a forfeiture motion before the jury is sworn. If the witness does appear, be sure to personally serve the witness with a subpoena for the date the witness is to testify.

If the witness fails to appear in response to a properly served subpoena, but his or her whereabouts are known, you must decide whether to seek a bench warrant to bring the witness to court. It is not good practice to arrest a reluctant victim. The victim has already been harmed, and being arrested will cause the victim additional harm and to avoid reaching out for help in the future.

It is important to note that although recantations must be disclosed to the defense as exculpatory evidence pursuant to Brady v. Maryland,61 a witness’s refusal to testify is not exculpatory.

There is, therefore, no ethical prohibition against negotiating a plea agreement without disclosing to the defense the witness’s reluctance or refusal to testify.62 If no resolution by plea is possible and the only way to prove the case is to arrest the victim, the best course may be to dismiss the case.

If jeopardy has not yet attached (in a jury trial, this is once the jury has been sworn in), it may be possible to reinstate the case at a later time if the victim later reconsiders, or if other evidence becomes available.

If the witness agrees to come to court to state his or her refusal to testify on the record, assuming there is no valid privilege, it may be necessary in some jurisdictions for the court to order the witness to testify under threat of contempt before they can be held “unavailable.”63

There is no need for the court to actually punish the contempt, but the threat of contempt may still have to be communicated to the witness. If the trial judge decides to punish the victim for contempt — a matter within the trial court’s discretion — again, it is almost always a better course at that juncture to dismiss the case than to criminally punish a reluctant victim for refusing to testify.

Where witness unavailability is based upon an inability to locate the witness, it will be necessary for the State to show that it made all reasonable efforts to produce them for trial. This may require testimony by the assigned investigator as to what efforts were made to locate the witness.

Unless the prosecution had every reason to believe the witness would appear, desultory efforts to locate the witness, or those not made until the eve of trial, may lead the court to conclude that the State has failed to show that the witness is actually unavailable.64 This is why it is critical to document all witness contacts — including those that were unsuccessful — during the pretrial phase. 

Consideration for Forfeiture Motions

Forfeiture by wrongdoing generally requires the State to prove, by the applicable standard of proof (a preponderance of the evidence in most jurisdictions; clear and convincing evidence in Washington,65 Maryland,66 and New York67), (a) that the defendant engaged in wrongdoing or (b) acquiesced in wrongdoing (c) that caused the witness to be unavailable for trial and (d) intended that result.68

  • Proving Wrongdoing

“Wrongdoing” is easily proved where the defendant has made threats or otherwise caused criminal harm to a victim or witness. However, “wrongdoing” in the forfeiture context may include more subtle acts of manipulation intended to dissuade the victim from testifying.69 Such acts may include declarations of love, promises to marry, promises to get counseling or treatment for a drug or alcohol problem, or plays for sympathy. The court may need to be educated about the role of this kind of manipulation in abusive relationships. Expert testimony at the forfeiture hearing from an expert in the dynamics of abusive relationships may help the trial court understand how such seemingly innocuous acts are used by abusers to control their victims, which will enable the court to find the defendant has engaged in wrongdoing.

  • Proving the Defendant’s Involvement/Acquiescence in Third-Party Wrongdoing

Where the intimidating conduct was actually committed by a third party (a friend, relative, or criminal associate of the defendant), the defendant will have forfeited his right to cross-examine the witness only if the defendant instigated or acquiesced in the intimidating conduct. Acquiescence implies both knowledge and approval of the act. Be certain you can prove such knowledge and approval, at least circumstantially. 

  • Proving the Defendant’s Wrongdoing Caused the Witness’s Unavailability

Because the forfeiture rule requires that the defendant’s wrongdoing be the cause of the witness’s unavailability for trial, it may be important to show that the witness did not have reasons of his or her own not to appear for trial. For example, showing that the absent witness left his or her home and employment abruptly, for no apparent reason other than the defendant’s wrongful conduct, would probably be sufficient to establish the causation element of forfeiture.

  • Proving the Defendant’s Intention to Cause the Witness’s Unavailability for Trial

    The majority and concurring opinions inGiles indicate that proof of a “classic abusive relationship” in which the victim was intentionally isolated to discourage the victim from reaching out for help, including help from law enforcement, can be used to prove, circumstantially, the defendant’s intent in committing an act that caused the victim’s unavailability for trial. Thus, evidence of prior acts of violence or coercive control, including isolation from family or friends, threats about what would happen if the victim reported the violence, prior criminal charges that were dismissed for failure of the victim to appear, or prior restraining orders that were dismissed at the victim’s request would all tend to show that this type of “classic abusive relationship” existed and, inferentially, that the defendant intended by his conduct to similarly prevent or discourage the victim from reaching out for help by testifying at trial.
  • Jury Instructions

If the court grants the motion to admit the unavailable witness’s hearsay statements, a special jury instruction may be appropriate. A suggested jury instruction is available online.70

 

24 Excerpted from The Prosecutors’ Resource on Witness Intimidation, AEQUITAS (March 2014), available at https://aequitasresource.org/wp-content/uploads/2018/09/The-Prosecutors-Resource-Intimidation.pdf.

25 Rule 404(b) governs the admissibility of other crimes or “bad acts” where such acts are relevant to prove some fact at issue, such as the defendant’s motive, knowledge, intent, absence of mistake or accident, or consciousness of guilt.

26 See, e.g., State v. Banks, 347 S.W.3d 31 (Ark. 2009) (evidence that defendant ordered killing of a witness admissible under Rule 404(b) to show consciousness of guilt); State v. Edwards, 678 S.E.2d 405 (S.C. 2009) (witness intimidation evidence admissible under Rule 404(b) to show consciousness of guilt).

27 Risk Assessments (ODARA) In Spousal/Partner Violence Cases, Nova Scotia Public Prosecution Serv., http://www.gov.ns.ca/pps/publications/ca_manual/ProsecutionPolicies/ODARA%20RISK%20ASSESSMENTS%20IN%20SPOUSALPARTNER%20CASES%20ALL.pdf.

28 Spousal Assault Risk Assessment Guide (SARA), Multi-Health Systems, https://link.springer.com/article/10.1023/A:1005430904495.

29 What is Mosaic? MOSAIC Threat Assessment Systems, https://www.mosaicmethod.com/.

30 Danger Assessment, http://www.dangerassessment.org/.

31 Rhonda Martinson, Elizabeth Wofford, Marijka Belgum-Gabbert & Sandra Tibbetts Murphy, Improving the Justice System Response to Witness Intimidation, Pilot Project Report: San Diego, California, AEquitas 30 (2014).

32 Id.

33 Id.

34 Victims are often accurate judges of how dangerous the offender is to them, and what is likely to escalate the violence or threatening conduct.

35 Defendants with more at stake may be more desperate to avoid criminal consequences, and thus more likely to resort to intimidation.

36 Typically such witness safety concerns should be communicated to the Internal Affairs Unit of the institution so that information about the witness’s cooperation is kept appropriately confidential to the extent possible. See Viktoria Kristiansson, Prosecuting Cases of Sexual Abuse in Confinement, 8 Strategies (Dec. 2012), https://aequitasresource.org/wp-content/uploads/2018/09/Prosecutors-Resource-on-Sexual-Abuse-in-Confinement.pdf; and Viktoria Kristiansson, Identifying, Investigating, and Prosecuting Witness Intimidation in Cases of Sexual Abuse in Confinement, 26 Strategies in Brief (2015), available at https://aequitasresource.org/wp-content/uploads/2018/09/Identifying-Investigating-and-Prosecuting-Witness-Intimidation-in-Cases-of-Sexual-Abuse-in-Confinement-Issue-26.pdf.

37 For more details about relocation strategies for witness protection, see Peter Finn & Kerry Murphy Healey, Preventing Gang- and Drug-Related Intimidation, Nat’l Inst. Just. 22-38 (Nov. 1996), https://www.ncjrs.gov/pdffiles/163067.pdf; and Kerry Murphy Healey, Research and Action, Victim and Witness Intimidation: New Developments and Emerging Responses, Nat’l Inst. Just 6-8 (Oct. 1995), https://www.ncjrs.gov/pdffiles/witintim.pdf.

38 See, e.g., Maine v. Moulton, 474 U.S. 159 (1985).

39 Id.

40 See, e.g., State v. K.W., 214 N.J. 499 (2013).

41 The Stalking Resource Center has created a sample log to record stalking incidents, which could easily be adapted to record any incidents of intimidation.  See Stalking Incident and Behavior Log, Stalking Resource Center, http://www.victimsofcrime.org/docs/src/stalking-incident-log_pdf.pdf?sfvrsn=4.

42 It would be unethical for the prosecution to discourage the witness from speaking with the defense. Model Rules of Prof’l Conduct R. 3.4 (2012). However, it is not unethical for the prosecution to remind the witness that s/he does not have an obligation to speak with anyone, except to respond to a subpoena, which is a court order to appear and testify.  Stressing that all interviews are voluntary, including those granted to the prosecution, should eliminate any misunderstanding on this point.

43 Unfortunately, it is not unusual for some defense investigators to identify themselves as investigators, without identifying themselves as investigators for defense counsel.

44 Such corrective action might begin with a letter to defense counsel explaining the problem and requesting that counsel take steps to ensure that the conduct is not repeated.  Of course, in the case of actions that are obviously intended to intimidate the witness, the response should be escalated accordingly.  Depending upon the circumstances, including whether defense counsel was personally involved, possible responses include notifying the court for whatever corrective action is deemed appropriate, moving to sanction or disqualify defense counsel, filing an ethics complaint, or criminal investigation and prosecution.

45 See Fed. R. Evid. 804(b)(6); Ohio v. Roberts, 448 U.S. 56, 74-77 (1980).

46 See Roberts, 447 U.S. at 74-77;  Barber v. Page, 390 U.S. 719 (1968); and Hardy v. Cross, 132 S.Ct. 490 (2011).

47 See California v. Green, 399 U.S. 149 (1970).

48 Some jurisdictions also have provisions for depositions to preserve witness testimony when it is anticipated a witness may not be available for trial. See, e.g., Fed. R. Crim. P. 15(a); and United States v. Yida, 498 F.3d 945, 959-60 (9th Cir. 2007). The availability of such a deposition, and the procedures for conducting it, will vary from one state to another.

49 AEquitas has produced sample briefs to admit evidence under the doctrine of forfeiture by wrongdoing, which may be obtained on request.

50 Brady v. Maryland, 373 U.S. 83 (1963).

51 Before reaching out to interview an employer or landlord, it is best to discuss your intention to do so with the victim.  The victim may have legitimate fears that such interviews would adversely affect his or her employment or housing situation. It is important to take care that the investigation does not create additional danger to the victim.

52 Many institutions have “security threat group” coordinators who monitor inmate communications/activities particularly as they relate to gang activity.  Such coordinators may be able to provide assistance in restricting or monitoring the communications of suspected intimidators.

53 Each U.S. Attorney’s Office has a designated Computer Hacking and Intellectual Property (CHIP) Attorney, who can provide assistance in obtaining evidence in cyber investigations. In addition, on-call assistance (both general and case-specific) is available from the duty attorney in the U.S. Department of Justice’s Computer Crime and Intellectual Property Section (CCIPS), who can be reached during regular hours at (202) 514-1026, and after hours at (202) 514-5000.

54 An “IP address” is a three- to nine-digit number, usually expressed in the form xxx.xxx.xxx, that uniquely identifies a computer or network from which the message was sent. In order to identify the source of an email that has been received, it is necessary to determine which Internet provider (e.g., Comcast, Earthlink, etc.) owns the originating IP address, and which customer had leased that IP address at the time the message was sent. Email headers will show the originating and receiving IP address, as well as the exact date and time it was sent. Each email “client” program (e.g., Outlook, Thunderbird, Apple Mail, etc.) will have its own way of displaying header information. Once the header is displayed, the email can be printed out and used as a basis for issuing a subpoena or other process to obtain information about the origin of the email. See Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, Off. Legal Educ., Executive Off. U.S. Attorneys (2009), http://www.justice.gov/criminal/cybercrime/docs/ssmanual2009.pdf.

55 A web archive is a file that contains all of the information, including embedded text and images, of a particular web page.

56 See, e.g., Electronic Crime Scene Investigation: A Guide for First Responders, Second Edition, Nat’l Inst. Just. (2008), https://www.ncjrs.gov/pdffiles1/nij/219941.pdf.

57 For example, the computer may contain traces of messages or images that were created or sent or searches conducted over the Internet (e.g., searches for surveillance equipment used in stalking or searches for personal information about the victim).

58 Confrontation via closed-circuit television pursuant to the rule set forth in Maryland v. Craig, 497 U.S. 397 (1990), continues to be acceptable after Crawford. See also United States v. Kappell, 418 F.3d 550 (6th Cir. 2005). Note that the circumstances permitting such alternative modes of testimony are strictly circumscribed, and the trial court must make explicit findings of necessity under the test set forth in Craig. See also United States v. Yates, 438 F.3d 1307, 1312-18 (11th Cir. 2006).

59 The potential need to appeal an adverse evidentiary ruling is another sound reason to file motions in limine well in advance of the trial date.

60 As noted previously, the unavailability of the witness may not be apparent until after the trial has commenced; this is the reason for creating the “forfeiture file” in your trial file or notebook as described in Part I of this Resource, supra.  In such cases the motion cannot be filed until the witness has become unavailable, but the file will ensure that you have the necessary supporting evidence available to go forward with the motion on short notice after the trial has begun.

61 Brady, 373 U.S. 83.

62 There is, however, an ethical obligation not to be untruthful with defense counsel if asked directly about a witness’s availability. Model Rules of Prof’l Conduct 3.3, 4.1, and 8.4(c) all forbid making false statements or misrepresentations in various circumstances. Rule 4.1(a) generally prohibits making a false statement of fact or law, and Rule 8.4(c) specifically forbids any misrepresentation that “reflects adversely on the lawyer’s fitness to practice law.” Rule 3.3(a)(1) specifically forbids any false statement of fact or law to a tribunal, which includes any statements made in the course of presenting a plea agreement to the court for approval and entry of the guilty plea.  Of course, the defense may already be aware of the witness’s reluctance or refusal to testify and therefore may insist on going to trial.

63 See, e.g., State v. Byrd, 967 A.2d 287, 304 (N.J. 2009). 

64 See United States v. Tirado-Tirado, 563 F.3d 117 (5th Cir. 2009).

65 State v. Mason, 160 Wash. 2d 910 (2007).

66 Md. Code Ann., Cts. & Jud. Proc. §10-901 (West 2011).

67 People v. Geraci, 85 N.Y.2d 359, 649 (1995).

68 See Fed. R. Evid. 804(b)(6). Some States have additional requirements, such as the requirement of a showing that the statement to be admitted is reliable. See also State v. Byrd, 967 A.2d 285, 304 (N.J. 2009).

69 See, e.g., People v. Byrd, 855 N.Y. S.2d 505 (2008) (hospital visits and hundreds of phone calls constituted “wrongdoing” in context of abusive relationship); People v. Santiago, 2003 N.Y. Slip Op. 51034[U] at *17, 2003 WL 21507176 (2003) (apologies and promises constituted “wrongdoing” in context of abusive relationship).

70 The Prosecutors’ Resource on Witness Intimidation, AEquitas 38 (March 2014), available at https://aequitasresource.org/wp-content/uploads/2018/09/The-Prosecutors-Resource-Intimidation.pdf.