Protecting Victims Who Serve as Witnesses for the Prosecution
A 19-year-old alleges he was shot in the face in a playground by a 21-year-old (a repeat offender who has a history of intimidating witnesses). The accused is jailed. A month before the trial, someone fires close to 20 bullets into the 19-year-old’s mother’s home while he is away and three children and a grandchild are inside. The 19-year-old, who has been living with out-of-town relatives, decides not to testify as a witness for the prosecution. “I’m scared for my family. I’m sorry for the danger I put them in. They don’t deserve this. If I testify and put him away for good, what does that even do? He’s in jail now, and somebody still shot at my family.” (Newall, 2011)
People who are unsure about whether to report crimes, press charges, and testify in court certainly could be dissuaded by chilling tales like this one. Victims who agree to serve as prosecution witnesses need to be protected from intimidation and reprisals. The gravest dangers are faced by indi- viduals harmed by drug-dealing crews, defectors from street gangs and mob syndicates, and battered women trying to break free from abusive mates. Intimidation can range from nuisance phone calls, stalking, and explicit threats of physical attacks to property damage (vandalism) and even deadly assaults. Offenders or the defendants’ friends or rela- tives can attempt to scare victims during face- to-face confrontations that can take place in police stations and courthouses, as well as in neighbor- hoods and homes. The fear of reprisals can cause a victim to ask that charges be dropped, or simply to not show up to testify, or to recant earlier testimony
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when cross-examined. When intimidation suc- ceeds, prosecutors are forced to drop charges, judges dismiss cases, juries fail to convict, and guilty parties go free (Gately, 2005).
Because complainants’ perceptions of the risks of cooperation determine whether they will testify in court, the primary responsibility for safeguarding the well-being of witnesses for the state falls to the lawyer handling the case for the government. When prosecutors don’t react to acts of intimida- tion by providing police protection, one of the vic- tim’s worst fears is confirmed—namely, that the criminal justice system can’t provide security from further harm and that the only way to avoid repri- sals is to stop cooperating. If left unaddressed, these incidents convey the message that complainants are on their own, and they signify to offenders that witness tampering is worth a try. It may have the desired effect, and usually it carries little risk of additional penalties (see Docksai, 1979; President’s Task Force, 1982; Davis, 1983; and Healy, 1995).
Just how serious is the problem of intimidation? How many complainants suffer acts of intimidation after seeking help from the authorities? How many crimes go unreported because the victim fears retal- iation? The annual rates of nonreporting due to fear of reprisal are measured by the NCVS. Each year only a small percentage of respondents admit to interviewers that worries about retaliation stopped them from informing the police about violent crimes. Fear inhibits around 10 percent of all rape victims each year from trying to get their attackers in trouble with the law. Worries about what the offender might do are less of a deterrent to report- ing in cases of simple assaults, aggravated assaults (like shootings and stabbings), and robberies (BJS, 2008c). (The percentages can fluctuate considerably from year to year because the number of survey respondents who were harmed in these specific ways is extremely small, statistically speaking.) As for changes over time, intimidation levels appar- ently have not changed substantially over the past few decades; if anything, the percentages might be rising when it comes to robbery and minor assaults. The situation certainly is not improving. However, based on this evidence from NCVS findings from
the 1980s up to 2008, overall, it appears that this problem actually is not of major importance.
But these statistics might yield false impressions. Measuring intimidation is very difficult, in part because would-be complainants (and witnesses) who are successfully intimidated might be too afraid to disclose their plight not only to detectives and prosecutors but also to NCVS interviewers. Also, intimidation can be based on “what if…” fears even if offenders don’t actually threaten reprisals. The actual number of nonreporting and noncoo- perating individuals really cannot be accurately determined. Various studies have yielded contradic- tory findings about how often injured parties are effectively intimidated by the persons that they accuse of harming them (see Fried, 1982; and Glaberson, 2003).When investigative journalists contended that witness fear was a factor in virtually every violent crime prosecution in Philadelphia, a senator proposed to make witness intimidation into a federal offense (Phillips and McCoy, 2010).
Several aspects of the intimidation problem still need further study. Which groups are more vulner- able to fears of reprisals than others (in terms of age, sex, race/ethnicity, immigration status, and prior involvement with the justice system either as a complainant or as a defendant)? What behaviors or consequences are considered to be most threat- ening? What form of retribution do victims fear more, acts directed against themselves or their loved ones? Why do some persons brave the risks despite efforts to silence them? What services do some injured parties insist must be provided in order for them to be willing to cooperate and tes- tify? Where do the complainants live and work vis- à-vis the intimidators who threaten them? At what times of day or at what stages in the legal process (before or after lineups or court proceedings), and places (schools, job sites, recreational areas) do they feel most vulnerable? Are issues of shared responsi- bility, prior victim–offender relationships, family ties, and neighborhood subcultures significant fac- tors in the intimidation equation (see Dedel, 2006)?
The problem of intimidation goes beyond direct threats. Would-be complainants may experi- ence strong pressures from families and friends not
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to come forward and tell police what happened. As one journalist dramatically put it, in many urban neighborhoods, “talking to the law has become a mortal sin, a dishonorable act punishable by social banishment—or worse” (Kahn, 2007). Subjected to this “cultural intimidation” by their community to not “snitch,” to the authorities, the casualties of beatings, stabbings, and shootings may be forced to either settle the score privately or to let the mat- ter rest. But that only perpetuates a cycle of attacks and retaliatory strikes as part of a neighborhood sub- culture of violence that adds to the level of danger and misery in high-crime areas, especially in poverty-stricken inner-city areas. Government offi- cials and community activists need to counteract this drift toward “do-it-yourself” acts of revenge that are deemed to be “street justice” (see Chapter 13) by developing creative ways to protect those who are urged by officials to cooperate with law enforcement agencies and the prosecution (Kahn, 2007).
This often-cited example shows how a person who did her civic duty by cooperating with the authorities ended up murdered, along with her family, sparking a public outcry for more effective witness protection strategies:
A woman repeatedly files complaints with the police against the dealers who sell drugs in front of her row house in a tough urban area. One night, an angry 21- year-old dealer kicks open her front door and throws a firebomb inside. The woman, her husband, and her five children are burned to death in the resulting inferno. The dealer is sentenced to life behind bars without parole, and local residents hold a vigil each year to commemorate her courage and sacrifice. After remaining boarded-up for years, the row house is renovated and turned into a “safe haven community center” named after her. It offers a computer lab, an arts and crafts program, and other activities to children who live nearby. A bright blue light flashes 24 hours a day, reminding passers-by—as well as street-level dealers—that a surveillance camera is trained on that corner. (Simmons, 2007)
Much of the intimidation problem can be traced to officials who have shirked their responsi- bilities to victims. Police officers might con victims
into cooperating by making empty promises of added protection, knowing full well that their precincts don’t have the resources to provide such special attention. Because attrition lightens their workload, ADAs might allow cases to collapse when key witnesses and complainants fail to appear after being subpoenaed—perhaps due to intimida- tion. Judges may not be vigilant for the same reason: Intimidation leads to nonappearances and ultimately dismissals, which reduces caseloads. To reduce fears about reprisals, the American Bar Asso- ciation’s Committee on Victims (1979) put forward five recommendations decades ago, but these mea- sures still have not been implemented in many jur- isdictions. The ABA urged that legislatures should make attempts at intimidation a misdemeanor. Police forces ought to set up victim/witness protec- tion squads. Judges should issue orders of protection and consider violations as grounds for contempt- of-court citations and revocations of bail. Also, judges should grant continuances rather than drop all charges against defendants if complaining wit- nesses mysteriously fail to appear when subpoenaed. Prosecutors must avoid carelessly revealing infor- mation concerning the whereabouts of victims, even after cases are resolved.
Prosecutors always have had to coax victims and other witnesses to cooperate by offering them pro- tective services until the trial is over, or even longer. However, inadequate funding limits the ability of prosecutors’ offices to offer these protective measures to all who need them (New York State Law Enforcement Council, 1994). Also, some victims understandably are reluctant to accept offers of pro- tection if it means uprooting their families and virtu- ally starting their lives over, as this case illustrates.
A mother’s house is riddled with bullets because her son is willing to testify against a young man who allegedly shot him. The district attorney’s office offers to move her and her family to another town with the help of the state’s witness relocation pro- gram. The program would pay for 120 days of temporary housing, moving expenses, storage costs, and two months’ rent. But the family would have to agree never to return to the neighborhood where they
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have other family members and friends. The mother turns down the government’s offer. Her fiancé explains, “That house is everything she’s earned in life. It’s hard for her to turn her back on it.” Noting that she has nearly finished paying off the mortgage after living in her home for 16 years and raising seven children in it, she despairs, “It just doesn’t work for us. We will do our best to hang in there, I guess.” When she tells her son to keep away from the neighborhood, he decides he won’t testify. (Newall, 2011)
The establishment of witness-protection pro- grams on the state and federal levels represents the government’s greatest possible commitment to address the threat of reprisals. These secretive pro- grams provide tight security to victims, witnesses, and their immediate families. Their services are intended primarily to safeguard witnesses willing to testify against criminal organizations like mob families, street gangs, and drug trafficking networks. Often the beneficiaries are not really victims but lawbreakers like mob turncoats, former drug deal- ers, and defectors from street gangs. The federal Witness Security Program promises relocation, new identities, new jobs, and payment of moving expenses (U.S. Marshals Service, 2011). Successful relocation, even if at a temporary shelter or safe house and on an emergency basis, requires a multi- agency response that usually involves police, prose- cutors, public housing agencies, and social service providers. Lesser measures require sturdier locks, alarm systems, stepped-up police patrols, and escorts; efforts to avoid publicly identifying coop- erating witnesses so they won’t be labeled as “rats” or “snitches”; measures to limit contacts with potential intimidators (through unlisted numbers, caller ID, and call blocking); and supportive services through existing VWAPS. Also, the authorities must admonish potential intimidators, assist victims to obtain restraining orders and no-contact condi- tions of bail, and enforce speedy trial provisions and witness tampering statutes. Compelling victims to testify by holding them as material witnesses or threatening them with contempt of court usually is ineffective (Dedel, 2006).
In sum, jurisdictions that fail to adequately confront the problem of victim and witness intimi- dation will suffer from high levels of retaliatory vio- lence, low levels of public confidence in the ability of the criminal justice system to protect them, low reporting rates, subpar clearance rates, and reduced conviction rates.
To be fair and balanced, one additional type of intimidation must be addressed. One-sided formu- lations of the intimidation problem imply that it is improper for anyone other than law enforcement agents to contact witnesses and victims. But an important principle of the adversary system is that a person accused of a crime has a constitutional right to confront his accusers. Therefore, defense attorneys must be allowed to interview witnesses and compel them to testify truthfully. But reluctant witnesses who have information that will help the case of the accused also can be intimidated—not by the threat of violence but by worries about unfa- vorable media coverage and by fear of harassment by the authorities, especially in highly publicized “must-win” cases (see American Bar Association Committee on Victims, 1979).