COUNTERING WITNESS INTIMIDATION - DVCC Delaware · COUNTERING WITNESS INTIMIDATION AEQUITAS:...

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AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN

Forfeiture by Wrongoing

COUNTERING WITNESS

INTIMIDATION


AEQUITASAVAILABLE 24/7 VIA TELEPHONE AND/OR EMAIL

TECHNICAL ASSISTANCE

• Case consultations

• Research

TRAININGS

• Live• Online

RESOURCES

• Recorded webinars

• Model briefs, motions, expert reports, etc.

• Sample Voir Dire questions, expert examinations, etc.

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SUPPORT

This project was supported by Grant No. 2016-TA-AX-K036 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.


OBJECTIVES◉Reduce opportunities for intimidation.◉Educate victims about intimidation.◉Preserve evidence of intimidation that

will help to convict the abuser, regardless of whether (or how) the victim testifies.◉Litigate motions to admit evidence

under the doctrine of forfeiture by wrongdoing.

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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)

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)


TACTICS

◉Oral threats◉Notes, letters, nuisance calls◉Park or loiter outside homes◉Damage witnesses’ houses or property◉ Threaten witnesses’ family members◉Assault/ murder witnesses or their families

KELLY DEDEL, OFFICE OF COMMUNITY ORIENTED POLICING

SERVICES, WITNESS INTIMIDATION (2006)

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TACTICSCONT’D

◉Occur in or out of custody◉Harassing calls from other inmates / associates◉Direct calls from defendant while in custody

Power and Control

Witness Intimidation


MORE SUBTLE TACTICS

• “The Look”• Taking off jewelry, shirt• Making a fist

Non-verbal cues

• “Now you did it!”“Code” words

• Religion• Immigrant• LGBTQ

Culture

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ENLISTING THIRD PARTIES

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 POLICINGSERVICES, WITNESS INTIMIDATION (2006)


THE MOST DANGEROUS TIME

◉Most dangerous: between arrest and trial◉Second most dangerous: during the trial itself

KERRY HEALEY, NATIONAL INSTITUTE OF JUSTICE, RESEARCH IN ACTION, VICTIM AND WITNESS INTIMIDATION: NEW DEVELOPMENTS AND EMERGING

RESPONSES

(Oct. 1995)

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CELL PHONES AND SOCIAL MEDIA…

EVEN BEHIND BARS


EMOTIONAL MANIPULATION

Study of pre-trial jail: ● “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)


CARDS FROM DEFENDANT

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“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 2 (Oct. 1995)


HOW DO WE FIND OUT?

◉Victims are:◉Most likely to have evidence of intimidation◉Least informed about significance

◉Many victims discard such evidence, unaware of its importance


EDUCATING THE VICTIM

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ChallengesReduce

opportunities to intimidate

Educate victims

Preserve evidence of intimidation

Charge intimidation

crimes

Use evidence of

intimidation effectively

DENVER CITY ATTORNEY’S OFFICE, VICTIM RESOURCE PROGRAM,https://www.denvergov.org/content/dam/denvergov/Portals/772/Do

cuments/Before%20Case%20Goes%20to%20Trial.pdf

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EFFECTS ON THE VICTIM

◉Emotional or economic harm/ physical injury/ death◉Reluctance/ refusal to participate◉Recantation/ minimization◉Reluctance to report future crimes

Safety planning and services can eliminate or minimize these effects


EFFECTS ON THE CASE

◉Uncertainty about what evidence will be available for trial◉Pleas to lesser offenses for minimal sentences◉Dismissal or acquittal

Investigation / trial strategies can eliminate or minimize these effects

StrategiesReduce

opportunities to intimidate

Educate victims

Preserve evidence of intimidation

Charge intimidation

crimes

Use evidence of

intimidation effectively

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REDUCE OPPORTUNITIES

◉Safety planning with victim input●Temporary/ long-term relocation●Technology safety●Protective orders/ bail conditions

◉During medical treatment◉At police station/ courthouse


EDUCATE VICTIMS

◉What is considered intimidation?◉What should I do if I’m being intimidated?◉What should I save?◉How should I save it?

Victims are not investigators -consider risk to them and to case


PRESERVE EVIDENCE

◉Ask about intimidation during every witness contact◉Previous cases dropped/ dismissed may show history of intimidation◉Document evidence

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DOCUMENTATIONASK VICTIMS

◉Have you dropped charges or protective orders before? What made you do that?◉What has the offender told you will happen if he goes to jail, if you get an order, if you call the police?◉And follow up, for details


CHARGE INTIMIDATION CRIMES AND JOIN WITH PRINCIPAL CHARGE

Act of Intimidation; Aggravated Act of

IntimidationDEL. CODE ANN. tit., 11,

§ 3532, 3233

Tampering with a WitnessDEL. CODE ANN. tit.,

§ 1263

HarassmentDEL. CODE ANN. tit.,

§ 1311

Bribing a WitnessDEL. CODE ANN. tit.,

§ 1261


EFFECTIVE USE OF EVIDENCE

◉Forfeiture by wrongdoing (D.R.E., Rule 804(b)(6))◉Explain witness recantation / minimization◉Use as evidence of consciousness of guilt◉Aggravating factor at sentencing

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PROMISING PRACTICES


COORDINATED COMMUNITY RESPONSE

Training and resources to: ●Recognize intimidation as a crime●Preserve intimidation evidence●Report the intimidation●Educate and encourage victims to report

During every domestic violence contact


IN THE COURTHOUSE

◉Public notice of zero tolerance◉Court personnel alert; swift response◉Law enforcement presence at hearings/

trial◉Safe waiting areas◉Escorts to and from court◉Restrict use of cell phone cameras/

recording in hallways

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IN THE COURTROOM

◉Judicial admonishment◉Prosecution / advocacy alert to defendant / gallery ◉Cell phones◉Judge maintains strict control of courtroom

Court OrdersCarefully worded, comprehensive

no-contact / protective orders

Address acts of intimidation direct and indirect

Address social media communications

Hold offenders accountable on violations


FORFEITURE BY WRONGDOING

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EXCEPTION TO CONFRONTATIONREYNOLDS v. U.S., 98 U.S. 145, 158 (1878)

“The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, hecannot complain if competent evidence is admitted to supply the place of that which he has kept away.


FORFEITURE BY WRONGDOINGD.R.E., RULE 804(B)(6)

A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.


INVALUABLE TOOL

Applies to any potential witness who is unavailable●Not reluctant, or

testifying for defense

Opens the door to any hearsay● Testimonial●Nontestimonial ◉No need for standard hearsay exception

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GILES v. CALIFORNIA554 U.S. 383 (2008)

◉DV-related homicide: defendant shot ex-girlfriend◉Claimed self-defense●Previous assaults, vandalism, and

threats●Victim charged him - afraid she had

something in her hand●Closed eyes, fired several shots●Did not intend to kill


GILES IN STATE COURTS

◉3 weeks prior → Police responded to DV call●Victim crying●Said she was assaulted, strangled,

threatened with knife

◉Statements allowed under FBW based upon intentional act of killing◉Appellate courts affirmed


GILES IN U.S. SUPREME COURT

Case remanded:●Defendant had to have specific intent to make victim unavailable as a witness when committing the wrongdoing●Not enough evidence that defendant killed the victim to prevent her from testifying

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FORFEITURE AND DVGILES, 554 U.S. AT 377

“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.”


THE ABUSER’S INTENTIONGILES, 554 U.S. AT 377

“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.”


SUPPORTING EVIDENCEGILES, 554 U.S. AT 377

“Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside helpwould be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.”

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CONCURRING OPINIONGILES, 554 U.S. AT 380 (SOUTER, J., CONCURRING)

“[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”


INFERRING INTENTGILES, 554 U.S. AT 380 (SOUTER, J., CONCURRING)

“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”


PHILLIPS v. STATE154 A.3D 1130 (DE. 2017)

The “forfeiture by wrongdoing” hearsay exception is “aimed at removing the otherwise powerful incentive for defendants to intimidate, bribe, and kill the witnesses against them—in other words, it is grounded in the ability of courts to protect the integrity of their proceedings.”

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FORFEITURE HEARING

D.R.E., Rule 104: Preliminary question

decided by judge

Court not bound by rules of evidence

Hearsay allowed

Affidavits allowed

Consider calling lead investigator

Consider calling expert to explain intimidation

dynamics

PROVING FORFEITURE BY WRONGDOING

Applies to potential witnesses – a formal proceeding need not be under way

U.S. v. Houlihan, 92 F.3d 1271 (1st Cir. 1996)

Can use unavailable witness’s hearsay statements as evidence at hearing

Davis v. Washington, 547 U.S. 813, 833 (2006)

Intent to make witness unavailable need not be only motive

U.S. v. Dhinsa, 243 F.3d 635 (2d Cir. 2001)


GOING FORWARD

◉Recognize and address acts of intimidation◉Educate and protect victims◉Make effective use of intimidation evidence

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JohnWilkinsonAttorneyAdvisor

1100HStreetNW,Suite310Washington,DC20005

P:(202)596-4229F:(202)393-1918

[email protected]

COUNTERING WITNESS INTIMIDATION - DVCC Delaware · COUNTERING WITNESS INTIMIDATION AEQUITAS:...

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